Ramirez v. Blinken
| Decision Date | 22 March 2022 |
| Docket Number | Case No. 21-cv-1099 (CRC) |
| Parties | Daniel RAMIREZ, et al., Plaintiffs, v. Antony BLINKEN, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Charles Herman Kuck, Kuck Immigration Partners LLC, Atlanta, GA, Jeffrey Dean Joseph, Berry Appleman & Leiden, Denver, CO, Lillian S. Axelrod, Siskind Susser PC, Memphis, TN, for Plaintiffs Daniel Ramirez, Robert Adams, Eddieson Adres, Deredale Agpawa, Walter Aguirre, Samantha Amog, Josiah Bahl, Clarance Baker, Javine Audrey Barrion, Tyler Bertz, Lovely Dawn Besario, Shane Betro, Timothy Bissinger, Edilberto Bollozos, Iii, Mae Anne Bonifacio, Reuel Bornick, Rodney Boudreaux, Marty Bounds, Mark Bryan, Jaymar Buensalida, Matthew Bullock, Kaelyn Tresha Cabaluna, Rosalie Caquilala, Romeo Casurao, Bruce Cawthon, David Cha, Jason Claus, Matthew Cles, Christopher Cline, James Davis, Anthony Alan Dennis, Kimani Desire, Zachary York Desroches, Ryan Dilegge, Sean Dominguez, Charles Dorsey, Scott Drinkall, Curtis Drury, Kenneth Edwards, William Edwards, Edmund Elizalde, Joselito Espiritu, Lyster Estoconing, Timothy Faulkner, Matthew Fernandes, Matthew Filenius.
John Moustakas, Joseph F. Carilli, Jr., U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
CHRISTOPHER R. COOPER, United States District Judge The plaintiffs in this case are U.S. citizens and their non-citizen fiancés with K-1 visa applications pending or soon to be pending at the U.S. Embassy in Manila, Philippines. They have sued the Department of State and its Secretary under the Administrative Procedure Act and the Mandamus Act, challenging the delay in adjudicating their applications. In their claims for relief, the plaintiffs object not only to how long the Department has taken to process their files, but also to how the Department and the Embassy have prioritized them.
The Department and the Secretary move to dismiss the complaint. The Court will do so in part. The plaintiffs have failed to state a claim with Count 2, which challenges as arbitrary and capricious the Department and Manila Embassy's alleged deprioritizing of K-1 visa applications. However, the Court concludes that many of these same allegations about the Manila Embassy can properly support the plaintiffs’ claims in Counts 1 and 3, which focus on whether their wait for a visa adjudication has been unreasonable. In particular, the plaintiffs have plausibly alleged that the Embassy has failed to follow the reasoned, four-tier triage scheme that the Department imposed on consular posts several months into the COVID-19 pandemic. Because such an allegation would support a claim that the delay the plaintiffs have experienced is unreasonable, the Court will deny the motion to dismiss as to Counts 1 and 3.
A K-1 visa allows non-citizen fiancés of U.S. citizens to travel to the United States to marry. See Visas for Fiancé(e)s of U.S. Citizens , U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/family/family-of-us-citizens/visas-for-fiancees-of-us-citizens (last visited Mar. 22, 2022) ("USCIS Visa Information").1 It is one of several types of K visas, which also cover non-citizen spouses and eligible children of fiancés and spouses. See 9 FAM 502.7-3(B)(a)–(b).
To obtain a K-1 visa, a U.S. citizen who is engaged to be married must first file a Petition for Alien Fiancé(e)—or Form I-129F—with U.S. Citizenship and Immigration Services ("USCIS"). See USCIS Visa Information, supra. If USCIS agrees that the fiancé is eligible, it will approve the petition and send it to the State Department's National Visa Center ("NVC") for further processing. Id. When it receives an approved petition, the NVC assigns a case number, forwards the petition to the U.S. embassy or consulate where the non-citizen fiancé lives, and sends the non-citizen fiancé information on how to apply for a K-1 visa. Nonimmigrant Visa for a Fianc(é)e (K-1) , U.S. Dep't of State Bureau of Consular Affs., https://travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/nonimmigrant-visa-for-a-fiance-k-1.html (last visited Mar. 22, 2022). The non-citizen fiancé must then submit a K-1 visa application to the appropriate embassy or consulate, pay a fee, and gather specified material for review by a consular officer at an interview. Id.
"The interview with the consular officer is the most significant part of the visa issuing process." 9 FAM 502.7-3(C)(2)(a)(1). An interview can be scheduled once the applicant reports that all required documents have been collected, and the necessary medical examination has been completed. 9 FAM 502.7-3(C)(4)(a). At the interview, a consular officer may grant or deny the K-1 visa. USCIS Visa Information, supra. If granted, the visa is valid for a single entry to the United States for up to six months. Id. After admission on the visa at a port of entry, a K-1 visa holder has 90 days to marry the U.S. citizen fiancé. Id. Upon marriage, the visa holder may apply for adjustment to lawful permanent residence status. Id.
The plaintiffs are U.S. citizens with an approved I-129F Petition for Alien Fiancé(e), along with their respective non-citizen fiancés. See Compl. ¶ 9. The complaint included 140 fiancé pairs. Id. Since this case was filed, however, several dozen plaintiffs have voluntarily dismissed their claims, either because they have received their visas or because they no longer wish to pursue their claims. See Mot. Voluntarily Dismiss at 1, ECF No. 9; Notice of Voluntary Dismissal at 2, ECF No. 11. The plaintiffs report that, as of March 1, 2022, a further fourteen plaintiffs have had their final visa applications adjudicated. See Pl.’s Status Report at 1–2, ECF No. 12 ("Pl.’s Mar. 2022 Update"). Each remaining non-citizen fiancé plaintiff either has an application for a K-1 visa pending with the U.S. Embassy in Manila, or is awaiting transfer of his or her case from the NVC to the Manila Embassy.2 Compl. ¶ 9. The filer of the oldest of the still-pending applications has been awaiting a final adjudication since February 2020. See Pl.’s Mar. 2022 Update at 5 ( "documentarily complete" date).
The COVID-19 pandemic has upended the State Department's processing of all visas, including K-1 visas. In March 2020, the Secretary of State directed all diplomatic and consular posts to suspend all routine visa services, and to provide only mission-critical and emergency visa services as necessary. See Compl. Ex. B ¶ 1 (Mar. 20, 2020 State Department Bulletin). The Department began a phased resumption of routine services in July 2020. Compl. Ex. D ¶ 1 (July 8, 2020 State Department Bulletin). But restrictions imposed by host governments on travel and capacity, safeguards to reduce the transmission of the coronavirus, and reduced staffing levels due to illness and quarantine all continue to impact consulates’ ability to fully resume visa services. See Compl. Ex. D ¶¶ 2–3; Vermillion Decl. ¶ 4.3
The Manila Embassy—where the plaintiffs’ applications are or will soon be pending—has experienced these pandemic-induced capacity restrictions. Since the beginning of the pandemic, the Embassy has had only limited ability to offer visa services, due at least in part to reduced staffing. Vermillion Decl. ¶¶ 9–10; see also Visa Update: Consular Operations (Visas) as of October 2021 , U.S. Embassy in the Philippines, https://ph.usembassy.gov/visa-update-consular-operations-visas-as-of-october-2021 (last visited Mar. 22, 2022). As of June 2021, when the government filed its motion to dismiss, the Manila Embassy was working at "approximately one-fourth its normal capacity." Vermillion Decl. ¶ 9. And even as it has resumed visa processing and regained capacity, the Embassy has had to contend with a significant backlog of cases: As of June 2021, 3,593 K-1 visa applications were pending at the Manila Embassy itself, and a further 3,912 K-1 visa cases pending at the NVC were ultimately destined for processing in Manila. Id. ¶ 11. The Embassy likewise had a large backlog of immigrant visa cases. Id.
To address these backlogs in Manila and elsewhere, the State Department "authorized" consular officials "to give K visa cases high priority" beginning in August 2020. See Important Notice for K Visa Applicants Affected by COVID-19 , U.S. Dep't of State Bureau of Consular Affs. (Aug. 31, 2020), https://travel.state.gov/content/travel/en/News/visas-news/important-notice-for-k-visa-applicants-affected-by-covid-19.html. Months later, the Department adopted a "tiered approach to triag[ing]" visa applications, including for K-1 fiancé visas. See Defs.’ Mem. in Supp. of Mot. Dismiss ("MTD") at 5–6, ECF No. 6-1; see also Immigrant Visa Prioritization , U.S. Dep't of State Bureau of Consular Affs., http://web.archive.org/web/20210909040734/https://travel.state.gov/content/travel/en/News/visas-news/immigrant-visa-prioritization.html (last visited Mar. 22, 2022). Implemented in November 2020 and publicly announced on April 30, 2021, the policy places fiancé visas in the second priority tier, alongside immediate-relative and returning-resident visas. MTD at 5–6. Only files with particularly pressing time concerns—immediate relative international adoptions, applicants who would soon age out, and certain Special Immigrant Visas for Afghan and Iraqi nationals—were given higher priority. Id. However, the Department also noted that "consular sections, where possible, [we]re scheduling some appointments within all four priority tiers every month." Id.
The plaintiffs filed suit on April 21, 2021, naming Secretary of State Antony Blinken and the State Department as defendants. Compl. ¶¶ 14–15. The complaint contains two sets of claims. First, the plaintiffs challenge the prioritization of K visa applications, by both the Department as a whole and the Manila...
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