Gomez v. Trump

• Decision Date: 30 September 2020
• Docket Number: Case No. 20-cv-01856 (APM), Case No. 20-cv-01926 (APM), Case No. 20-cv-02128 (APM),Case No. 20-cv-01419 (APM), Case No. 20-cv-1907 (APM)
• Citation: 490 F.Supp.3d 276
• Parties: Domingo Arreguin GOMEZ, et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants. Mohammed Abdulaziz Abdul Mohammed, et al., Plaintiffs, v. Michael R. Pompeo, et al., Defendants. Afsin Aker, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants. Claudine Ngum Fonjong, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants. Chandan Panda, et al., Plaintiffs, v. Chad F. Wolf, et al., Defendants.
• Court: U.S. District Court — District of Columbia

490 F.Supp.3d 276

Domingo Arreguin GOMEZ, et al., Plaintiffs,

v.Donald J. TRUMP, et al., Defendants.

Mohammed Abdulaziz Abdul Mohammed, et al., Plaintiffs,

v.Michael R. Pompeo, et al., Defendants.

Afsin Aker, et al., Plaintiffs,

v.Donald J. Trump, et al., Defendants.

Claudine Ngum Fonjong, et al., Plaintiffs,

v.Donald J. Trump, et al., Defendants.

Chandan Panda, et al., Plaintiffs,

v.Chad F. Wolf, et al., Defendants.

Case No. 20-cv-01419 (APM)

Case No. 20-cv-01856 (APM)

Case No. 20-cv-01926 (APM)

Case No. 20-cv-02128 (APM)

Case No. 20-cv-1907 (APM)

United States District Court, District of Columbia.

Signed September 30, 2020

Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, Matthew David Ingber, Pro Hac Vice, Mayer Brown LLP, New York, NY, Esther H. Sung, Pro Hac Vice, Karen C. Tumlin, Pro Hac Vice, Justice Action Center, Los Angeles, CA, Jordan Elizabeth Cunnings, Pro Hac Vice, Nadia H. Dahab, Pro Hac Vice, Stephen Manning, Pro Hac Vice, Tess Hellgren, Pro Hac Vice, Innovation Law Lab, Portland, OR, Laboni Hoq, Pro Hac Vice, Law Office of Laboni A. Hoq, South Pasadena, CA, Jesse Matthew Bless, American Immigration Lawyers Association, Andrew John Pincus, Mayer Brown LLP, Washington, DC, Cleland B. Welton, II, Pro Hac Vice, Mayer Brown, for Plaintiffs Domingo Arreguin Gomez, Mirna S., Vicenta S.

Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, New York, NY, Jordan Elizabeth Cunnings, Pro Hac Vice, Nadia H. Dahab, Innovation Law Lab, Portland, OR, Andrew John Pincus, Mayer Brown LLP, Washington, DC, for Plaintiffs 3Q Digital, Carmen Ligia Vidal Pimentel, Iwundu Epouse Kouadio Golden, Farangis Kurbonova, Asse International, Inc., Claudio Alejandro Sarni Jimenez, Superior Scape, Inc., Nazif Alam, Shipco Transport, Inc., Nancy Abarca, Angela Sinon, Powertrunk, Inc., M.S., Euraupair International, Inc., Daniel Chibundu Nwankwo, Jodi Lynn Karpes, Fatma Bushati, Aya Nakamura, Juan Carlos Rosario Lebron, Loida Phelps, Seiu Committee of Interns and Residents, Shyam Sundar Koirala, Aja Tamamu Mariama Kinteh.

Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, New York, NY, Curtis Lee Morrison, Law Office of Curtis Morrison, Huntington Beach, CA, Rafael N. Urena, The Law Office of Rafael Urena, Los Angeles, CA, for Plaintiffs Claudine Ngum Fonjong, Mohammed Abdulaziz Abdul Mohammed, Itidal Mohammedsalih T. Mahjoub, A Minor, Yurii Ishchenko, E.I., Pawel Mieczkowski, Farid Kurbanov, Graeme John Ward, Dmitrii Pavlovich Velikii.

Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, New York, NY, Curtis Lee Morrison, Law Office of Curtis Morrison, Huntington Beach, CA, for Plaintiffs Festus Suh Neba, M.S., M.A., Cathy Bofumbo Elou, Elie Varangba Gia, George Samir Messiha Dawood, Youstina Samir Baghdady Azer, K.G.S.M., Alexey Nicolaevich Litvinov, Natalia Victorovna Litvinova, Elena Kirillovna Stavrakova.

Charles Herman Kuck, Kuck Immigration Partners LLC, Atlanta, GA, Jeff Joseph, Joseph & Hall, P.C., Aurora, CO, for Plaintiff Afsin Aker Kuck Baxter Immigration LLC 365 Northridge Rd., Suite 300 Atlanta, GA 30350 United Sta 4049498154.

Charles Herman Kuck, Kuck Immigration Partners LLC, Atlanta, GA, Curtis Lee Morrison, Law Office of Curtis Morrison, Huntington Beach, CA, Jeff Joseph, Joseph & Hall, P.C., Aurora, CO, for Plaintiff Afsin Aker.

Charles Herman Kuck, Kuck Immigration Partners LLC, Atlanta, GA, for Plaintiffs Mustafa Dogan Eker, Dilara Ayaydin, Emre Tarman, Erdal Tarman, Mustafa Madazli, Utkirbek Abdumominov, Danat Shekhe, Marina Karpova, Viktoriia Shekhe.

Bradley Bruce Banias, Wasden Banias LLC, Mount Pleasant, SC, Geoffrey Forney, Wasden Banias LLC, Philadelphia, PA, for Plaintiffs Chandan Panda, Lokesh Ghanta, Sruthi Kasam, Karan Murgai, Lokesh Ramamurthy, Renukadevi Ravichandran, Mounika Damarla, Aman Wadhwa.

Christopher Thomas Lyerla, Glenn M. Girdharry, James Wen, Thomas Benton York, U.S. Department of Justice, Johnny Hillary Walker, III, William Chang, Robert Aaron Caplen, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants Donald J. Trump, Michael Pompeo.

Christopher Thomas Lyerla, Glenn M. Girdharry, James Wen, Thomas Benton York, U.S. Department of Justice, Johnny Hillary Walker, III, William Chang, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants William Barr, United States Department of State, United States Department of Homeland Security, Chad F. Wolf.

Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, New York, NY, Curtis Lee Morrison, Law Office of Curtis Morrison, Huntington Beach, CA, Glenn M. Girdharry, U.S. Department of Justice, Washington, DC, Rafael N. Urena, The Law Office of Rafael Urena, Los Angeles, CA, for Defendant A Minor.

MEMORANDUM OPINION AND AMENDED ORDER

Amit P. Mehta, United States District Judge In a Memorandum Opinion and Order issued on September 4, 2020, the court ordered Defendants to "undertake good-faith efforts, directly and through their designees, to expeditiously process and adjudicate DV-2020 diversity visa and derivative beneficiary applications and issue or reissue diversity and derivative beneficiary visas to eligible applicants by September 30, 2020, giving priority to the named diversity visa Plaintiffs," in these consolidated actions. Though Defendants have issued more than 3,000 diversity visas since the court's order, many of the Plaintiffs’ applications have still not been finally adjudicated, and approximately 40,000 of the 55,000 diversity visas Congress has made available for Fiscal Year 2020 remain unissued. Plaintiffs fear that if no further relief is ordered, these unissued visas will lapse pursuant to the Immigration and Nationality Act ("INA"), which states that diversity visa selectees "shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected." 8 U.S.C. § 1154(a)(1)(I)(II). The fiscal year expires today, September 30, 2020, at 11:59 p.m. Plaintiffs ask the court to certify two classes of DV-2020 Selectees who have not yet received or been reissued visas, and to order Defendants to reserve 30,000 diversity visa numbers pending final resolution of this matter and to renew any FY 2020 diversity visas that expire after the end of the fiscal year. For the reasons that follow, the court grants in part and denies in part Plaintiffs’ motions.

I. BACKGROUND

In its Memorandum Opinion and Order issued on September 4, 2020, the court held that Plaintiffs were likely to succeed on their claims that the U.S. Department of State (1) had arbitrarily and capriciously refused to review and adjudicate DV-2020 Selectees’ visa applications pursuant to the State Department's implementation of Presidential Proclamation 10014 (the court refers to this as the "No-Visa Policy"), (2) had unreasonably delayed in processing those applications, and (3) had arbitrarily and capriciously failed to explain its exclusion of such applications from its "COVID-19 Guidance" setting forth the categories of visa applications eligible for "mission critical" and "emergency" processing. See Gomez v. Trump , No. 20-CV-01419 (APM), 485 F.Supp.3d 145, 189–200 – ––––, (D.D.C. Sept. 4, 2020).

As a remedy for these violations, the court ordered Defendants (other than President Trump) to "undertake good-faith efforts, directly and through their designees, to expeditiously process and adjudicate DV-2020 diversity visa and derivative beneficiary applications and issue or reissue diversity and derivative beneficiary visas to eligible applicants by September 30, 2020, giving priority to the named diversity visa Plaintiffs," in these consolidated actions. Id. at 205, . The court declined to rule on Plaintiffs’ request to order Defendants to reserve unissued DV-2020 visas past the September 30 deadline or until a final adjudication on the merits, but promised to revisit the issue closer to the deadline. Id. at 205, . The court also denied without prejudice the Gomez and Aker Plaintiffs’ motions to certify classes of DV-2020 Selectees, finding that the relief issued under the Administrative Procedure Act would benefit all putative class members. Id. at 203–04, 204–06, .

Between September 5, 2020 and September 24, 2020, when the court last received an update on Defendants’ efforts to comply with the court's Order, the Department of State had adjudicated 5,093 diversity visa applications, issuing 3,208 diversity visas and refusing 1,885 applications. See Defs.’ Suppl. Report On Good Faith Efforts to Implement the Prelim. Inj., ECF No. 143 [hereinafter Defs.’ Suppl. Report], Decl. of Brenda L. Grewe, ECF No. 143-2 [hereinafter Grewe Decl.], ¶ 5. These additional visa issuances bring the total number of diversity visas issued for FY 2020 to approximately 15,401¹ as of September 24, 2020, roughly 28 percent of the 55,000 visas annually afforded under the INA. Id. ¶ 6.

During the same time, and consistent with the court's direction to prioritize them, the State Department issued 523 visas to the 974 Named Plaintiffs with DV-2020 applications in these consolidated actions. Defs.’ Suppl. Report, Decl. of Laura Chamberlin, ECF No. 143-1 [hereinafter Chamberlin Decl.], ¶¶ 3–4. Consular officers refused visas to 149 Named Plaintiffs pursuant to Section 221(g) of the INA, 8 U.S.C. § 1201(g), and refused 73 of their applications on other grounds. Id. ¶ 5. An additional 164 Named Plaintiffs were scheduled for interviews as of September 24, but had not yet received final decisions on their applications.

The INA provides that foreign nationals selected in the DV lottery "shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected," in this case, September 30, 2020. 8 U.S.C. § 1154(a)(1)(I)(II) ; see also 22 C.F.R. § 42.33(a)(1) ; 31 U.S.C. § 1102. With the September 30, 11:59 p.m. deadline rapidly approaching, Plaintiffs contend that Defendants’ efforts to comply with the court's September 4 Order are too little, too late. See Pls.’ Joint Submission Regarding Further...