Gorgadze v. Blinken

• Decision Date: 29 September 2021
• Docket Number: Civil Action 21-2421 (JDB)
• Parties: VLADIMIR GORGADZE, et al., Plaintiffs, v. ANTHONY BLINKEN, Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

VLADIMIR GORGADZE, et al., Plaintiffs,
v.
ANTHONY BLINKEN, Secretary of State, et al., Defendants.

Civil Action No. 21-2421 (JDB)

United States District Court, District of Columbia

September 29, 2021

MEMORANDUM OPINION

JOHN D. BATES UNITED STATES DISTRICT JUDGE

Plaintiff Vladimir Gorgadze is a Russian national who was selected to participate in the annual Diversity Visa (“DV”) program for the 2021 fiscal year (“DV21”). He, his wife (plaintiff Elena Petukhova), and his minor son (plaintiff Mikhail Gorgadze), submitted visa applications in August 2020 in hopes that they would be selected for three of the 55, 000 DVs available for DV21. However, plaintiffs have not been contacted by U.S. immigration officials regarding the status of their applications since they submitted the required documentation in January 2021. On September 14, just sixteen days before the September 30, 2021 statutory deadline for the issuance of DVs under DV21, plaintiffs filed the instant action seeking a temporary restraining order requiring the government to immediately interview them and adjudicate their applications or to set aside DVs for them to be adjudicated after the close of the 2021 fiscal year. The government has moved to dismiss the complaint, arguing that plaintiffs lack standing and have failed to state a claim on which relief can be granted. Because plaintiffs have not met the high bar for obtaining the emergency relief sought, the Court will deny their motion for a temporary restraining order without ruling on the government's motion to dismiss at this time.

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Background

I. The Diversity Visa Program

Congress established the DV program under the Immigration and Nationality Act (“INA”), “provid[ing] for up to 55, 000 immigrant diversity visas to be distributed each fiscal year to foreign nationals that hail from countries with historically low levels of immigration to the United States.” Filazapovich v. Dep't of State, No. 21-cv-943 (APM), 2021 WL 4127726, at *2 (D.D.C. Sept. 9, 2021) (citing 8 U.S.C. §§ 1151(e), 1153(c)). Unsurprisingly, millions of would-be immigrants apply for the program each year to vie for one of the 55, 000 annual DVs. Id. (citing Gomez v. Trump (“Gomez I”), 485 F.Supp.3d 145, 159 (D.D.C. 2020)). For example, “in Fiscal Year 2018 there were approximately 14.7 million qualified entries.” Gomez I, 485 F.Supp.3d at 159.

Among those millions, a much smaller number of “selectees” are picked at random by lottery and given the opportunity to apply for DVs for themselves and their dependent immediate family members. See 22 C.F.R. § 42.33(c); U.S. Dep't of State Bureau of Consular Affs., Instructions for the 2022 Diversity Visa Program at 5-6 (last visited Sept. 29, 2021), https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2022-Instructions-Translations/DV-2022-Instructions-and-FAQsEnglish.pdf. Each selectee then “submit[s] an application and various documents to be eligible for a visa number.” Almaqrami v. Pompeo, 933 F.3d 774, 776-77 (D.C. Cir. 2019). Once the selectee is assigned a visa number, he or she must complete Form DS-260 and submit scanned copies of all required supporting documents (birth certificates, police records, military records, etc.) to the Kentucky Consular Center (“KCC”). See 9 Foreign Affs. Manual (“FAM”) § 502.6-4(d)(1). KCC reviews the submitted materials, notifies the applicant of any missing or illegible documents, and screens for potential inconsistencies or indications of fraud. Id. If the submitted materials are complete and

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accurate, KCC will deem the application “documentarily qualified” and schedule the applicant for an interview at his or her local consular office when his or her lottery number is “about to become current.” Id. § 502.6-4(c)(2)(c), (d)(2); see also 8 U.S.C. § 1202(b).

“[T]he availability of interview appointments may depend on the available resources and competing demands of consulates in an applicant's country of residence.” Gjoci v. Dep't of State, Case No. 1:21-cv-00294-RCL, 2021 WL 3912143, at *2 (D.D.C. Sept. 1, 2021). Interviews for documentarily qualified lottery selectees are “scheduled in order of their rank number” with the consular post corresponding to the selectee's country of residence. Id. “KCC uses the [applicant's randomly assigned] rank number, as is required by statute, to determine the order in which cases are eligible to be scheduled for appointments.” Decl. of Morgan Miles (“Miles Decl.”) [ECF No. 11-3] ¶ 6. Accordingly, “DV selectees with a low rank order, as reflected in their case number, are more likely to get the opportunity to interview, while those with higher numbers are less likely to be scheduled.” Id.; see also 22 C.F.R. § 42.33(e). After processing the application and confirming the applicant's eligibility through the interview, “the State Department ‘shall' issue . . . a diversity visa” to the applicant and qualifying dependents. Almaqrami, 933 F.3d at 777 (quoting 8 U.S.C. § 1153(c)); see also 22 C.F.R. §§ 40.6, 42.33(d), 42.81(a). However, no DVs may be issued after the end of the fiscal year for which the application was submitted. 22 C.F.R. § 42.33(a)(1), (d), (f); 8 U.S.C. § 1154(a)(1)(I)(ii)(II). “If the selectee does not receive a visa by the end of the fiscal year, . . . he is out of luck.” Gomez I, 485 F.Supp.3d at 159; see also Almaqrami, 933 F.3d at 777.

As this scheme makes clear, “[t]hose selected for the [DV] program are not guaranteed to receive a visa-only the opportunity to apply for one.” P.K. v. Tillerson, 302 F.Supp.3d 1, 3 (D.D.C. 2017). Indeed, each year there are far more applicants selected for the program than DV

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recipients. Under DV21, for example, there were 71, 817 principal selectees; including their dependents, the total “selectee” applicant pool was 137, 969 vying for just 54, 850 DVs. Miles Decl. ¶ 4; U.S. Dep't of State, Visa Bulletin for Oct. 2020 (Sept. 8, 2020), https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html.

II. Diversity Visa Processing in Russia During the COVID-19 Pandemic

Even before the COVID-19 pandemic, the State Department's overall capacity in Russia was severely curtailed over a number of years, impacting its ability to process and issue DVs to Russian nationals like plaintiffs. In 2017, “the U.S. Mission to Russia had to reduce staff by approximately two thirds.” Decl. of Francis Chris Lanning (“Lanning Decl.”) [ECF No. 11-2] ¶ 8. Since that time, due to expulsions apparently unrelated to COVID-19, the number of consular officers in Moscow has dwindled to just seven. Id. And three of the four consular facilities in Russia have closed, concentrating all operations at the U.S. Embassy in Moscow. Id. ¶ 10.

The pandemic has greatly exacerbated the effects on U.S. visa processing both globally and locally. In March 2020, at the onset of the global COVID-19 pandemic, the State Department suspended all routine visa processing services, including under DV21. Id. ¶ 2. The following month, then-President Trump issued Presidential Proclamation 10014, which temporarily suspended the entry of immigrants into the United States pursuant to 8 U.S.C. § 1182(f) and 8 U.S.C. § 1185(a). Proclamation No. 10014, 85 Fed. Reg. 23, 441 [ECF 4-10] (Apr. 27, 2020).^[1]“Although these Proclamations provided certain exceptions in ‘the national interest' to the general suspension of immigrant entry, there was ‘no specific national interest exception[] available for diversity visa applicants[.]'” Pushkar v. Blinken, Civ. A. No. 21-2297 (CKK), 2021 WL 4318116,

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at *2 (D.D.C. Sept. 23, 2021) (quoting Gomez I, 485 F.Supp.3d at 162). And in response to the presidential directive to suspend entry, the State Department suspended all visa-issuance outside of “mission critical categor[ies]” as well. Id. This resulted in a complete shutdown on adjudication of DV applications because-if no DV beneficiaries would be permitted to enter the U.S., it would be “a waste of scant resources” to “reserve a limited number of interview spots for them ultimately to be refused a visa.” See Decl. of Brianne Marwaha [ECF No. 4-5] ¶ 5. As a result, the DV21 lottery was postponed, but the State Department indicated its intention to resume DV21 interviews on schedule in October 2020. See U.S. Dep't of State, DV-2021 Entrant Status Check Announcement (Apr. 27, 2020) [ECF No. 4-6].

In July 2020, the State Department initiated a “phased resumption of routine services, ” Lanning Decl. ¶ 2, which prioritized processing multiple family-related categories of immigration beneficiaries over DV21 applicants, see id. Ex. 1 at 2; id. Ex. 2 at 4. In November 2020, the State Department issued prioritization guidance “to inform decision-making as [consular] posts attempted to resume full routine services.” Lanning Decl. ¶ 3. The November 2020 guidance once again followed “a tiered and hierarchical approach, ” which “recogniz[ed] that some family preference, employment preference, and diversity visa cases should be scheduled and adjudicated each month, to the extent [a] post has capacity.” Id. Ex. 3 at 1-2. Still, the November guidance placed DVs in the lowest-priority fourth tier. Id. at 2. President Biden rescinded Proclamation 10014 on February 24, 2021, but the November 2020 prioritization guidance remained in effect. See Proclamation No. 10149, 86 Fed. Reg. 11847 (Mar. 1, 2021).

Meanwhile, regardless of the global prioritization guidance, Embassy operations in Moscow were ground to a halt for much of 2020, and things have not gotten much better in 2021. “[A]ll local staff work[ed] from home from March 2020 until autumn of that year, ” while “[a]ll

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consular officers . . . were reassigned to the American Citizen Services Unit, to focus on assisting thousands of U.S. citizens to depart Russia.” Lanning Decl. ¶ 7. “A second COVID-19 wave in November 2020 caused the...