Nguyen v. U.S. Dep't of Homeland Sec., Case No. 20-cv-00718 (APM)

• Decision Date: 18 May 2020
• Docket Number: Case No. 20-cv-00718 (APM)
• Citation: 460 F.Supp.3d 27
• Parties: Jessica NGUYEN, et al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY et al., Defendants.
• Court: U.S. District Court — District of Columbia

460 F.Supp.3d 27

Jessica NGUYEN, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY et al., Defendants.

Case No. 20-cv-00718 (APM)

United States District Court, District of Columbia.

Signed May 18, 2020

460 F.Supp.3d 30

James O. Hacking, III, Hacking Law Practice, LLC, St. Louis, MO, for Plaintiffs.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

Plaintiffs in this action are a mix of United States citizens, lawful permanent residents, and diversity visa lottery winners, who seek a temporary restraining order preventing Defendants from implementing and enforcing Presidential Proclamation 10014, Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak, 85 Fed. Reg. 23,441 (Apr. 22, 2020) ("Proclamation"). Because Plaintiffs have failed to establish Article III standing, the court denies Plaintiffs' motion.

I.

A.

On April 22, 2020, President Trump signed Presidential Proclamation 10014, which temporarily suspends the "entry into the United States" of certain classes of immigrants who did not already have a valid immigrant visa or travel document as of April 23, 2020, the effective date of the Proclamation. 85 Fed. Reg. at 23,442 –43 §§ 1, 2(a), 5. The Secretaries of State and Homeland Security are tasked with implementing the Proclamation as it applies to visas and aliens, respectively. Id. at 23,443 § 3.

As relevant here, the Proclamation suspends entry of most immigrants with family-based and diversity visas, subject to certain exceptions not relevant for present purposes. See generally id. The family-based visa program allows United States citizens and permanent residents to "sponsor" non-citizen family members, or "beneficiaries," for immigrant visas. See 8 U.S.C. §§ 1151, 1153(a). A family member seeking to sponsor a beneficiary must file a petition with the United States Citizenship and Immigration Services ("USCIS"). See Pls.' Mot. for Temporary Restraining Order, ECF No. 6 [hereinafter Pls.' Mot.], at 4–5; see also AUSTIN T. FRAGOMEN, JR. ET AL., IMMIGRATION PROCEDURES HANDBOOK § 12:2 (Dec. 2019) [hereinafter HANDBOOK ]. Once the petition is approved, the beneficiary must then apply for permanent resident status, either by seeking an "adjustment of status" with USCIS (if the beneficiary is located in the United States) or, as relevant here, by applying for an immigration visa at a State Department consulate (if she is located abroad). See Pls.' Mot. at 5; HANDBOOK § 12:1–2, 19:1–2, 20:1; see also 8 U.S.C. § 1201. With limited exceptions, all visa applicants "must attend a visa interview" as part of the application process. See HANDBOOK § 19:2; 8 U.S.C. § 1201 ; 22 C.F.R. § 42.62.

The diversity visa program, in turn, is an annual process by which individuals from countries with a proportionally small number of immigrants to the United States may apply for immigrant visas. 8 U.S.C. § 1153(c)(1). A diversity visa applicant "must first apply for and win the diversity visa ‘lottery.’ " Almaqrami v. Pompeo , 933 F.3d 774, 776 (D.C. Cir. 2019) (citing 8 U.S.C. § 1153(e) ;

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22 C.F.R. § 42.33(b) – (c) ). A lottery winner, or "selectee," must then apply for a "visa number"—"an administrative device used by the State Department to ensure it does not grant more than" the statutory cap of 50,000 diversity visas per year. Id. at 776–77 (citing 8 U.S.C. § 1202(b) ; 22 C.F.R. §§ 42.33(f) – (g), 42.61 – 67 )). A selectee may receive a visa number only in the fiscal year in which she applied for the lottery and was selected. Id. at 777 (citing 8 U.S.C. § 1153(e)(2) ; 22 C.F.R. § 42.33(f) ). Once she receives her visa number, the selectee may then schedule a consular interview, and "if [she] meets the criteria to obtain one, the State Department ‘shall’ issue [her] a diversity visa." Id. (quoting and citing 8 U.S.C. §§ 1153(c), (e)(1) ; id. § 1202(h) ; 22 C.F.R. §§ 40.6, 42.81(a) ). If the selectee does not receive a visa by the end of the fiscal year, however, she is out of luck: "Because the diversity visa program restarts each fiscal year, consular officers may not issue diversity visas after midnight on September 30 of the" fiscal year in which the visa applicant was selected. Id. (citing 8 U.S.C. §§ 1153(c)(1), 1154(a)(1)(I)(ii)(II) ; 31 U.S.C. § 1102 ; 22 C.F.R. § 42.33(a)(1), (d) ).

The Proclamation cites various justifications, rooted in economic harms caused by the COVID-19 pandemic, to justify temporarily suspending entry of new permanent residents. First among those reasons is to protect unemployed American workers against competition in the labor market from new permanent residents. See 85 Fed. Reg. at 23,441–42. The Proclamation states that "we must be mindful of the impact of foreign workers on the United States labor market, particularly in an environment of high domestic unemployment and depressed demand for labor," and highlights the need to protect in particular "workers at the margin between employment and unemployment, who are typically ‘last in’ during an economic expansion and ‘first out’ during an economic contraction." Id. at 23,441. The Proclamation also identifies an overburdened healthcare system as reason to halt inflow of new permanent residents: "[I]ntroducing additional permanent residents when our healthcare resources are limited puts strain on the finite limits of our healthcare system at a time when we need to prioritize Americans and the existing immigrant population." Id. at 23,442. Finally, the Proclamation cites the need to preserve State Department resources as a reason to put a pause on entry, "so that consular officers may continue to provide services to United States citizens abroad." Id. at 23,441. For these reasons, the President suspended entry for an initial 60-day period starting April 23, 2020, though the suspension "may be continued as necessary." Id. at 23,443 §§ 4–5.

B.

Plaintiffs are family-based visa sponsors ("Family-Based Visa Plaintiffs") and diversity visa selectees ("Diversity Visa Plaintiffs"). Lead Plaintiff Jessica Nguyen is a United States citizen who, in 2005, filed a family-based immigrant visa petition on behalf of her brother and his family. See First Am. Compl. Class Action for Declaratory & Injunctive Relief, ECF No. 5 [hereinafter Am. Compl.] ¶ 12; Defs.' Mem. of Law in Opp'n to Pls.' Mot., ECF No. 14 [hereinafter Defs.' Opp'n], Ex. A., Decl. of Chloe Dybdahl, ECF No. 14-1 [hereinafter Dybdahl Decl.], ¶ 5. The petition was approved in 2010, but her brother's visa application was refused after an interview at the Ho Chi Minh City consular office on October 21, 2019. See Am. Compl. ¶ 12; Dybdahl Decl. ¶ 5. The consular office requested additional documentation from

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Nguyen's relatives on April 23 or 24, 2020.¹ There is no indication in the current record that this information has been provided.

Plaintiffs Driss Houti, Jaafar Al-Dahwi, Md Zahiduz Zaman, Alberto Petrache, Abdulazeez Abdulazeez, and Chedi Juez Morales—each a United States citizen or a lawful permanent resident—also filed family-based immigrant visa petitions on behalf of family members. See Am. Compl. ¶¶ 13–18; Dybdahl Decl. ¶¶ 6–14. Their family members are all awaiting visa application interviews at consular offices abroad. Zaman's and Petrache's relatives have submitted all the necessary paperwork for their visa applications, but their interviews were cancelled in late March 2020 due to closures associated with the COVID-19 pandemic. See Dybdahl Decl. ¶¶ 10–12. Abdulazeez's and Morales's relatives have also submitted their required paperwork, but their interviews have not yet been scheduled. Id. ¶¶ 13–14. Houti recently inquired into changing the classification of his immigrant visa petition for his family members, but there is no indication in the record whether he has filed the required request with USCIS. See id. ¶¶ 6–8. Al-Dahwi's relative's visa application requires additional information, though it appears the consular office has not yet communicated what information is needed. See id. ¶ 9.

Plaintiffs Yuliia Maksymenko, Yevhen Kovalov, Andrei Lykov, Evgenia Lykova, and Milana Lykova are 2020 diversity visa selectees and their derivative beneficiaries. See Am. Compl. ¶¶ 19–20; Dybdahl Decl. ¶¶ 15–16. Their lottery numbers are current, and they have submitted the required paperwork for their visa applications. See Am. Compl. ¶¶ 19–20; Dybdahl Decl. ¶¶ 15–16. They are currently waiting on visa application interviews at consular offices abroad. Dybdahl Decl. ¶¶ 15–16.

The Family-Based Visa Plaintiffs allege that if the Proclamation is allowed to stand, Plaintiffs will be denied the opportunity to reunite with their family members. See Am. Compl. ¶¶ 12–18. The Diversity Visa Plaintiffs separately worry that, "[i]f they do not receive their visas by September 30, 2020, they ... will lose the benefit of having been selected in the Fiscal Year 2020 lottery and will have to try again." Id. ¶¶ 19–20; see also id. ¶¶ 117, 120.

C.

On April 27, 2020, Plaintiffs filed a class-action complaint against Defendants President Trump, the United States...