Shahi v. United States Dep't of State
| Decision Date | 18 November 2021 |
| Docket Number | 20 C 7590 |
| Parties | AKASH SHAHI, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, MICHAEL POMPEO, CHAD WOLF, and ROBERT REDFIELD, Defendants. |
| Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
Plaintiffs are one hundred eighty-eight disappointed diversity visa petitioners, as well as certain of their U.S. sponsors and prospective employers. Plaintiffs complain that defendants the United States Department of State and the Secretary of State, Secretary of Homeland Security, and Director of the Centers for Disease Control and Prevention, are responsible for certain actions and policies in 2020 that prevented the visa-seeking plaintiffs' petitions from being adjudicated. Claiming that defendants' policies violated the Immigration and Nationality Act, 8 U.S.C. § 1152(a)(1)(A), Rehabilitation Act, 29 U.S.C. § 794(a), Administrative Procedure Act, 5 U.S.C. § 706(2), and their due process rights, plaintiffs seek adjudication of the visa petitions, as well as compensatory and declaratory relief. Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), arguing that plaintiffs lack standing and fail to state a claim. For the following reasons, the Court agrees with defendants that plaintiffs lack standing. Therefore, defendants' motion to dismiss is granted.
This case concerns the diversity visa program, which establishes a hybrid lottery/application process for individuals “from countries underrepresented in the immigration process” to enter the United States as “lawful permanent residents who may live and work here indefinitely.” Almaqrami v. Pompeo, 933 F.3d 774, 776-77 (D.C. Cir. 2019). The Department of State is permitted by law to grant as many as 55, 000 diversity visas each fiscal year. See 8 U.S.C. §§ 1151(e); see 8 U.S.C. § 1153(c).
The first step in the diversity visa process is the lottery. Diversity visa hopefuls must submit a petition to the Department of State, and the Department assigns each petition in each of various regional areas a rank-order number at random. 22 C.F.R. 42.33(c). The Department then selects according to rank-order “a quantity of petitions for each region estimated to be sufficient to ensure, to the extent possible, usage of all immigrant visas authorized” by law for that fiscal year. Id. Petitions selected in this manner are considered to have been “approved.” Id.
Once the petition has been approved, the petitioner must submit an application and various supporting documents to obtain a reserved visa number. See 8 U.S.C. § 1202(b); 22 C.F.R. §§ 42.33(f)-(g), 42.61-67. After obtaining a visa number, the petitioner may schedule a consular interview, and if he or she meets the statutory criteria, the Department of State “shall” issue a diversity visa. 8 U.S.C. § 1153(c), (e)(1), 22 C.F.R §§ 40.6, 42.81(a).
The diversity visa program restarts at the beginning of each new fiscal year. Therefore, every year after midnight on September 30, any outstanding approved petitions are no longer considered approved, 22 C.F.R. 42.33(d), visa numbers are no longer allotted for any outstanding approved petitions, 22 C.F.R. 42.33(f), and consular officers may not issue diversity visas based on any outstanding petitions or applications. 8 U.S.C. §§ 1153(c)(1), 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(a)(1), (d); see 31 U.S.C. § 1102.
The visa-seeking plaintiffs all submitted petitions that were selected in the lottery and approved. However, their applications were subsequently derailed by certain policies adopted by defendants, ostensibly in response to the COVID-19 pandemic. Plaintiffs argue that the pandemic was a pretext, and these policies instead stemmed from the Trump administration's animus toward the diversity visa program.
On March 20, 2020, the Department of State issued its COVID-19 guidance. In accord with that guidance, the Department indefinitely suspended all routine visa processing, and United States consular posts worldwide were directed to cease scheduling visa appointments, except as necessary to provide emergency and “mission critical” visa services. These were defined as “the processing of certain non-immigrant visas, such as those for diplomats and government officials, temporary agricultural workers, medical professionals, air and sea crew, and applicants with medical emergencies.” (Compl. ¶ 726, ECF No. 3.) This guidance halted all diversity visa processing and interviews.
On April 20, 2020, President Trump issued Presidential Proclamation 10014. The Proclamation suspended the entry of all immigrants to the United States for sixty days, with certain exceptions, including an exception for any immigrant “whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.” (Id. ¶ 734.) On June 21, 2020, President Trump signed Presidential Proclamation 10052, which extended Proclamation 10014 and instructed the Secretaries of State, Labor, and Homeland Security to “establish standards to define categories of aliens covered by” the “national interest” exception. (Id. ¶ 743.)
In guidance offered since the issuance of these Proclamations, the Department of State continued the suspension of routine visa processing and directed consular posts to adjudicate visa applications only for applicants who met an exception to the Presidential Proclamations, including the national interest exception, and that fell into a mission critical category. However, according to plaintiffs, diversity visa applicants had already been defined out of those categories by the Department, particularly since their applications were not considered “mission critical, ” so there was no way for them to obtain adjudication of their applications. Further, under the Department's four-phase “Diplomacy Strong” framework for resumption of normal operations, the adjudication of diversity visas remained suspended until Phase 4-even though Phase 3 was characterized as the resumption of routine services. Thus, diversity visas remained the lowest priority and were only to be processed to “prevent complete stagnation.” (Id. ¶ 749.) Consulates around the world informed diversity visa applicants that they could not schedule any new interviews. (Id. ¶ 759.) Plaintiffs' visa applications were never adjudicated.
Plaintiffs filed this suit on December 19, 2020. They assert their claims in seven counts: Count I, for violating the anti-discrimination provision of the Immigration and Nationality Act, 8 U.S.C. § 1152(a)(1)(A); Count II, for violating the Rehabilitation Act by failing to provide reasonable accommodations and discriminating against plaintiffs, see 29 U.S.C. § 794(a); Count III, for violating the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), by failing to adjudicate their visa applications based on unlawful, discriminatory, arbitrary and capricious policies; Counts IV, V, and VI, for violating plaintiffs' due process rights under the Fifth Amendment; and Count VII, for equitable relief that prevents defendants from enforcing the September 30, 2020 fiscal-year-end deadline against plaintiffs. In their prayer for relief, plaintiffs request declaratory relief and an order either (a) requiring the Department of State to complete the adjudication of the visa-seeking plaintiffs' 2020 diversity visa applications, or, in the alternative, (b) requiring defendants to refund all fees plaintiffs have expended for the processing of their applications and to repay plaintiffs for the medical certifications they sought as part of their futile visa applications.
Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6).
“Rule 12(b)(1) is the means by which a defendant raises a defense that the court lacks subject-matter jurisdiction, ” such as a challenge to the plaintiff's standing. Bazile v. Fin. Sys. of Green Bay, Inc., 983 F.3d 274, 279 (7th Cir. 2020). Where the defendant makes a facial challenge to the sufficiency of the allegations of the complaint regarding subject matter jurisdiction, the court “accept[s] all well-pleaded factual allegations as true and draw[s] all reasonable inferences in favor of the plaintiff.” Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1007 (7th Cir. 2021) (citing Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015)). When the defendant contends that “‘there is in fact no subject matter jurisdiction, '” even if the pleadings are “formally sufficient, ” the court may “look beyond the pleadings and view any evidence submitted to determine if subject matter jurisdiction exists.” Silha, 807 F.3d at 173 (quoting Apex Digital, Inc., v. Sears, Roebuck, & Co., 572 F.3d 440, 444 (7th Cir. 2009)).
A motion under Federal Rule of Civil Procedure 12(b)(6) tests whether the complaint states a claim on which relief may be granted. Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P 8(a)(2). The short and plain statement under Rule 8(a)(2) must “give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). The complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Twombly, 550 U.S. at 555; that is, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v....
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