Nepal v. U.S. Dep't of State

Decision Date12 May 2022
Docket NumberCase No. 1:21-cv-01073 (TNM)
Parties Ashok NEPAL, et al., Plaintiffs, v. The UNITED STATES DEPARTMENT OF STATE, et al., Defendants.
CourtU.S. District Court — District of Columbia

Nicolette Glazer, Law Offices of Larry R. Glazer, La Quinta, CA, for Plaintiffs.

Jeremy S. Simon, DOJ-USAO, Washington, DC, Joseph F. Carilli, Jr., U.S. Attorney's Office, Washington, DC, for Defendants.



The United States issues up to 55,000 "diversity visas" each year, permitting citizens of otherwise underrepresented countries to move here. Plaintiffs (the Applicants) were selected as potential recipients of diversity visas in the 2021 annual lottery (DV2021) run by the State Department. But as the COVID-19 pandemic intensified, the Department deprioritized adjudicating diversity visas and the Applicants never received a final decision on their applications.

They sued, alleging the Department and its agents (collectively, the Government) violated federal law in failing to timely resolve their applications. The Government now moves to dismiss. In its view, those claims are moot because the Immigration and Nationality Act (INA) says DV2021 applicants are not eligible to receive a visa after the fiscal year expires. The Government also argues the Applicants lack standing and that their claims fail on the merits. The Court will grant the motion to dismiss. Because the Department cannot grant Applicants a diversity visa after the fiscal year has expired, most of their claims for injunctive and declaratory relief are moot. The remaining claims either must be dismissed for lack of subject matter jurisdiction or for failure to state a claim.


Each year, the State Department issues up to 55,000 "diversity visas" to applicants from countries with low levels of immigration to the United States. See 8 U.S.C. § 1153(c) ; id. § 1151(e). The diversity visa process is "competitive and complicated." Almaqrami v. Pompeo , 933 F.3d 774, 776 (D.C. Cir. 2019). That process begins with an applicant entering a random "lottery" held every fiscal year.1 See 8 U.S.C. § 1153(e) ; 22 C.F.R. § 42.33(b)(c). Lottery winners (or "selectees") then submit an immigrant visa application (Form DS-260) and other required documents to the Kentucky Consular Center (KCC), eventually receiving a "documentarily qualified" certification and a visa number.2 See 8 U.S.C. § 1202(a), (b) ; 22 C.F.R. § 42.61 – 42.67. Once a selectee receives a visa number, he may schedule a consular interview. See 8 U.S.C. § 1202(h) ; 22 C.F.R. § 42.62. But a consular officer will not issue a visa until the officer determines a selectee is eligible. See 8 U.S.C. § 1201(g).

Critically here, the INA says a selectee "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)(II) ; see also 22 C.F.R. § 42.33(d) (providing that, at the end of the fiscal year, "the Department of State will consider approval of the petition to cease to be valid"). In practice, that means the Department will not issue a diversity visa "after midnight on September 30 of the selection [fiscal year]." Almaqrami , 933 F.3d at 777.

Unsurprisingly, COVID-19 seriously degraded the State Department's ability to process immigrant visa applications. In March 2020, "at the onset of the global [ ] pandemic, the State Department suspended all routine visa processing services, including under DV21." Gorgadze v. Blinken , No. 21-cv-2421, 2021 WL 4462659, at *2 (D.D.C. Sept. 29, 2021). Soon after, President Trump issued Presidential Proclamation 10014, prohibiting diversity visa selectees from entering the United States. See Proclamation 10014 (PP10014), 85 Fed. Reg. 23,441 (Apr. 22, 2020). The proclamation exempted "any alien whose entry would be in the national interest," id. at 23,443 § 2(b)(ix), but it made no specific exception available for diversity-visa applicants.

The State Department interpreted PP10014 as limiting its ability to issue diversity visas and stopped adjudicating DV2021 applications altogether. See Gorgadze , 2021 WL 4462659, at *2 ; Am. Compl. ¶ 901, ECF No. 13. Because of these policy changes, the Applicants say, "no principal DV2021 approved petitioner residing overseas was scheduled for an interview from 1 October 2020 until 11 March 2021." Am. Compl. ¶ 914.

The Department eventually relaxed some of its COVID-related restrictions. In July 2020, it issued guidance creating the Diplomacy Strong framework, a "phased approach to the resumption of routine visa services." Filazapovich v. Dep't of State , 560 F. Supp. 3d 203, 218 (D.D.C. 2021) (quotation omitted). Still, "the adjudication of diversity visas would remain suspended unless a diversity visa applicant was excepted by [PP10014]." Am. Compl. ¶ 902. In November 2020, the Department implemented a new four-tiered approach, relieving consular posts from the strict requirements of Diplomacy Strong but still relegating diversity visas to the lowest priority. See id. ¶ 909.

Shortly after taking office, President Biden revoked PP10014 and issued new guidance to the State Department, but he did not rescind the Department's four-tier approach. See Am. Compl. ¶ 915; Presidential Proclamation 10149, 86 Fed. Reg. 11,847 (Feb. 24, 2021). According to the Applicants, "Defendants [ ] instructed consulates that it [would] remain in place beyond ... the fiscal year." Am. Compl. ¶ 917. As of August 2021, "[t]he KCC prime contractor stopped all DV2021 processing." Supp. Compl. ¶ 441, ECF No. 49. All told, the Department issued only 17,344 diversity visas out of the 55,000 available slots for 2021.3


Plaintiffs are 153 principal selectees in the 2021 diversity visa program and their derivative beneficiaries.4 See Pl.’s Opp. to MTD (Opp.) 7, ECF No. 51. Each submitted the required DS-260 and accompanying documents and were accordingly eligible for a consular interview. See Notice of Withdrawal, Ex. 1 ¶¶ 11–941, ECF No. 42-1; Supp. Compl. ¶¶ 17–402, 403. Yet because of the Department's COVID-related polices, the Applicants allege, they "have received no meaningful response" from the Department or its agents about their DV2021 applications. Opp. 7.

Applicants sued in April 2021, alleging the Government had violated the INA, 8 U.S.C. § 1101 et seq. ; the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. ; the Fifth Amendment's Due Process Clause, U.S. Const. amend. V ; and the Rehabilitation Act, 29 U.S.C. § 701 et seq. See Compl. ¶¶ 891–964, ECF No. 1. As the end of the fiscal year approached, they sought a temporary restraining order requiring the Department to (1) transfer certain Plaintiffs’ DV2021 applications from KCC to the Prague consulate and (2) adjudicate pending DV2021 applications before the deadline expired. See Mot. for TRO and Emergency Adjudication, ECF No. 31. This Court denied emergency relief, explaining that it would "not insert itself into this executive branch program at the eleventh hour to pick winners and losers." Mem. Order 4, ECF No. 36.

Applicants later supplemented their complaint to add allegations concerning the Government's conduct between July 2021 and September 2021.5 See ECF No. 49; see also Opp. 10–13 (listing eleven remaining claims). The fiscal year passed, and the Government now moves to dismiss; its main argument is that expiration of the INA's statutory deadline moots Applicants’ claims. See MTD, ECF No. 47. The motion is ripe for resolution.


A complaint must contain "a short and plain statement of the grounds for the court's jurisdiction," as well as a "statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). A defendant may move to dismiss for failure to satisfy either of these requirements. See id. 12(b)(1), (6).

When a defendant moves to dismiss for lack of subject matter jurisdiction, the court must presume that "a cause lies outside [its] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and the plaintiff bears the burden of overcoming that presumption, Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). While the Court will accept factual allegations in the complaint as true, those allegations "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Common Purpose USA, Inc. v. Obama , 227 F. Supp. 3d 21, 21 (D.D.C. 2016) (cleaned up). And the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharma., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005).

To survive a motion to dismiss for failure to state a claim, by contrast, a complaint need only contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). And while a complaint need not contain "detailed factual allegations," it must offer more than "a formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.


The Court begins, as it must, with jurisdiction. See Ex Parte McCardle , 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868) ("Without jurisdiction the court cannot proceed at all in any cause.").

A core limitation on Article III jurisdiction is the doctrine of standing. To press his claims in federal court, a plaintiff must establish the "irreducible constitutional minimum" of standing: that he has suffered (1) an injury in fact (2) caused by, and...

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