Sunny v. Biden, 21-cv-4662 (BMC)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtBrian M. Cogan U.S.D.J.
PartiesNIKHILA SUNNY, et al., Plaintiffs, v. JOSEPH R. BIDEN, JR., et al., Defendants. VAUGHN WASHINGTON GEORGE WILSON, et al., Plaintiffs, v. JOSEPH R. BIDEN, JR., et al., Defendants.
Docket Number21-cv-05379 (BMC),21-cv-4662 (BMC)
Decision Date12 November 2021

NIKHILA SUNNY, et al., Plaintiffs,
v.

JOSEPH R. BIDEN, JR., et al., Defendants.

VAUGHN WASHINGTON GEORGE WILSON, et al., Plaintiffs,
v.

JOSEPH R. BIDEN, JR., et al., Defendants.

Nos. 21-cv-4662 (BMC), 21-cv-05379 (BMC)

United States District Court, E.D. New York

November 12, 2021


MEMORANDUM DECISION AND ORDER

Brian M. Cogan U.S.D.J.

The two cases before this Court concern the State Department's discretion to allocate consular and embassy resources to address a substantial backlog in visa applications. This backlog is the result of the COVID-19 global pandemic, which caused the Department to suspend routine visa services on March 20, 2020, and start a phased resumption in July 2020.

Plaintiffs are lawful permanent residents (LPRs) and their spouses and minor children. The minor children and spouses of LPRs are eligible for "Family: Second Preference (A)" visas, commonly referred to as F2As. They seek to preliminarily enjoin part of the State Department's

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plan for a phased resumption of visa services because it designates F2As as a third-tier priority and instructs consulates and embassies to dedicate 75% of visa-related appointments to addressing backlogs in Immediate Relative visas, also known as IRs. Because plaintiffs are unable to show that they are likely to succeed on the merits, this Court denies plaintiffs' motion for a preliminary injunction.

BACKGROUND

I. The Immigration and Nationality Act

"Broadly speaking, a foreign national wishing to enter the United States must first obtain a visa from the State 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." Gomez v. Trump, 485 F.Supp.3d 145, 158 (D.D.C. 2020). Immigrant visas (TVs) are issued to foreign nationals intending to relocate permanently to the United States. See United States v. Idowu, 105 F.3d 728, 731 (D.C. Cir. 1997).

The Immigration and Nationality Act (INA) codifies four central tenants of U.S. policy on legal permanent immigration: family reunification; the admission of immigrants with needed skills; the protection of refugees and asylees; and the acceptance of a diverse set of immigrants by country of origin.[1] "Family reunification occurs primarily through family-sponsored immigration. U.S. labor market contribution occurs through employment-based immigration. Humanitarian assistance occurs primarily through the U.S. refugee and asylee programs. Origin-country diversity is addressed through the Diversity Immigrant Visa."[2]

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The INA, in 8 U.S.C. §§ 1151-1154, provides a rubric for the management of two broad categories of family visas: Immediate Relative (IR); and Family-Sponsored Preference.[3] IR visas are granted to aliens who are the spouses, unmarried minor children, or parents of adult U.S. citizens. Family-Sponsored Preference visas are subdivided into five categories: 1stPreference, the unmarried children of U.S. citizens; 2nd Preference (A), spouses and minor children of LPRs; 2nd Preference (B), the unmarried sons and daughters of LPRs; 3rd Preference, married sons and daughters of U.S. citizens; and 4th Preference, siblings of adult U.S. Citizens.[4]

The INA sets the overall limit on the number of IR and Family-Sponsored Preference immigrants at 480, 000.[5] But this is a "permeable cap" because there is no limit on the number of IR visas. See 8 U.S.C. § 1151(b). The various categories of Family-Sponsored Preference Immigrants, however, have statutory floors and ceilings based on the USA's overall limit. The ENA provides that the annual level of Family-Sponsored Preference immigrants may not fall below 226, 000. See id. at § 1151 (c)(1)(B)(ii). However, the number of Family-Sponsored Preference visas is capped at 480, 000. The number of Family-Sponsored Preference visas is determined by reducing the total cap (480, 000) by the number of IR visas issued, with the understanding that 226, 000 Family-Sponsored Preference visas must be issued. Thus, if the total number of IR visas falls below 254, 000 (480, 000 - 226, 000), the State Department can issue additional Family-Sponsored Preference visas equal to the difference between 254, 000 and the number of IR visas. See Id. at § 1151(c)(1)(A). Until 2020 and the COVID-19 pandemic, this

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did not occur. Between 1996 and 2016, the annual issuance of IR visas has always exceeded 254, 000.[6]

The INA provides further guidance for how the mandatory 226, 000 visas for Family-Sponsored Preference immigrants should be divided among the five preference categories. This carefully calibrated system is best shown through this table[7]:

Category Numerical Limit
Total Family-Sponsored Preference and IR 480,000
IR Visas: spouses and unmarried minor children of U.S. citizens and the parents of adult U.S. citizens Unlimited
Family-Sponsored Preference Visas: 226,000 (Plus unused IR visas, if fewer than 254,000 IR visas are issued)
1st Preference Unmarried sons and daughters of U.S. citizens 23,400 (plus unused visas from 4th preference visas)
2nd Preference A: Spouses and minor children of LPRs (F2A) B: Unmarried sons and daughters of LPRs 114,200 (plus unused 1st preference visas with 77% reserved for 2A preference)
3rd Preference Married sons and daughters of U.S. citizens 23,400 plus unused 1st or 2nd preference visas
4th Preference Siblings of adult U.S. citizens 65,000 plus unused 1st, 2nd, or 3rd preference visas

Because plaintiffs' concerns center around the prioritization and raw number of Second Preference Family-Sponsored Visas (F2As), it is worth observing from the table above that the INA sets the F2A visa floor at approximately 87, 900 - about 77% of 114, 200. See 8 U.S.C. § 1153(a)(2). From 2016 until 2020, the required floor for F2A visas was met. See Department of Homeland Security, Legal Immigration and Adjustment of Status Report Quarterly Data,

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available at https://www.dhs.gov/immigration-statistics/readingroom/special/LIASR (last visited Nov. 11, 2021).

II. The COVID-19 Backlog and The State Department's Response

Prior to the pandemic, in the calendar year of 2019, on average 60, 866 visa applicants were backlogged, pending the scheduling of an interview, each month. U.S. Department of State, National Visa Center Immigrant Visa Backlog Report (2021), available at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html. As of October 31, 2021, that backlog was documented as 490, 089. Id

This dramatic increase in the number of individuals who are documentarily complete and still awaiting an interview exists because of the pandemic. On March 20, 2020, the State Department suspended routine visa services at consular offices and embassies worldwide. For approximately four months, only "emergency and mission critical" visa services were permitted to proceed.

Starting on July 8, 2020, the State Department began a phased reopening of routine consular services. This reopening provided Consular Chiefs with the discretion to determine the volume of visa services their offices could resume given local conditions and restrictions, including local and national lockdowns; travel restrictions; host country quarantine regulations; and internal foreign post policies designed to contain the spread of COVID-19. These guidelines also emphasized that a consulate and embassy's policy decisions should prioritize "[t]he health and safety of consular teams, mission colleagues, and applicants for consular services." 20 STATE 110220, Expanded Guidance on Prioritization for the Phased Resumption of Routine Visa Services, at 1 (Nov. 12, 2020).

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During this period, the total number of family preference visas issued by embassies and consular offices dropped from approximately 191, 938 in 2019 to 90, 435 in 2020. Compare U.S. Department of State - Bureau of Consular Affairs, Report of the Visa Office (2019) (Table VI: Preference Visas Issued Fiscal Year 2019) with U.S. Department of State - Bureau of Consular Affairs, Report of the Visa Office (2020) (Table VI: Preference Visas Issued Fiscal Year 2020). These State Department reports also show that the number of F2A visas issued at foreign posts dropped from 63, 890 in 2019 to 26, 154 in 2020.

A similar decline occurred in IR visas. In 2019, the Department's consulates and embassies issued 186, 584 IR visas. U.S. Department of State - Bureau of Consular Affairs, Report of the Visa Office (2019) (Table XII: Immediate Relative Visas Issued Fiscal Year 2019). But in 2020, only 108, 292 were issued. U.S. Department of State - Bureau of Consular Affairs, Report of the Visa Office (2020) (Table XII: Immediate Relative Visas Issued Fiscal Year 2020).

The impact of the pandemic on consular issued visas is clearly demonstrated by the table below, created using data from the State Department's Bureau of Consular Affairs[8]:

2018-2019

IVs Issued

FY 2020 - 2021

IVs Issued

March 2018

46, 706

March 2020

24, 383

April 2018

46, 399

April 2020

4, 412

May 2018

45, 036

May 2020

697

June 2018

43, 756

June 2020

1, 521

July 2018

42, 405

July 2020

1, 567

August 2018

46, 511

August 2020

6, 100

September 2018

38, 788

September 2020

14, 894

October 2018

41, 692

October 2020

8, 687

November 2018

38, 653

November 2020

10, 138

December 2018

35, 750

December 2020

11, 233

January 2019

39, 557

January 2021

11, 880

February...

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