Tate v. Pompeo, Civil Action No. 20-3249 (BAH)

• Decision Date: 16 January 2021
• Docket Number: Civil Action No. 20-3249 (BAH)
• Parties: Charlotte Louise TATE, et al., Plaintiffs, v. Michael POMPEO, Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

513 F.Supp.3d 132

Charlotte Louise TATE, et al., Plaintiffs,

v.Michael POMPEO, Secretary of State, et al., Defendants.

Civil Action No. 20-3249 (BAH)

United States District Court, District of Columbia.

Signed January 16, 2021

Jeff Joseph, Joseph & Hall, P.C., Aurora, CO, Charles Herman Kuck, Kuck Immigration Partners LLC, Atlanta, GA, for Plaintiffs.

Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Plaintiffs in this case are eighteen applicants for nonimmigrant O-1 and O-3 visas, which would allow them to enter the United States to further their professional careers in areas where they possess "extraordinary ability," or as family members of such individuals. The COVID-19 pandemic has disrupted the visa application and interview process, creating challenges both for foreign nationals wishing to travel to the United States and for the diplomatic posts responsible for processing visa applications. Plaintiffs have been unable to obtain visas, in part because the State Department has interpreted broadly certain Presidential Proclamations that forbid entry of individuals who were in certain designated countries within fourteen days of their attempted entry into the United States, as prohibiting the Department from issuing visas to individuals residing in those designated countries.

Plaintiffs have brought this suit to challenge the State Department's visa policy as unlawful and to compel resumption the adjudication of their visas. To this end, they have moved for a preliminary injunction to enjoin the State Department's visa-issuance suspension as contrary to the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. , and to compel the State Department immediately to resume processing their visas on grounds of unreasonable delay.

The Court agrees with plaintiffs—and the decisions of two other Judges in this district—that the State Department has acted unlawfully in suspending O-visa processing based on the Presidential Proclamations, which pertain only to entry, but defendants prevail on the delay claim. Plaintiffs’ motion for a preliminary injunction is therefore granted in part and denied in part.

I. BACKGROUND

Provided below is an overview of the O-visa program through which plaintiffs seek to enter the country, and a description of the Presidential Proclamations and relevant State Department policies, followed by a summary of the procedural history of this action.

A. O Visa Program

The Immigration and Nationality Act ("INA") provides a nonimmigrant visa category for qualified individuals who "[have] extraordinary ability in the sciences, arts, education, business, or athletics ... and [who] seek[ ] to enter the United States to continue work in the area of extraordinary ability." 8 U.S.C. § 1101(a)(15)(O)(i) ; see also 8 C.F.R. § 214.2(o).¹ To obtain such an "O-1" visa, an individual outside the United States must (1) have an I-129 petition approved by the United States Citizenship & Immigration Services ("USCIS"), and then (2) apply for an O-1 visa at a United States embassy or consulate. 8 U.S.C. § 1184(c) ; 8 C.F.R. § 214.2(o)(1)(i). O-3 visas allow for the spouses and minor children of O-1 visa recipients to obtain visas themselves. 8 C.F.R. § 214.2(o)(1)(i).

B. Presidential Proclamations

In response to the COVID-19 pandemic, the President issued five Presidential Proclamations, each containing similar provisions suspending the entry of certain immigrants and nonimmigrants from specific countries experiencing significant COVID-19 outbreaks. See Proclamation No. 9984, 85 Fed. Reg. 6709 (Jan. 31, 2020) China); Proclamation No. 9992, 85 Fed. Reg. 12855 (Feb. 29, 2020) (Iran); Proclamation No. 9993, 85 Fed. Reg. 15045 (Mar. 11, 2020) (26 European countries in Schengen Area); Proclamation No. 9996, 85 Fed. Reg. 15341 (Mar. 14, 2020) (United Kingdom and Ireland); Proclamation No. 10041, 85 Fed. Reg. 31933 (May 24, 2020) (Brazil).

In each Proclamation, the President relied on 8 U.S.C. § 1182(f), which allows the President to suspend and limit "entry" of certain aliens "[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States." The President specifically suspended the "entry ... of all aliens who were physically present within [any of the 31 countries] ... during the 14-day period preceding their entry or attempted entry into the United States." E.g. , Proclamation No. 9984, 85 Fed. Reg. at 6710. Each Proclamation contains exceptions to the general prohibition on entry, including lawful permanent residents of the United States; aliens who are spouses, parents, or children of U.S. citizens; various categories of specified visa holders; and aliens whose entry is determined to be "in the national interest" by the Secretary of State. Id. at 6710–11 (Section 2). O-visa holders are not included in the exceptions and are therefore suspended from entry during the relevant 14-day period. The Secretary of State is charged with implementing each proclamation "as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish." Id. at 6711 (Section 3).

C. State Department, COVID-19, and Suspended Visa Processing

On March 20, 2020, the State Department directed all U.S. embassies and Consulates to "suspend all routine visa services due to the COVID-19 pandemic." Am. Compl., Ex. A-1 ("March 20 DOS Guidance") ¶ 1, ECF No. 7-1; see also Defs.’ Mem. in Opp'n to Pls.’ Mot for Preliminary Injunction ("Defs.’ Opp'n"), Ex. A, Decl. of Brianne Marwaha ("Marwaha Decl.") ¶ 2, ECF No. 11-1. For the next few months, foreign posts offered only "mission critical or emergency services," which included certain categories of nonimmigrant visas and a discretionary category for "mission critical purposes of travel as determined on a case-by-case basis by post management," but did not include O visas. Am. Compl., Ex. A-3 ("Apr. 28 DOS Guidance"), ECF No. 7-3; Marwaha Decl. ¶¶ 2–3. On July 8, 2020, the State Department notified diplomatic and consular posts of a phased resumption of routine visa services starting on July 15, 2020, and issued instructions for reopening through a program called "Diplomacy Strong." Am. Compl., Ex. A-3 ("July 8 DOS Guidance") ¶ 1, ECF No. 7-6. That guidance indicated that in countries affected by the Presidential Proclamations, "[v]isa processing remains restricted to emergency or mission critical only," and exceptions to the Presidential Proclamations may also be used as a guide for additional mission-critical or emergency travelers." Id. ¶ 10. Routine appointments to process O visas would not resume until conditions improved and a post moved on to "Phase Two" of the reopening plan. Id. ¶ 11. Since services resumed, the State Department represents that its capacity to process visas has "significantly decreased" due to the pandemic. Defs.’ Opp'n, Ex. B, Decl. of Brenda L. Grewe ("Grewe Decl.") ¶¶ 3–4, ECF No. 11-2. From July 15, 2020 through September 30, 2020, for example, only around 10 percent of the number of visa applications processed in previous years were adjudicated. Id. ¶ 3.

Since visa processing resumed, the State Department has determined that certain classes of visa applicants would either automatically qualify or possibly qualify for a national interest exception under the Presidential Proclamations such that they would be permitted to enter the United States. Pls.’ Mot. for Preliminary Injunction ("Pls.’ Mot") at 9, ECF No. 8; Defs.’ Opp'n at 6. On July 12, 2020, the State Department announced "that an alien subject to [Proclamations 9993 or 9996] traveling on a valid F-1 and M-1 nonimmigrant visa would automatically be considered for a national interest exception. Defs.’ Opp'n at 6 (citing Dep't of State, National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland (updated Oct. 1, 2020), http://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-from-certain-travelers-from-the-schengen-area-uk-and-ireland.html) (last visited Jan. 15, 2021). The Department further announced that "business travelers, investors, academics, J-1 students, journalists and treaty traders" subject to Proclamations 9993 or 9996 "who are seeking a visa may qualify for a national interest exception" and noted that the "Department of State also continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security." Id. (emphasis in original) (quoting Dep't of State, National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland (updated Oct. 1, 2020), http://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-from-certain-travelers-from-the-schengen-area-uk-and-ireland.html).

The State Department has refused, however, to issue O visas to individuals in Proclamation-designated countries who do not otherwise qualify for a national interest exception. The July 8, 2020 Guidance indicates that at "All Posts Impacted by a [Regional] Presidential Proclamation," "visa processing remains restricted to emergency or mission critical only." July 8 DOS Guidance ¶ 10. The State Department further indicated in a notice posted on its website that "[u]ntil complete resumption of routine visa services, applicants who appear to be subject to entry restrictions under ... regional-focused Presidential Proclamations related to COVID-19 ... might not be processed for a visa interview appointment unless the applicant also appears to be eligible for an exception under the applicable Proclamation(s)." Dep't of State, National Interest Exceptions to Presidential Proclamations (10014 & 10052) Suspending...