Museboyina v. Jaddou
| Decision Date | 30 September 2022 |
| Docket Number | 4:22CV3169 |
| Parties | HARISH MUSEBOYINA, Plaintiff, v. UR JADDOU, Director, U.S. Citizenship and Immigration Services, and ANTONY BLINKEN, Secretary, United States Department of State, Defendants. |
| Court | U.S. District Court — District of Nebraska |
MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND REQUIRING BRIEFING ON SUBJECT MATTER JURISDICTION
This case is before the Court on plaintiff Harish Museboyina's September 22, 2022, Motion for Temporary Restraining Order. Filing 15. Defendant Ur Jaddou, Director of the U.S Citizenship and Immigration Services (USCIS),[1] filed an Objection to Plaintiff's Motion for a Temporary Restraining Order, Filing 19, on September 28, 2022 pursuant to an Order for an expedited response. Filing 17. In the same Order, the Court opined that “[i]n this case, the issues are essentially legal, so the Court does not believe an evidentiary hearing is required.” Filing 17 at 1. After reviewing both parties' submissions, the Court is convinced that this is true, so the Court has resolved the Motion for Temporary Restraining Order without an evidentiary hearing or oral arguments based on the parties' written submissions and the record as a whole. For the reasons stated below Museboyina's Motion for Temporary Restraining Order is denied.
Plaintiff Harish Museboyina is a citizen and national of India who maintains a residence in Portland, Oregon. Filing 14 at 2 (¶ 1).[2] He has an application for a permanent resident visa (I-485) pending with a “priority date” of September 27, 2013. Filing 16 at 7; Filing 18-2 at 1-2 (Nunez Decl., ¶ 5 ( Museboyina's priority date). The Department of State (DOS) issues “visa bulletins” indicating the cut-off dates for visa applications in various categories and for various nationalities.[3] The parties agree that, based on Museboyina's “priority date” falling before the cutoff date at the time of his application, a visa was available to Museboyina in the EB-2 category[4]for a person whose country of origin is India. Filing 16 at 7; Filing 18-2 at 2 (Nunez Decl., ¶¶ 5- 6). Museboyina's application was also current according to the September 2022 Visa Bulletin because the cut-off date for EB-2 applicants from India in that bulletin was December 1, 2014. Filing 14 at 15 (¶ 94); Filing 18-3 at 4. His application is still pending. Filing 18-2 at 2 (¶ 6).
On September 6, 2022, the United States Citizenship and Immigration Service (USCIS) issued a memo stating in pertinent part the following:
Filing 14-2 at 1 (emphasis in the original). The October 2022 Visa Bulletin, which Museboyina asserts was issued the next day, indicates that the priority date for the EB-2 preference category for applicants chargeable to India will “retrogress” to April 1, 2012. Filing 18-4 at 4. Thus, as of the start of Fiscal Year 2023 (FY2023) on October 1, 2022, Museboyina's application cannot be approved because the cut-off date is before his priority date of September 27, 2013.
Museboyina asks the Court for a Temporary Restraining Order (TRO) to “restrain, enjoin, and invalidate Defendants' Retrogression Policies,” Filing 16 at 19, “to ensure [he] remain[s] eligible for adjustment of status [to permanent resident] when fiscal year 2023 immigrant visas become available,” Filing 16 at 1. He contends that these “Retrogression Policies” defy congressional intent, and as of October 1, 2023, will unfairly deprive him of his priority date for his application for a visa for permanent resident status and delay adjudication of that application, possibly for years. Filing 16 at 4-5. Museboyina bases much of his argument on 8 U.S.C. § 1255(a) and (b), which he argues require that he have a visa immediately available only at the time of application, not at the time of approval. Filing 16 at 9-10.
The Director argues that visa “retrogression” is based on the strict statutory limits imposed by Congress on the number of visas that may be allocated each fiscal year in particular categories to applicants of particular nationalities, but it is not “a policy.” Filing 19 at 3. Furthermore, the Director argues that retrogression is used by DOS and USCIS to maintain, not defy, congressional intent regarding immigrant visa allocation within congressionally prescribed numerical limitations. Filing 19 at 5. The Director also disputes Museboyina's reading of § 1255, arguing that § 1255(b) makes clear that a visa must be available upon approval of an application. Filing 19 at 10.
Rule 65 of the Federal Rules of Civil Procedure provides, in pertinent part, “The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney.” Fed.R.Civ.P. 65(b)(1). Rule 65(b)(1) imposes significant requirements for a TRO issued without notice. Fed.R.Civ.P. 65(b)(1)(A)-(B); Tumey v. Mycroft AI, Inc., 27 F.4th 657, 665 (8th Cir. 2022) (). In this case, however, the Director had notice of Museboyina's request for a TRO, the Court has required the Director's response, and both parties are represented by counsel. Nevertheless, the Court will assume that any TRO issued in this instance will still need to adhere to the durational limits of Rule 65(b).
Rule 65(b) does not identify the standard the Court must apply in deciding whether or not to grant a request for a TRO. “[T]he standard for analyzing a motion for a temporary restraining order is the same as [the standard for] a motion for a preliminary injunction.” Tumey, 27 F.4th at 665. Thus, to obtain either a TRO or a preliminary injunction, “ʻ[a] plaintiff . . . must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.'” Tumey, 27 F.4th at 664 (bracketed numbers inserted) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008), and also citing Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc)).[5] No single factor is dispositive. Id. at 665. Furthermore, a TRO is an extraordinary remedy never awarded as of right; the primary function of a TRO is preserving the status quo until the district court has an opportunity to grant full effective relief; and requiring a non-movant to take affirmative action goes beyond the purpose of a TRO. Id. Lastly, the burden of establishing the propriety of a TRO is on the movant. Id.
As a prefatory matter, the Court finds that the relief Museboyina seeks cannot properly be granted in a TRO. Museboyina seeks a dramatic alteration of the status quo, not maintenance of it, by setting aside the agencies' decades-long system of visa allocation affecting all immigrant visa applicants. See Tumey, 27 F.4th at 665. Museboyina also seeks an order for affirmative action by the Director to ensure he remains eligible for a visa in fiscal year 2023, which is also not the proper purpose of a TRO. See id. Nevertheless, the Court will consider the Winter factors as well. In this case, the Court finds that the first and second Winter factors are dispositive of Museboyina's request for a TRO. The remaining factors do not change that disposition, so the Court will not explicitly consider them.
The Eighth Circuit Court of Appeals has stated “that ‘[w]hile no single factor is determinative, the probability of success factor is the most significant.'” Tumey, 27 F.4th at 665 (quoting Carson v. Simon, 978 F.3d 1051, 1059 (8th Cir. 2020) (cleaned up)). This factor requires the movant to demonstrate “at least a ‘fair chance of prevailing.'” Wildhawk Invs., LLC v. Brava I.P., LLC, 27 F.4th 587, 593 (8th Cir. 2022) (quoting Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs, 826 F.3d 1030, 1041 (8th Cir. 2016)). The likelihood of success is considered in light of the elements of the movant's claim. See, e.g., 301, 712, 2103 & 3151 LLC v. City of Minneapolis, 27 F.4th 1377, 1383 (8th Cir. 2022) ().
Museboyina asserts that his claim is pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 706(1), which gives courts authority to compel agency action if the agency unlawfully withholds agency action. Filing 16 at 8. He argues that the agencies are unlawfully withholding approval of his visa application because of the Retrogression Policies, contrary to the text, structure, and history of 8 U.S.C. § 1255(a), which he argues reveal that an immigrant visa does not have to be immediately available at the time of adjudication or approval, only at the time of application. Filing 16 at 9. He then argues that 8 U.S.C. § 1255(b) assumes that, if there is an application for adjustment of status filed, there will be a visa number available for the applicant because Congress...
To continue reading
Request your trial