Preston v. Ky. Consular Ctr.

Decision Date22 August 2022
Docket NumberCivil Action 6:22-CV-015-CHB
PartiesJESSICA PRESTON, et al., Plaintiffs, v. KENTUCKY CONSULAR CENTER, et al., Defendants.
CourtU.S. District Court — Eastern District of Kentucky

JESSICA PRESTON, et al., Plaintiffs,


Civil Action No. 6:22-CV-015-CHB

United States District Court, E.D. Kentucky, Southern Division

August 22, 2022



This matter is before the Court on a Motion to Dismiss filed by Defendants Kentucky Consular Center, Antony Blinken, Secretary of the United States Department of Labor, and the United States, [R. 31]. Plaintiffs responded, [R. 49], and Defendants replied, [R. 60]. This matter is now ripe for review. For the reasons stated herein, the Court will grant Defendants' Motion.


Plaintiffs in these two consolidated cases[1] are winners of the 2022 diversity visa program. [R. 9, p. 11, ¶ 72; R. 23]. The Kentucky Consular Center (“KCC”) granted Plaintiffs permission to file electronic immigrant visa applications, using Form DS-260, for the opportunity to immigrate to the United States of America as permanent residents. [R. 9, pp. 9, 11, ¶¶ 54, 73]. Plaintiffs, as diversity visa selectees, claim that they have filed their DS-260 applications and submitted additional supporting documents to the KCC. Id. ¶¶ 56, 72-73. As a result, Plaintiffs assert they are “documentarily qualified as diversity immigrants” and are


waiting for the Department of State (“Department”) to schedule visa interviews to complete the visa process. [R. 49, p. 16]. Plaintiffs argue that despite being documentarily qualified, “Defendants refused or failed to schedule interviews of Plaintiffs in a reasonable manner in compliance with the law.” Id. In Preston, there are 23 Plaintiffs, each of which is a winner of the 2022 diversity program, waiting to be interviewed at the consulate in Sydney, Australia. Id. In Husu, there are 103 Plaintiffs, each of which is a winner of the 2022 diversity program, waiting to be interviewed at various consulates throughout the world. Id. at 17. Importantly, approximately 40 percent of the Plaintiffs in this consolidated matter have been dismissed because their visa applications have been adjudicated.[2] See [R. 25; R. 58; R. 67; R. 69; R. 76; R. 79].

Plaintiffs in both Preston and Husu filed their Complaint on February 1, 2022. [R. 1 (015); R. 1 (016)]. On February 18, 2021, Plaintiffs in both cases amended their Complaint (“Amended Complaint”) as a matter of right pursuant to Federal Rule of Civil Procedure 15(a)(1). [R. 9 (015), R. 11 (016)]. On March 8, 2022, the Parties filed a Joint Motion to Consolidate Cases. [R. 25 (016)]. This Court granted the Joint Motion to Consolidate four days later, finding that:

the two actions are based not merely on analogous factual circumstances, but follow from the same type of underlying events. See also MacLean v. Evans, Mechwart, Hambleton & Tilton, Inc., No. 2:09-CV-521, 2009 WL 2983072, at *1-2 (S.D. Ohio, Sept. 14, 2009) (finding it appropriate to consolidate multiple age discrimination claims where some of the evidence would overlap). The Plaintiffs in both actions contest the manner in which Defendants have implemented the 2022 Diversity Visa Program. [R. 1, pp. 76-86, ¶¶ 809-894]; 6:22-CV-015-CHB [R. 1]. Additionally, the Plaintiffs in each case are represented by the same counsel and seek relief against the same set of Defendants, who are also represented by the same counsel. See Brown v Dejoy, No. 3:19-CV-615-DJH-CHL, 2021 WL 6882225 (W.D Ky. June 11, 2021) (citing Basler v. Purcell Tire &amp Rubber Co., No. 4:10-CV-231-RWS, 2010 WL 1608858, at *1 (E.D. Mo. Apr. 20, 2010)).

[R. 27 (016), p. 2].

In their Amended Complaint, Plaintiffs presented four claims against Defendants: (1) violations of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1), for the unlawful or unreasonable withholding of interviews (Count One); (2) violations of the APA, 5 U.S.C. § 706(1), for the unreasonable delay of scheduling interviews (Count Two); (3) violations of the APA, 5 U.S.C. § 706(2)(A), based on Defendants' arbitrary, capricious, and unlawful interpretation that the Immigration and Nationality Act requires the government to prioritize other immigrant applicants ahead of diversity visa immigrant applicants (Count Three); and (4) violations of the APA, 5 U.S.C. § 706(2)(A), based on Defendants' arbitrary, capricious, and unlawful decision-making regarding scheduling of interviews that have not been made in good faith, failure to consider relevant factors, and failure to comply with the regulatory process that governs the allocation, interviews, and issuance of diversity visas (Count Four). [R. 9, pp. 31-44, ¶¶ 313-421]. Notably, in their Response, Plaintiffs somewhat pivot from their claims as written in the Amended Complaint, in particular for Counts Three and Four, and reorient their claims to attack the form, manner, and timeframe in which diversity applications are being processed. Plaintiffs summarize their claims in their Response as follows:

The first two causes of action relate to Defendants [sic] failure to act, or unlawfully withholding action, in scheduling interviews before the statutory deadline to ensure that Plaintiffs can avail themselves of the administrative process to obtain diversity visas before the end of the fiscal year. Relatedly, in their third cause of action, Plaintiffs claim Defendants have violated the APA, 5 U.S.C. § 706(2)(A), because they have acted contrary to law in deprioritizing diversity visa applicants vis-a-vis other applicants for interviews and failed to follow the INA and governing regulations for diversity visas. Plaintiffs specifically allege that, beyond deprioritizing diversity visa applicants, Defendants have unlawfully issued visas to those who were not eligible and scheduled interviews out of the regulatory-mandated order of consideration.
In their fourth cause of action, Plaintiffs have alleged that the Department of State's deprioritizing diversity visas violates the APA, 5 U.S.C. § 706(2)(A), because it represents an arbitrary and capricious action taken contrary to law.
Plaintiffs specifically alleged that Defendants misapplied the INA and failed to consider relevant factors, including the time-sensitive nature of diversity visas, by departing from the Department of State's historical treatment of diversity visa applicants. Those applicants have historically received approximately 9% of the immigrant visas issued worldwide in accordance with the Congressional allocation of visas and intent that all categories share the same priority. In departing from the statutory requirement and historical practice, Defendants' arbitrary and capricious actions have prejudiced Plaintiffs as the time-sensitive nature of the diversity visa process extinguishes eligibility - this is true whether the unlawful action takes place in the beginning, middle, end or throughout the entire fiscal year.

[R. 49, pp. 23-24 (internal citations omitted)].

On April 26, 2022, the Defendants filed a Motion to Dismiss, [R. 31]. Plaintiffs filed a Response in Opposition on May 11, 2022, [R. 49]. Defendants replied, [R. 60]. This matter is now ripe for review. Before discussing the merits of the case, the Court will first provide a basic background of the diversity visa program and the impacts on the program following the emergence of the COVID-19 pandemic.

A. The Diversity Visa Program

Generally, a foreign national wishing to enter the United States must first obtain a visa from the Department. A visa is “a travel document that allows its holder to travel to a port of entry and request permission to enter the United States, but it does not guarantee the right to enter the country.” Gomez v. Trump, 485 F.Supp.3d 145, 158 (D.D.C. 2020), amended in part, 486 F.Supp.3d 445 (D.D.C. 2020), and amended in part sub nom. Gomez v. Biden, No. 20-CV-01419 (APM), 2021 WL 1037866 (D.D.C. Feb. 19, 2021); see also 8 U.S.C. § 1201(h); Trump v. Hawaii, 138 S.Ct. 2392, 2414 (2018) (summarizing “the basic distinction between admissibility determinations and visa issuance that runs throughout the INA”). Congress created three types of immigrant visas: (1) family based; (2) employment based; and (3) diversity based. See 8 U.S.C. § 1153; [R. 9, p. 6, ¶ 37]. This case concerns diversity visas, a type of


immigrant visa available under the INA. The diversity-visa program makes as many as 55,000 visas available annually to citizens of countries with low rates of immigration to the United States. See 8 U.S.C. §§ 1151(e), 1153(c). For the 2022 Fiscal Year (“FY”), the Department selected 63,753 selectees, plus their derivative beneficiary spouses and children, totaling 118,513 prospective diversity visa applicants for the limited slots. [R. 31, p. 18; R. 31-1, p. 3, ¶ 4; R. 9, p. 10, ¶ 62].[3]

“The process by which the State Department awards diversity visas is competitive and complicated.” Almaqrami v. Pompeo, 443 U.S.App.D.C. 52, 933 F.3d 774, 776 (2019). Given the demand for diversity visas, the Department requires an applicant to apply and win the diversity visa “lottery.” 8 U.S.C. § 1153(e)(2). The chances of winning the lottery are slim.[4] A lottery winner or “selectee” is entitled to apply for an immigrant visa by following the Department's instructions for filing a Form DS-260 and supporting documents. See 22 C.F.R. § 42.33(b)-(c). A selectee is eligible to receive a visa number only during the fiscal year


in which he applied and was selected. See 8 U.S.C. § 1154(a)(1)(I)(ii)(II) (“Aliens who qualify, through random selection, for a visa under section 1153(c) [8 U.S.C. § 1153(c)] shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected.”).

Congress prescribed, “[e]very alien applying for an immigrant visa . . . shall make application thereof in such form and manner and at such place as shall be...

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