P.K. v. Tillerson

• Decision Date: 29 September 2017
• Docket Number: Civil Action No. 17–cv–1533 (TSC)
• Citation: 302 F.Supp.3d 1
• Parties: P.K., et al., Plaintiffs, v. Rex W. TILLERSON, et al., Defendants.
• Court: U.S. District Court — District of Columbia

302 F.Supp.3d 1

P.K., et al., Plaintiffs,

v.Rex W. TILLERSON, et al., Defendants.

Civil Action No. 17–cv–1533 (TSC)

United States District Court, District of Columbia.

Signed September 29, 2017

Arthur B. Spitzer, Scott Michelman, American Civil Liberties Union of the District of Columbia, Matthew E. Price, Max J. Minzner, Jenner & Block LLP, Washington, DC, Cody H. Wofsy, Samer Elias Khalaf, San Francisco, CA, Esther H. Sung, Los Angeles, CA, Justin B. Cox, Atlanta, GA, for Plaintiffs.

Catherine Hancock Dorsey, Steven A. Platt, Joshua Samuel Press, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District JudgeThis case involves the State Department's application of President Trump's Executive Order No. 13,780 ("Executive Order") to individuals who have applied for diversity immigrant visas in the fiscal year 2017 ("FY 2017"). Plaintiffs—citizens of Yemen and Iran—allege that Rex W. Tillerson, in his official capacity as Secretary of State, and fifty State Department consular officials (collectively, "Defendants"), have unlawfully refused or failed to process Plaintiffs' diversity immigrant visa applications based on their citizenship in one of the countries subject to the Executive Order's entry ban. (See ECF No. 46 ("Am. Compl.")).¹ Before this court is Plaintiffs' Motion for Preliminary Injunction and Emergency Motion for Mandamus Relief. (ECF Nos. 2, 2–1 ("Mot.")). The court heard oral argument on August 21, 2017, and at Plaintiffs' request, held an emergency status conference on September 19, 2017. Upon consideration of the parties' filings, the oral arguments of counsel, and for the reasons stated herein, Plaintiffs' motion for a preliminary injunction and emergency mandamus relief is GRANTED in part and DENIED in part.

I. BACKGROUND

A. The Diversity Visa Program

Congress created the diversity visa program under the Immigration and Nationality Act ("INA") to allow for more immigration to the United States from countries with traditionally low rates of immigration. See 8 U.S.C. §§ 1153(c)(1)(B)(ii), 1153(c)(1)(E)(ii). The program permits the State Department to issue up to 50,000 visas to individuals from specified countries.² 8 U.S.C. § 1151(e). Millions of people enter the lottery every year. Those selected for the program are not guaranteed to receive a visa—only the opportunity to apply for one.

Those wishing to obtain a visa through the diversity visa program must enter the visa lottery by filing a petition. See 22 C.F.R. § 42.33(b)(3). The State Department randomly selects lottery applicants to become "selectees" of the program. Id. § 42.33(c). Selectees may then submit an application and complete an interview with State Department consular officers. Provided that an applicant is statutorily eligible, that there is a visa number available for the applicant, and that processing is complete by the end of the fiscal year, the statute directs the State Department to issue immigrant visas, allowing the applicant and their immediate family to live and work in the United States and become lawful permanent residents. See 8 U.S.C. § 1201(g) ; 22 C.F.R. §§ 40.6, 42.33(f). If an applicant is issued a visa by September 30, 2017 (the end of the fiscal year), he or she has six months within which to enter the United States. See 8 U.S.C. § 1201(c)(1).

B. The Executive Order and the Supreme Court Decision

President Trump issued the Executive Order on March 6, 2017. The Executive Order expired on September 24, 2017.³ The Executive Order imposed a 90–day suspension on entry into the United States for nationals of six countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen. Section 2(c) of the Executive Order provides:

(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.

Protecting the Nation from Foreign Terrorist Entry into the United States, Exec. Order No. 13780, 82 Fed. Reg. 13209, 13213 (2017). The Executive Order was challenged on constitutional and statutory grounds in several different courts, and by the end of March, two injunctions prohibited the enforcement of Section 2(c). Two U.S. Courts of Appeals—the Fourth Circuit and the Ninth Circuit—largely upheld both injunctions. See Int'lRefugee Assistance Project v. Trump , 857 F.3d 554 (4th Cir. 2017), cert. granted , ––– U.S. ––––, 137 S.Ct. 2080, 198 L.Ed.2d 643 (2017) ; Hawaii v. Trump , 859 F.3d 741 (9th Cir. 2017), cert. granted sub nom. Trump v. Int'l Refugee Assistance Project , ––– U.S. ––––, 137 S.Ct. 2080, 198 L.Ed.2d 643 (2017). The government filed a petition for certiorari in International Refugee Assistance Project (IRAP) , as well as applications to stay the preliminary injunctions entered by the lower courts.

On June 26, 2017, the U.S. Supreme Court granted the government's petition for certiorari, and granted, in part, the government's motions to stay the preliminary injunctions pending resolution of the merits.⁴ Trump , 137 S.Ct. at 2087. The Court granted a stay of the injunctions as applied to section 2(c) of the Executive Order "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." Id . The Court left the injunctions in place "with respect to respondents and those similarly situated"—that is, those who had relationships with people or entities in the United States "whose rights might be affected if those foreign nationals were excluded." Id . The Court reasoned that "[d]enying entry to [a foreign national with no connection to the United States at all] does not burden any American party by reason of that party's relationship with the foreign national." Id . at 2088. In addition, the court noted that "the Government's interest in enforcing § 2(c), and the Executive's authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States." Id .

C. The State Department's Implementation of the Executive Order

Two days after the Supreme Court's decision, the State Department issued guidance to its consular officers regarding the Executive Order's impact on visa issuance. With respect to diversity visas, the State Department advised consular officers to "first determine whether the applicant is eligible for the DV [ (diversity visa) ], without regard to the [Executive Order]." (ECF No. 2–2 ("State Department Cable") at 3). Next, if an applicant is "found otherwise eligible," the consular officer was instructed to determine "whether the applicant is exempt from the [Executive Order]'s suspension of entry provision" or "qualifies for a waiver." (Id .). Lastly, consular officers were advised that applicants who were not exempt from the Executive Order's suspension of entry provision and who did not qualify for a waiver should be refused a visa:

c.) DV applicants who are not exempt from the [Executive Order]'s suspension of entry provision and who do not qualify for a waiver should be refused [pursuant to] 221(g) [of the INA] and the consular officer should request an advisory opinion from VO/L/A following current guidance in 9 FAM 304.3–1.

(Id .).

D. Plaintiffs ⁵

Plaintiffs are four individuals—Hamed Sufyan Othman Almaqrami, Aliakbar Nowzari Golsefid, Farzad Abdollahi Zadeh, and Aiman Alsakkaf—and their immediate family members, who are from countries affected by section 2(c) of the Executive Order. (See Am. Compl. ¶¶ 12–19). Almaqrami and Alsakkaf are from Yemen, and Golsefid and Zadeh are from Iran. (Id. ¶¶ 12–13, 16, 19). Almaqrami, Golsefid, and Zadeh were selected as diversity lottery winners in May 2016. (Id. ¶¶12–13, 16, 36). Alsakkaf was selected as a diversity lottery winner in July 2016. (Id. ¶¶ 19, 36). Plaintiffs have submitted their visa applications and have completed their consular interviews. (See id. ¶¶ 37, 38, 40, 41). However, on various dates since the Supreme Court's June 26, 2017 decision and the State Department's June 28, 2017 cable, Plaintiffs have been notified by the State Department that they were ineligible for diversity visas unless they could demonstrate a bona fide relationship with the United States. (Id. ¶¶ 37, 39, 40, 41). Plaintiffs were unable to do so and therefore remained ineligible for a visa during the State Department's implementation of the Executive Order. (Id. ).

E. Plaintiffs' Requested Relief

Plaintiffs claim that (1) the State Department's policy of applying the Executive Order's ban to visa issuance is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and (2) in applying the policy, consular officers violated their clear, non-discretionary duty to issue diversity visas to applicants who are statutorily eligible. (Am. Compl. at 15–17). Accordingly, Plaintiffs ask this court to issue an order: (1) enjoining the State Department from implementing the policy set forth in its cable; and (2) requiring consular officers to process Plaintiffs' applications pursuant to the statute. (Mot. at 10).

On September 11, 2017, Defendants filed a status report indicating that the State Department is likely to...