Case: 1:17-cv-2005 As of: 03/08/2018 12:46 PM EST 1 of 8
CLOSED,JURY,STAYED,TYPE−E
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−02005−RCL

DOE 1 et al v. U.S. DEPARTMENT OF HOMELAND SECURITY et al Assigned to: Judge Royce C. Lamberth Cause: 05:0706 Judicial Review of Agency Actions
Plaintiff

Date Filed: 09/28/2017 Date Terminated: 02/15/2018 Jury Demand: Defendant Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

JANE DOE 1

represented by Jon−Michael Dougherty COVINGTON & BURLING LLP One City Center 850 Tenth Street NW Washington, DC 20001 202−662−5574 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kyle P. Haley COVINGTON & BURLING LLP One City Center 850 Tenth Street NW Washington, DC 20001 202−662−5702 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maha Khalil THE MODI LAW FIRM 1415 North Loop West Suite 612 Houston, TX 77008 832−422−7789 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mark Henry Lynch COVINGTON & BURLING LLP One City Center 850 Tenth Street N.W. Washington, DC 20001 (202) 662−5544 Fax: (202) 778−5544 Email: mlynch@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan A. Crawley COVINGTON & BURLING LL One City Center 850 Tenth Street NW Washington, DC 20001

Case: 1:17-cv-2005 As of: 03/08/2018 12:46 PM EST 2 of 8

202−662−5112 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca E. Smith COVINGTON & BURLING LLP One City Center 850 Tenth Street NW Washington, DC 20001 202−662−5007 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035 (202) 897−2622 Fax: (202) 508−1007 Email: sirine@muslimadvocates.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JANE DOE 2

represented by Jon−Michael Dougherty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kyle P. Haley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maha Khalil (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan A. Crawley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca E. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address)

Case: 1:17-cv-2005 As of: 03/08/2018 12:46 PM EST 3 of 8

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JOHN DOE 1

represented by Jon−Michael Dougherty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kyle P. Haley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maha Khalil (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan A. Crawley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca E. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JANE DOE 3

represented by Jon−Michael Dougherty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kyle P. Haley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maha Khalil (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mark Henry Lynch

Case: 1:17-cv-2005 As of: 03/08/2018 12:46 PM EST 4 of 8

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan A. Crawley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca E. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JANE DOE 4

represented by Jon−Michael Dougherty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kyle P. Haley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maha Khalil (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan A. Crawley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca E. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JOHN DOE 2

represented by

Case: 1:17-cv-2005 As of: 03/08/2018 12:46 PM EST 5 of 8

Jon−Michael Dougherty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kyle P. Haley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maha Khalil (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan A. Crawley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca E. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JOHN DOE 3

represented by Jon−Michael Dougherty (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kyle P. Haley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maha Khalil (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mark Henry Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-2005 As of: 03/08/2018 12:46 PM EST 6 of 8
Megan A. Crawley (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca E. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant U.S. DEPARTMENT OF HOMELAND SECURITY
Defendant UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
Defendant U.S. DEPARTMENT OF STATE
Defendant ELAINE DUKE In her official capacity as Acting Secretary of Homeland Security
Defendant JAMES MCCAMENT In his official capacity as Acting Director of United States Citizenship and Immigration Services Defendant JOSEPH LANGLOIS In his official capacity as District Director of United States Citizenship and Immigration Services

represented by Kenneth A. Adebonojo U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2562 Fax: (202) 252−2599 Email: kenneth.adebonojo@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-2005 As of: 03/08/2018 12:46 PM EST 7 of 8

Defendant
REX W. TILLERSON In his official capacity as Secretary of State
Defendant
JOHN DOES 1−5 In their official capacities as the Consular Officials responsible for issuing Immigration Visas in Lebanon

represented by Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth A. Adebonojo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/28/2017 09/28/2017 09/28/2017
09/28/2017 10/04/2017
10/04/2017
10/04/2017 10/04/2017

# Docket Text
1 Unopposed MOTION To Proceed Anonymously and for Leave to File Supporting Exhibit Under Seal by JOHN DOE, 2, JOHN DOE, 1, JOHN DOE, 3, JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4 (Attachments: # 1 Text of Proposed Order)(jf) (Entered: 10/03/2017)
2 ORDER granting 1 Unopposed MOTION To Proceed Anonymously and for Leave to File Supporting Exhibit Under Seal. Signed by Judge Randolph D. Moss on 09/28/2017. (See order for full details) (jf) (Entered: 10/03/2017)
3 COMPLAINT against JOHN DOES 1−5, ELAINE DUKE, JOSEPH LANGLOIS, JAMES MCCAMENT, REX W. TILLERSON, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF STATE, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES ( Filing fee $ 400, receipt number 4616087375) with Jury Demand filed by JOHN DOE, 2, JOHN DOE, 1, JOHN DOE, 3, JANE DOE 2, JANE DOE 1, JANE DOE 3, JANE DOE 4. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Civil Cover Sheet)(jf) (Entered: 10/03/2017)
4 SEALED DOCUMENT filed by JOHN DOE, 2, JOHN DOE, 1, JOHN DOE, 3, JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Complaint and Sealed Exhibits)(zjf) (Entered: 10/03/2017)
5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Megan Crowley, :Firm− Covington & Burling LLP, :Address− 850 10th Street NW, Washington DC, 20001. Phone No. − 202−662−6000. Fax No. − 202−662−6291 Filing fee $ 100, receipt number 0090−5145471. Fee Status: Fee Paid. by JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3 (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Lynch, Mark) (Entered: 10/04/2017)
6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jon−Michael Dougherty, :Firm− Covington & Burling LLP, :Address− 850 10th Street NW, Washington, DC 20001. Phone No. − 202−662−6000. Fax No. − 202−662−6291 Filing fee $ 100, receipt number 0090−5145493. Fee Status: Fee Paid. by JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3 (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Lynch, Mark) (Entered: 10/04/2017)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Kyle Haley, :Firm− Covington & Burling LLP, :Address− 850 10th Street NW, Washington, DC 20002. Phone No. − 202−662−6000. Fax No. − 202−662−6291 Filing fee $ 100, receipt number 0090−5145501. Fee Status: Fee Paid. by JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3 (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Lynch, Mark) (Entered: 10/04/2017)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Rebecca Smith, :Firm− Covington & Burling LLP, :Address− 850 10th Street NW, Washington, DC 20002.

Case: 1:17-cv-2005 As of: 03/08/2018 12:46 PM EST 8 of 8

10/05/2017 10/06/2017
10/19/2017 11/27/2017
12/20/2017
12/20/2017 12/20/2017 12/20/2017 12/20/2017 12/20/2017 02/15/2018

Phone No. − 202−662−6000. Fax No. − 202−662−6291 Filing fee $ 100, receipt number 0090−5145506. Fee Status: Fee Paid. by JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3 (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Lynch, Mark) (Entered: 10/04/2017)
9 NOTICE of Appearance by Sirine Shebaya on behalf of All Plaintiffs (Shebaya, Sirine) (Main Document 9 replaced on 10/6/2017) (znmw). (Entered: 10/05/2017)
10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Maha Khalil, :Firm− The Modi Law Firm, :Address− 1415 North Loop West, Suite 612, Houston, TX 77008. Phone No. − 832−422−7789. Filing fee $ 100, receipt number 0090−5149275. Fee Status: Fee Paid. by JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3 (Lynch, Mark) (Entered: 10/06/2017)
11 NOTICE of Appearance by Kenneth A. Adebonojo on behalf of All Defendants (Adebonojo, Kenneth) (Entered: 10/19/2017)
12 Joint MOTION to Stay by ELAINE DUKE, JOSEPH LANGLOIS, JAMES MCCAMENT, REX W. TILLERSON, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF STATE, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (Attachments: # 1 Text of Proposed Order)(Adebonojo, Kenneth) (Entered: 11/27/2017)
13 ORDER granting 12 Motion to Stay for 90 days from entry of this Order. The parties shall file periodic joint status reports during the pendency of the stay. The first status Report is due by 2/20/2018, with a subsequent status report to be filed 30 days thereafter. Signed by Judge Royce C. Lamberth on 12/20/17. (lsj) (Entered: 12/20/2017)
14 ORDER granting 8 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 12/20/17. (lsj) (Entered: 12/20/2017)
15 ORDER granting 7 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 12/20/17. (lsj) (Entered: 12/20/2017)
16 ORDER granting 6 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 12/20/17. (lsj) (Entered: 12/20/2017)
17 ORDER granting 5 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 12/20/17. (lsj) (Entered: 12/20/2017)
18 ORDER granting 10 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 12/20/17. (lsj) (Entered: 12/20/2017)
19 NOTICE of Voluntary Dismissal by All Plaintiffs (Lynch, Mark) (Entered: 02/15/2018)

 
 Case 1:17-cv-02005-RCL Document 1 Filed 09/28/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JANE DOE #1,
JANE DOE #2,
JOHN DOE #1,
JANE DOE #3,
JANE DOE #4,
JOHN DOE #2,
and
JOHN DOE #3,
Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY 3801 Nebraska Avenue NW, Washington, DC 20016
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES 20 Massachusetts Ave NW, Washington, DC 20008
U.S. DEPARTMENT OF STATE 2201 C Street NW, Washington, DC 20037
ELAINE DUKE, in her official capacity as Acting Secretary of Homeland Security 3801 Nebraska Avenue NW, Washington, DC 20016

Civil Action No.: __________

Case 1:17-cv-02005-RCL Document 1 Filed 09/28/17 Page 2 of 13
JAMES MCCAMENT, in his official capacity as Acting Director of United States Citizenship and Immigration Services 20 Massachusetts Ave NW, Washington, DC 20008
JOSEPH LANGLOIS, in his official capacity as District Director of United States Citizenship and Immigration Services, 9500 Rome Place Washington, DC 20521
REX W. TILLERSON, in his official capacity as Secretary of State 2201 C Street NW, Washington, DC 20037
and
JOHN DOES #1-5, in their official capacities as the consular officials responsible for issuing immigration visas in Lebanon,
Defendants.
PLAINTIFFS’ UNOPPOSED MOTION TO PROCEED ANONYMOUSLY AND TO FILE SUPPORTING EXHIBIT UNDER SEAL
Plaintiffs respectfully move for leave to proceed anonymously in this
litigation and to file under seal an exhibit in support of this motion and an
un-redacted copy of the complaint. The parties have conferred pursuant to
Local Rule 7m and Defendants consent to this motion, without prejudice to
their ability to file a motion to unseal. Accordingly, Plaintiffs respectfully
request that this Court permit them to proceed under pseudonyms in this
action and to file under seal an exhibit to this motion that matches the John
and Jane Doe names used in the publicly filed complaint to the Plaintiffs’
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actual names and alien numbers, as well as a copy of the complaint that contains Plaintiffs’ actual names.
INTRODUCTION This action, brought under the Mandamus Act, 28 U.S.C. § 1361, the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and the Immigration and Nationality Act (“INA”), 8 U.S.C. § 11001 et seq., and its implementing regulations, challenges Defendants’ unlawful application of Executive Order 13780 and their corresponding delay in issuing Plaintiffs’ immigration visas, which were approved nearly six months ago. Because Plaintiffs would be at risk of great harm if their identities were revealed, they respectfully request leave to proceed anonymously in this litigation. In addition, Plaintiffs request leave to file under seal Exhibit A, which includes Plaintiffs’ true names and alien numbers, matched with the pseudonyms they seek to use in this lawsuit, as well as a copy of the complaint that includes Plaintiffs’ true names. Plaintiffs do not seek to remain anonymous with respect to Defendants. Plaintiffs’ motion is supported by several independent grounds. As an initial matter, the record in this case will reveal sensitive, private, and personal details concerning Plaintiffs’ immigration status, nationalities, and religious faith. The record will also reveal that six of the seven Plaintiffs are attempting to leave Syria. This fact alone counsels in favor of granting Plaintiffs’ motion to proceed anonymously. Moreover, Plaintiffs reasonably fear for their own safety and well-being—as well as the safety and well-being
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of their family members, both here and abroad—if details about their immigration status, nationalities, religious faith, and participation in this lawsuit become public. Finally, John Doe #3 is a minor and the privacy protections afforded to him under the Federal Rules of Civil Procedure would be eviscerated unless both he and his family members are permitted to proceed anonymously in this litigation.
In contrast to Plaintiffs’ strong interest in confidentiality, the countervailing interests in disclosure of Plaintiffs’ identities are minimal or nonexistent. The public’s interest, if any, in knowing Plaintiffs’ identities is negligible and its interest in open judicial proceedings will only be minimally affected if Plaintiffs are permitted to proceed anonymously. Moreover, granting Plaintiffs’ request to proceed under pseudonyms will serve the public interest by allowing this case to go forward. Finally, Defendants will not be prejudiced if Plaintiffs are permitted to proceed anonymously, particularly because Plaintiffs do not seek to withhold their identities from Defendants.
Under these circumstances, there is simply no need for Plaintiffs’ identities to be publicly disclosed. Accordingly, their motion should be granted.
LEGAL STANDARD When a party seeks to litigate under a pseudonym, the court must ensure that “special circumstances” exist such that the party’s “need for anonymity outweighs prejudice to the opposing party and the public’s interest
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in knowing [Doe’s] identity.” John Doe Co. No. 1 v. CFPB, 195 F. Supp. 3d 9, 23 (D.D.C. 2016) (citation omitted). When performing such a balancing test, the court considers the following nonexclusive factors:
(1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; (3) the ages of the persons whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously. CFPB, 195 F. Supp. 3d at 23 (citation omitted). “No single factor is necessarily determinative.” Doe v. Teti, No. 1:15-MC-01380, 2015 WL 6689862, at *2 (D.D.C. Oct. 19, 2015). Instead, the court “should carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff’s identity should yield” to the plaintiff’s request for anonymity. Id. (quotation marks omitted). The burden on the party seeking to proceed under a pseudonym is not a heavy one: it need only make a “colorable argument in support of the request” that is “not frivolous.” Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005).
ARGUMENT As detailed below, Plaintiffs would be at risk of great harm if their identities were publicly revealed. In contrast, permitting them to proceed anonymously would neither materially harm the public interest in open court
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proceedings nor risk unfair prejudice to Defendants. Accordingly, Plaintiffs’ motion to proceed anonymously should be granted. I. Plaintiffs Have a Compelling Need to Retain Their Anonymity
Plaintiffs have a strong interest in proceeding anonymously in this litigation and are not simply attempting to avoid the normal “annoyance and criticism that comes with litigation.” CFPB, 195 F. Supp. 3d at 16.
As an initial matter, Plaintiffs’ immigration status constitutes highly sensitive information that is routinely protected from public disclosure in cases, like this one, where requiring Plaintiffs to disclose it could dissuade a reasonable person in their position from seeking to vindicate their legal rights. See, e.g., Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 818255, at *2 (D. Md. Mar. 1, 2017) (“IRAP”) (explaining that a plaintiffs’ religious faith and immigration status “have been deemed to be sufficiently sensitive and personal in nature to support plaintiffs’ use of pseudonyms under appropriate circumstances” and collecting cases); see also, e.g., Keller v. City of Fremont, No. 10-cv-0270-LSC-FG3, 2011 WL 41902, at *2 (D. Neb. Jan. 5, 2011) (“[F]ederal courts have recognized that inquiries into immigration status can have an in terrorem effect, limiting the willingness of plaintiffs to pursue their rights out of fears of the consequences of an exposure of their position”); Does I thru XXII v. Advanced Textile Corp., 214 F.3d 1058, 1169 (9th Cir. 2000) (crediting plaintiffs’ “highly vulnerable [immigration] status”
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as one of several factors weighing in favor of allowing plaintiffs to proceed anonymously).
Moreover, Plaintiffs should be allowed to proceed pseudonymously because they reasonably fear that disclosure of their identities will lead to retaliation or harassment from violent actors in Syria. Indeed, the U.S. State Department recently reported that “persons who unsuccessfully sought asylum in other countries . . . [have been prosecuted] upon their return to the country.” U.S. State Dep’t, Country Report on Human Rights Practices for 2013: Syria 28 (2013), available at http://www.state.gov/documents/ organization/220588.pdf. Although the Plaintiff Family is not seeking asylum, its desire to immigrate to the U.S. is sufficiently similar to present the risk of retaliation from violent actors in Syria. Indeed, the Secretary of State recently redesignated Syria for Temporary Protected Status (TPS) because the “ongoing armed conflict in Syria and other extraordinary and temporary conditions would pose a serious threat to the personal safety of Syrian nationals if they were required to return to their country.” Extension and Redesignation of Syria for Temporary Protected Status, 81 Fed. Reg. 147 (Aug. 1, 2016). The threat to the Plaintiff Family and their relatives in Syria if Plaintiffs’ identities are disclosed strongly counsels in favor of allowing them to proceed anonymously in this litigation. See Doe v. U.S. Dep’t of State, 2015 WL 9647660, at *3 (D.D.C. Nov. 3, 2015) (granting request to proceed under pseudonym where plaintiff faced credible fear of violence in country of origin);
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IRAP, 2017 WL 818255, at *2 (“Potential retaliatory physical or mental harm against individuals in another country can form the basis for permitting plaintiffs to use pseudonyms.”); see also Advanced Textile, 214 F.3d at 1063 (considering possible retaliation by the Chinese government against both Chinese national plaintiffs working in Saipan and their family members who reside in China as grounds to support the use of pseudonyms).
Furthermore, given the pervasive climate of anti-Muslim and anti-Syrian immigrant sentiment in the United States, Plaintiffs—including Jane Doe #1, who already resides in the United States—reasonably fear social stigma, harassment, and even violence if their identities, immigration status, nationalities, and religious faiths are publicly disclosed. This fear is well-founded, as anti-Muslim hate crimes in the United States rose 67% in 2015, and an additional 44% in 2016. See FBI Hate Crime Statistics (Nov. 2016), available at https://www.fbi.gov/news/stories/2015hate-crime-statistics-released; Council on American-Islamic Relations, Civil Rights Report 2017: The Empowerment of Hate (2017), available at http://www.islamophobia.org/15-reports/188-the-empowerment-of-hate.html. The Southern Poverty Law Center has reported that the number of anti-Muslim hate groups in the United States nearly tripled between 2015 and 2016, increasing from 34 to 101 in a single year. See SPLC, Hate Groups Increase for Second Consecutive Year as Trump Electrifies Radical Right (Feb. 15, 2017), available at https://www.splcenter.org/news/2017/02/15/
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hate-groups-increase-second-consecutive-year-trump-electrifies-radical-right. The Center further reported that “[a] shift in targets has also taken place recently with the Syrian refugee crisis, as anti-Muslim groups have increasingly directed their ire toward the American refugee program. Refugees are commonly depicted as potential terrorist infiltrators by these organizations. Small anti-refugee groups have popped up across the country and fought the relocation of refugees at the hyper-local level.” Id.
In light of the pervasive hostility toward Syrian immigrants in some parts of the United States, Plaintiffs reasonably fear that if they are publicly associated with this litigation and their identities, nationalities, immigration status, and religious faith are made public, they will be subject to further harassment, including physical, emotional, and monetary harm by individuals in the United States. Accordingly, they should be permitted to proceed anonymously. See Lozano v. City of Hazleton, 620 F.3d 170, 195 (3d Cir. 2010) (concluding that anonymity was warranted where “ethnic tensions had escalated” and plaintiffs “would face an ‘exponentially greater’ risk of harassment, and even physical danger, if their identities were revealed”) (citation omitted).
Finally, John Doe # 3 is a minor and, as required by Federal Rule of Civil Procedure 5.2(a), he would be identified in this litigation at most only by his initials. See Fed. R. Civ. P. 5.2(a). If his parents, siblings, and aunt are required to proceed under their own names, however, identifying John Doe #3
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would be straightforward. Thus, only by permitting all Plaintiffs to proceed anonymously can the Court protect John Doe # 3’s identity from disclosure. Indeed, this Court has recognized that Rule 5.2(a)’s protections “would be eviscerated unless the parent was also permitted to proceed using initials.” J.W. v. District of Columbia, 318 F.R.D. 196, 199 (D.D.C. 2016). Because the “privacy interests of parents and their children in proceeding anonymously are intractably intertwined,” id., the Court should grant Plaintiffs’ motion to proceed anonymously. See also P.M. v. Evans-Brant Central Sch. Dist., No. 08-168A, 2008 WL 4379490, at *3 (W.D.N.Y. Sept. 22, 2008) (“Since a parent must proceed on behalf of a minor child, the protection afforded to the minor would be eviscerated unless the parent was also permitted to proceed using initials.”). II. Any Interest in Disclosure of Plaintiffs’ Identities Is Minimal
In contrast to Plaintiffs’ strong interest in confidentiality, the countervailing interests in disclosure of their identities are minimal or nonexistent.
First, the public’s interest, if any, in knowing the identities of Plaintiffs is negligible. To be sure, the issues that Plaintiffs raise in this lawsuit are important ones and may well be a matter of concern to the general public. However, that is not true of the identities of Plaintiffs: “[P]arty anonymity does not obstruct the public’s view of the issues joined or the court’s
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performance in resolving them.” Advanced Textile, 214 F.3d at 1068-69 (quoting Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981)).
To the contrary, the public interest strongly supports allowing Plaintiffs to proceed pseudonymously, as the public has a strong interest in seeing the controversial and important issues raised by this case resolved on the merits. “[W]ithout the protection of anonymity,” Plaintiffs will “likely decline to participate in the lawsuit . . . and the public’s interest in testing the [legality]” of the actions of Defendants “could remain unexplored.” Lozano, 496 F. Supp. 2d at 512. Requiring disclosure of Plaintiffs’ names in this case would not only discourage them from bringing this action, it would allow Defendants to continue to engage in unlawful behavior without any repercussion. Accordingly, both Plaintiffs and the public at large have aligned interests in the maintenance of Plaintiffs’ anonymity in this litigation.
Nor would granting Plaintiffs’ motion create any risk of unfairness or prejudice to Defendants. As stated above, Plaintiffs do not seek to withhold their identities from Defendants, and there is no reason to believe a fact-finder would be influenced by the fact that Plaintiffs are proceeding anonymously. See, e.g., James v. Jacobson, 6 F.3d 233, 240-42 (4th Cir. 1993) (rejecting the notion that plaintiffs’ anonymity would limit the ability of defendant to impeach the credibility of plaintiffs or that it would create the assumption of liability in the defendant); see also Doe No. 1 v. Williams, 167 F. Supp. 2d 45, 46, n.1 (D.D.C. 2001) (granting plaintiffs leave to proceed by pseudonym on
11

Case 1:17-cv-02005-RCL Document 1 Filed 09/28/17 Page 12 of 13
condition that they disclose identity to defendants), rev’d on other grounds, 2003 WL 21466903 (D.C. Cir. June 19, 2003).
Moreover, courts “are more likely to permit plaintiffs to proceed under a pseudonym when they are pursuing a claim against the government rather than a private individual” because “although the mere filing of a lawsuit against a private party may cause the defendant reputational and economic harm, such that fairness requires the identification of the plaintiffs, the government is not vulnerable to similar reputational harm, particularly in a case involving a challenge to the constitutional, statutory, or regulatory validity of government activity.” IRAP, 2017 WL 818255, at *3 (collecting cases). See also J.W., 318 F.R.D. at 201 (“[A]nonymous litigation is more acceptable when the defendant is a governmental body because government defendants do not share the concerns about reputation that private individuals have . . .”) (internal citation omitted).
In short, Defendants face no unfair prejudice if Plaintiffs are allowed to proceed under pseudonyms, particularly at this early stage of the litigation.
CONCLUSION As detailed above, Plaintiffs would be at risk of great harm if their identities were revealed. Permitting them to proceed anonymously would neither materially harm the public’s interest in open court proceedings nor risk unfair prejudice to Defendants. Accordingly, Plaintiffs respectfully request that this Court permit them to proceed under pseudonyms in this
12

Case 1:17-cv-02005-RCL Document 1 Filed 09/28/17 Page 13 of 13

litigation and to file under seal an exhibit in support of this motion and an un-redacted copy of the complaint.

Respectfully submitted,

September 27, 2017

/s/ Mark H. Lynch

`

Mark H. Lynch (DC Bar No. 193110)

Megan Crowley∗ (NY Bar No. 4930376)†

Jon-Michael Dougherty∗ (DC Bar No. 1032660)

Kyle Haley∗ (DC Bar No. 1021926)

Rebecca Smith∗ (CA Bar No. 315840)†

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street NW

Washington, DC 20004-2401

(202) 662-6000 (Telephone)

(202) 662-6291 (Fax)

Johnathan Smith (DC Bar No. 1029373) Sirine Shebaya (DC Bar No. 1019748) MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Phone: 202.897.1894

Maha Khalil (TX Bar No. 24097935) THE MODI LAW FIRM 1415 North Loop West, Suite 612 Houston, TX 77008 Phone: 832.422.7789 Pro hac vice application forthcoming

Attorneys for Plaintiffs

∗ Pro hac vice pending. † DC Bar application pending.
13

 
 Case 1:17-cv-02005-RCL Document 2 Filed 09/28/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JANE DOE# 1 et al., Plaintiffs,
v. U.S. DEPARTMENT OF HOMELAND SECURITY et al.,
Defendants.

Case: 1:17-cv-02005 (JURY DEMAND)

Assigned To : Lamberth, Royce C.

Assign. Date : 9/28/2017

Description: Gen. Civil

(E-DECK)

(illtel OSEdj ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION To PROCEED ANONYMOUSLY AND TO FILE SUPPORTING EXHIBIT UNDER SEAL

The Court has reviewed Plaintiffs' motion for leave to proceed anonymously

in this litigation. Upon consideration of that motion, and good cause appearing, it

is hereby ORDERED that Plaintiffs' Unopposed Motion To Proceed Anonymously

And To File Supporting Exhibit Under Seal is GRANTED . ~ ~ \t.l
IcT.ISv'SOitOlR.D.ER-E-D:.t~C~ilafot('G_e~01~- ll'nf~ii)~_.t).ft2ol ~ ~ ~ +o

DATED:~ ;)ff, ?o/1-

!]

 
 Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JANE DOE #1,
JANE DOE #2,
JOHN DOE #1,
JANE DOE #3,
JANE DOE #4,
JOHN DOE #2,
and
JOHN DOE #3,
Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY 3801 Nebraska Avenue NW, Washington, DC 20016
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES 20 Massachusetts Ave NW, Washington, DC 20008
U.S. DEPARTMENT OF STATE 2201 C Street NW, Washington, DC 20037
ELAINE DUKE, in her official capacity as Acting Secretary of Homeland Security 3801 Nebraska Avenue NW, Washington, DC 20016

Civil Action No.: __________

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 2 of 34
JAMES MCCAMENT, in his official capacity as Acting Director of United States Citizenship and Immigration Services 20 Massachusetts Ave NW, Washington, DC 20008
JOSEPH LANGLOIS, in his official capacity as District Director of United States Citizenship and Immigration Services, 9500 Rome Place Washington, DC 20521
REX W. TILLERSON, in his official capacity as Secretary of State 2201 C Street NW, Washington, DC 20037
and
JOHN DOES #1-5, in their official capacities as the consular officials responsible for issuing immigration visas in Lebanon,
Defendants.
PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs-Petitioners (“Plaintiffs”), appearing individually under
pseudonyms, respectfully bring this Petition for Writ of Mandamus and Complaint
for Declaratory and Injunctive Relief to compel Defendants-Respondents
(“Defendants”) to issue and/or reissue Plaintiffs’ visas. In support thereof, Plaintiffs
allege as follows:
NATURE OF ACTION
1. Plaintiff Jane Doe #1 is a United States citizen who has lived in the
United States since October 1996 and has been a citizen since February 2001. On 2

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 3 of 34
January 5, 2004, she filed an I-130 Petition for Alien Relative on behalf of her sister, her sister’s husband, and their four children—all of whom are residents of Syria (collectively, the “Plaintiff Family”). The petition was approved on May 7, 2010.
2. In the thirteen years since they filed the petition, Plaintiffs have diligently pursued the lengthy and rigorous immigrant visa application process, which entails, inter alia, filing immigrant visa applications, paying several thousand dollars in filing and processing fees and related costs, and undergoing security screenings, visa interviews, and medical examinations.
3. In January 2017, the Plaintiff Family was interviewed by the Consular Section of the U.S. Embassy in Beirut, Lebanon (“Consulate”). On or about February 16, 2017, the Consulate informed the family that their application had been approved and instructed the family to bring their passports to the Embassy in Lebanon so that the passports could be stamped with the visas. The Embassy also provided Plaintiffs these instructions by email. In reliance on Defendants’ representations, Plaintiff John Doe # 1, the sole breadwinner for the family, resigned from his employment; the four children withdrew from school; and the family traveled from Syria to Lebanon to deliver their passports to the Embassy. On February 27th, the Consulate informed the family that their visas could be picked up from the Embassy on March 10, 2017.
4. In the interim, on March 6, President Trump issued Executive Order 13780, which suspended visa issuance for nationals of six Muslim-majority
3

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 4 of 34
countries, including Syria. By its own terms, Executive Order 13780 was not scheduled to take effect until March 16, 2017. In an abrupt change of course after the issuance of the Executive Order, however, on March 9, just one day before the family had been scheduled to pick up their visas, a consular official called to inform them that they would not be able to pick up their visas the following day. The family asked for an explanation but was not provided with one.
5. On March 15th, the day before Executive Order 13780 was supposed to go into effect, it was enjoined. Due to several ongoing legal challenges, the Order did not actually go into effect until June 26, 2017, when the Supreme Court partially lifted the injunction—permitting limited application of the Order to individuals who, unlike the Plaintiff Family, have no “bona fide” ties to the United States. Thus, the Executive Order was not applicable to the Plaintiff Family on March 9, and it has not become applicable to them since that time.
6. On information and belief, however, Defendants wrongfully applied the Executive Order to Plaintiffs and to other similarly situated persons around the world, delaying the processing of their visas in order to allow the Executive Order to fully take effect. Because of Defendants’ unlawful application of the Executive Order, Plaintiffs’ visa processing was suspended, and they are now trapped in a state of administrative limbo. Despite having completed all the administrative steps to receive their visas and having been told that their visas were approved and would be ready for pickup nearly six months ago, Plaintiffs still have not received their visas.
4

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 5 of 34
7. Since that time, the Plaintiff Family eventually found themselves with no choice but to return to Syria, having overstayed their authorized period of stay in Lebanon while waiting for Defendants to issue their U.S. visas. More pressing, the eldest son, John Doe #2, recently turned 18 and therefore is subject to mandatory service in the Syrian military unless he obtains an exemption from the Syrian government to pursue his education. To shield him from conscription, the Plaintiff Family returned to Syria to enroll him in university and apply for this waiver, which may only protect him in the short term. While awaiting resolution of their U.S. visas, the family remains in Syria, exposed to potential violence and instability from the ongoing civil war. The children are trying to catch up after missing what amounts to an entire school year, and John Doe # 1 has been unable to find new employment.
8. Defendants’ refusal to issue the approved visas deprives Plaintiffs of their rights under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 11001 et seq., and its implementing regulations, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 555, 706, as well as agency policy. This inaction also has separated Plaintiffs from their loved ones and exposed them to serious, prolonged, and imminent threats to their lives and well-being. It has cost the family thousands of dollars and caused significant disruptions in their educations and careers. The financial, physical, and emotional stresses that Plaintiffs have suffered as a result of Defendants’ failure to act have exacted a significant toll on the family and will not be relieved until the visas are issued, as required by law.
5

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 6 of 34
9. This case does not challenge the President’s power to issue Executive Order 13780, nor the scope of that Order. Instead, this case challenges Defendants’ unlawful refusal to issue and/or reissue visas that had already been approved well in advance of Executive Order 13780’s effective date. As explained below, by February 16, 2017, Defendants had approved Plaintiffs’ application and informed the family of the decision to issue their visas. Plaintiffs relied on Defendants’ representation, upending their lives with the expectation that the visas would be issued. All that remains is for Defendants to implement this decision through the ministerial act of affixing the visas to Plaintiffs’ passports. Accordingly, Plaintiffs are entitled to a writ of mandamus compelling Defendants to issue the visas.
10. A court may grant mandamus relief if (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff. Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016); see also Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the United States v. Kerry, 168 F. Supp. 3d 268 (D.D.C. 2016).
11. Here, Plaintiffs clearly meet all three of these criteria. Plaintiffs have fully complied with all of the statutory and regulatory requirements in the visa application process and were told that their applications had been approved. Accordingly, they have a clear right to the issuance of the visas. Defendants have unreasonably failed to issue the approved visas, in dereliction of their nondiscretionary duties, and despite providing Plaintiffs assurances to the contrary
6

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 7 of 34
shortly before they abruptly and arbitrarily changed course. Plaintiffs have no alternative means to obtain relief.
12. Based on the foregoing, Plaintiffs are also entitled to relief under the APA, which authorizes courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). “Agency action” includes, in relevant part, “an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Defendants’ failure to issue the visas constitutes agency action unlawfully withheld or unreasonably delayed, entitling Plaintiffs to relief.
13. Accordingly, Plaintiffs are entitled to a writ of mandamus and/or order (1) declaring that Defendants’ continued failure to issue Plaintiffs’ visas violates the APA, the INA, agency regulations, and agency policy; (2) declaring that Defendants are not—and never have been—subject to Executive Orders 13780 and 13769, and that any application of these orders to Plaintiffs is unlawful; and (3) directing Defendants to issue Plaintiffs’ immigration visas forthwith.
THE PARTIES 14. Plaintiff Jane Doe # 1 is a U.S. citizen who resides in Houston, Texas. She was born in Syria in 1980, moved to the United States in 1996, and became a U.S. citizen in 2001. 15. Plaintiff Jane Doe # 2 is the sister of Jane Doe # 1. She was born in Lebanon in 1974 and is a Palestinian national who resides in Syria. As a Syrian-
7

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 8 of 34
Palestinian, her official identification and travel documents are issued by the Syrian government.
16. Plaintiff John Doe # 1 is the husband of Jane Doe # 2. He was born in Syria in 1965 and is a Palestinian national who resides in Syria. As a SyrianPalestinian, his official identification and travel documents are issued by the Syrian government.
17. Plaintiff Jane Doe # 3 is the daughter of Jane Doe # 2 and John Doe # 1. She was born in Syria in 1995 and is a Palestinian national who resides in Syria. As a Syrian-Palestinian, her official identification travel documents are issued by the Syrian government.
18. Plaintiff Jane Doe # 4 is the daughter of Jane Doe # 2 and John Doe # 1. She was born in Syria in 1996 and is a Palestinian national who resides in Syria. As a Syrian-Palestinian, her official identification and travel documents are issued by the Syrian government.
19. Plaintiff John Doe # 2 is the son of Jane Doe # 2 and John Doe # 1. He was born in Syria in 1999 and is a Palestinian national who resides in Syria. As a Syrian-Palestinian, his official identification and travel documents are issued by the Syrian government.
20. Plaintiff John Doe # 3 is the son of Jane Doe # 2 and John Doe # 1. He was born in Syria in 2009 and is a Palestinian national who resides in Syria. As a Syrian-Palestinian, his official identification and travel documents are issued by the Syrian government.
8

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 9 of 34
21. Defendant Department of Homeland Security (“DHS”) is an agency of the United States Government. DHS is responsible for implementing and enforcing the INA.
22. Defendant Elaine Duke is the Acting Secretary of DHS and is the senior official of DHS. She is sued in her official capacity.
23. Defendant United States Citizenship and Immigration Services (“USCIS”) is a component of DHS responsible for, inter alia, adjudicating immigrant visa petitions filed on behalf of foreign nationals seeking to immigrate to the United States. USCIS plays an integral role in the immigrant visa application and adjudication process.
24. Defendant James McCament is the Acting Director of USCIS and is the senior official of USCIS. He is sued in his official capacity.
25. Defendant Joseph Langlois is the USCIS District Director for the Europe, Middle East, and Africa District. He is sued in his official capacity.
26. Defendant Department of State is an agency of the United States Government. State has an integral role in the immigrant visa application and adjudication process.
27. Defendant Rex W. Tillerson is the Secretary of State and is the senior official of State. He is sued in his official capacity.
28. Defendants John Does #1-5 are the consular officials employed by the U.S. Department of State who are responsible for issuing U.S. immigration visas in
9

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 10 of 34
Lebanon. Their identities are not publicly disclosed by the U.S. Department of State. They are sued in their official capacities.
JURISDICTION AND VENUE 29. This case arises under the United States Constitution; the INA, 8 U.S.C. § 1101 et seq.; and the APA, 5 U.S.C. § 701 et seq. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1361, and 2201–2202. 30. There exists an actual and justiciable controversy between Plaintiffs and Defendants requiring resolution by this Court. Plaintiffs have no adequate remedy at law. 31. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e).
BACKGROUND I. Statutory and Regulatory Framework
32. Immigration based on a foreign national’s familial relationship with a United States citizen or lawful permanent resident (LPR) is the primary method by which foreign nationals may seek to immigrate to the United States.
33. Under the INA, family-sponsored visas may be issued to, inter alia, the siblings of U.S. citizens. 8 U.S.C. § 1153(a)(1)-(4). The spouses and children of the sibling applicant are permitted to apply for immigrant visas as derivative beneficiaries. Id. § 1153(d).
34. The family-sponsored immigration process is initiated when a citizen or LPR sponsors a qualifying family member by filing a Petition for Alien Relative (Form I-130) with USCIS. 8 U.S.C. § 1154. USCIS then verifies that the petitioner
10

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 11 of 34
is a United States citizen or LPR and that a qualifying familial relationship exists between the petitioner and the beneficiary. 8 C.F.R. § 204.1(a)(1).
35. Filing a Form I-130 establishes a “priority date,” which is used to determine when the beneficiary of a petition—along with any derivative beneficiaries—is permitted to move forward with the visa application process. 8 C.F.R. § 204.1(c). Because the number of individuals seeking to immigrate under the family-sponsored preference system far outpaces the number of visas available in any given year, visas are issued chronologically according to petition priority dates.
36. If an I-130 petition is approved, USCIS forwards the approved petition to the Department of State, National Visa Center (NVC). Once the priority date becomes “current”—indicating that a visa is available based on the beneficiary’s preference status—the beneficiary is able to begin the process of formally applying for a visa by submitting a DS-260 Online Immigrant Visa and Alien Registration Application with the NVC.
37. After completing the DS-260 application, filing supporting documentation, completing a medical examination, and paying applicable fees, a beneficiary is interviewed by a consular officer at the beneficiary’s applicable U.S. embassy or consulate.
38. During the interview, the applicant executes Form DS-260 by swearing to or affirming its contents and signing it before a consular officer. See 22 C.F.R. § 42.67. The Department of State website instructs that “[a]t the end of your
11

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 12 of 34
immigrant visa interview at the U.S. Embassy or Consulate, the consular officer will inform you whether your visa application is approved or denied.” The Immigrant Visa Process, U.S. Department of State, Bureau of Consular Affairs, available at https://travel.state.gov/content/visas/en/immigrate/immigrantprocess/interview/after.html (last visited Sept. 26, 2017).
39. Once “a visa application has been properly completed and executed before a consular officer in accordance with the provisions of the INA and its implementing regulations, the consular officer must either issue or refuse the visa under INA 212(a) or INA 221(g) or other applicable law.” 22 C.F.R. § 42.81(a). The Department of State Foreign Affairs Manual (FAM) further explains that “[o]nce an application has been executed, the consular officer must either issue the visa or refuse it. A consular officer cannot temporarily refuse, suspend, or hold the visa for future action. If the consular officer refuses the visa, he or she must inform the applicant of the provisions of law on which the refusal is based, and of any statutory provision under which administrative relief is available.” 9 FAM § 504.1-3(f).
40. If the consular officer determines that a visa should be issued, the officer is required to arrange the appropriate visa documentation and sign and seal the immigrant visa, consistent with the requirements set forth in 22 C.F.R. § 42.73. “The immigrant visa shall then be issued by delivery to the immigrant or the immigrant’s authorized agent or representative.” Id. § 42.73(d).
41. Conversely, if the consular officer determines that the visa should be refused, the officer must have a basis for refusal that is “specifically set out in the
12

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 13 of 34
law or implementing regulations.” 22 C.F.R. § 40.6. The officer also must comply with the refusal procedure outlined in 22 C.F.R. § 42.81(b), which mandates, in relevant part, that the “consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provision of law or implementing regulation under which administrative relief is available.”1
42. If a consular officer determines that additional information is required from an applicant or that a Security Advisory Opinion—known as “administrative processing”—is necessary to determine an applicant’s eligibility, the officer must deny the application under INA § 221(g), pending future consideration once additional information is received or administrative processing is concluded. See 9 FAM 504.11-3(B)(2)(a) (“If, after interviewing the applicant, you decide that an advisory opinion is necessary, you must first refuse the alien under INA 221(g).”) The FAM categorizes Section 221(g) refusals issued for the purpose of conducting administrative processing as “Quasi-Refusal Cases.” 9 FAM 504.11-3(B).
43. When a “quasi-refusal” is issued pursuant to INA § 221(g), the applicant must be notified both orally and through a refusal letter, which is

1

State Department guidelines provide additional details regarding the manner

in which visa applications should be refused, including a requirement that officers

notify applicants, orally and in writing, who are refused a visa under INA Sections

212(a) or 221(g). See 9 FAM § 504.11-3(A)(1) (setting forth the required contents of

212(a) and 221(g) refusal letters).

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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 14 of 34

required to “[e]xplicitly state the provision of the law under which the visa was

refused.” 9 FAM 504.11-3(A)(1).

44. In the event that a visa is refused, the application must be

reconsidered if “within one year from the date of refusal [the applicant] adduces

further evidence tending to overcome the ground of ineligibility on which the refusal

was based.” 22 C.F.R. § 42.81(e).

II. Factual Background

A.

Executive Orders 13769 and 13780

45. On January 27, 2017, President Trump issued Executive Order 13769,

“Protecting the Nation From Foreign Terrorist Entry Into the United States.” 82

Fed. Reg. 8977 (Feb. 1, 2017) (“EO-1”). Section 3(c) of EO-1 suspended visa

adjudication and issuance for nationals of seven Muslim-majority countries: Iran,

Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

46. EO-1 was immediately challenged in several courts and was quickly

enjoined in large part, most significantly by a nationwide injunction issued on

February 3, 2017. See Washington v. Trump, No. C17-0141-JLR, 2017 WL 462040

(W.D. Wash. Feb. 3, 2017) (enjoining sections 3(c), 5(a)-(c), and 5(e) of EO-1);

Darweesh v. Trump, No. 17 CV 480, 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017)

(prohibiting the government from removing individuals pursuant to EO-1); Aziz v.

Trump, No. 1:17 CV 116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) (granting

preliminary injunction of portions of EO-1 on Establishment Clause grounds).

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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 15 of 34
47. On March 6, 2017, President Trump issued a second executive order, which revoked and replaced the first. See Exec. Order No. 13780, “Protecting the Nation from Foreign Terrorist Entry Into the United States,” 82 Fed. Reg. 13209 (Mar. 9, 2017) (“EO-2” or “Second Executive Order”). As relevant here, section 2(c) of EO-2 bans nationals of six (rather than seven) overwhelmingly Muslim countries from “entry into the United States” for a period of 90 days, beginning on the order’s effective date of March 16, 2017. Order § 2(c); see id. § 1(g) (stating that the Order omits Iraq because of its “close cooperative relationship” with the United States).
48. Section 12(c) of the Second Executive Order provides that “no immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.” Order § 12(c).
49. The stated effective date of the Second Executive Order was March 16, 2017. See id. § 14. Accordingly, between March 6, 2017 (the date the Order was issued), and March 15, 2017, the Order was not in effect. As with the first Executive Order, the second was also immediately challenged in court.
50. Acknowledging the delayed effective date, the State Department issued a cable on March 10, 2017, providing guidance to all diplomatic and consular posts regarding EO-2. See (SBU) New Executive Order 13780: Protecting The Nation From Foreign Terrorist Entry Into The United States - Guidance To Visa-Issuing Posts, 17 STATE 23338. The cable announced the issuance of EO-2, the rescission of EO-1, and explained that “[w]e are working with the Department of Justice to determine when and how we may proceed with implementing the new E.O., in light
15

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 16 of 34
of pending litigation. . . . Although posts should be prepared to implement this guidance as of [March 16, 2017], do not begin implementation until you receive authorization to do so; such authorization will be sent in a subsequent cable.” Id. ¶ 1. On March 15, 2017, the U.S. District Court for the District of Hawai‘i issued a nationwide injunction enjoining Defendants from enforcing or implementing sections 2 and 6 of the Second Executive Order. Hawai‘i v. Trump, No. CV 1700050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017). Thus, this ruling enjoined the section suspending entry of nationals from Syria into the United States before it ever took effect.
51. On March 16, 2017, the Department of State issued another cable providing guidance to visa-issuing posts to halt implementation of EO-2, based on District of Hawai’i ruling. See (SBU) Executive Order 13780: Protecting the Nation From Foreign Terrorist Entry into the United States - Guidance to Visa Issuing Posts: Halt Implementation, 17 STATE 24800. The cable instructed that the March 15 order in Hawai‘i v. Trump “took effect immediately, so all enforcement of the visa suspension in the Executive Order must not be implemented and visa processing must continue as normal . . . .” Id. ¶ 1.
52. On June 12, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order upholding, in large part, the injunction issued by the U.S. District Court for the District of Hawai‘i. See Hawai‘i v. Trump, 859 F.3d 741 (9th Cir.
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 17 of 34
2017) (per curiam).2 On May 25, 2017, the U.S. Court of Appeals for the Fourth Circuit issued a decision in International Refugee Assistance Project v. Trump, affirming a preliminary injunction against enforcement of section 2(c) of the Executive Order. 857 F.3d 554 (4th Cir. 2017) (en banc) (affirming in part Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017)).
53. Defendants in those cases petitioned the Supreme Court for a writ of certiorari and applied for a stay of the injunctions pending appeal. On June 26, 2017, the Supreme Court granted certiorari, granted the stay application in part, and consolidated the two cases. See Trump v. Int’l Refugee Assistance Project, Nos. 16-1436 and 16-1540 (June 26, 2017) (per curiam).
54. The Court stayed the Hawai‘i injunction with respect to “foreign nationals abroad who have no connection to the United States,” but it reaffirmed that sections 2(c), 6(a), and 6(b) of EO-2 “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Id. at 11-13. That standard, the Supreme Court made clear, protects any foreign national with a “close familial relationship” with a person in the United States. Id. at 11-12. The government almost immediately conceded

2

The Ninth Circuit affirmed the injunction as to section 2(c), which suspended

entry of nationals from the six designated countries for 90 days; section 6(a), which

suspended the U.S. Refugee Admissions Program for 120 days; and section 6(b),

which capped the entry of refugees to 50,000 in fiscal year 2017. The Court vacated

the portions of the injunction that prevented the government from conducting

internal reviews, as otherwise directed in sections 2 and 6, and the injunction to the

extent that it ran against the President. Hawai‘i v. Trump, 859 F.3d 741 (9th Cir.

2017) (per curiam).

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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 18 of 34
that sibling relationships count as a “bona fide relationship” that prevents the application of the Executive Order.
55. Following the Supreme Court’s ruling, the Department of State began to enforce the non-enjoined portions of the Second Executive Order, adopting a narrow interpretation of the “close familial relationship” exception. This practice was challenged in court, and on July 13, 2017, the U.S. District Court for the District of Hawai‘i modified its preliminary injunction to prohibit the Government from applying sections 2(c), 6(a) and 6(b) of EO-2 to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. The Court concluded that such individuals have sufficiently “close family relationship” to fall within the ambit of the preliminary injunction, as modified by the Supreme Court. Hawai‘i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 2989048 (D. Haw. July 13, 2017).
56. On July 19, 2017, the Supreme Court denied the Government’s motion seeking clarification of the Court’s June 26, 2017 order, thereby leaving the Hawai‘i court’s July 13, 2017 modified injunction in place. See Trump v. Hawai‘i, No. 161540, --- S. Ct. ---, 2017 WL 3045234 (U.S. July 19, 2017).
57. The State Department’s website subsequently instructed that “[i]n light of the July 13, 2017 U.S. District Court of Hawai‘i ruling regarding the definition of ‘close familial relationship’ as that phrase was used in the Supreme Court’s June 26, 2017 order on implementing section 2(c) of E.O. 13780, a close familial relationship is defined as a parent (including parent-in-law), spouse, fiancé,
18

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 19 of 34

child, adult son or daughter, son-in-law, daughter-in-law, sibling, grandparents,

grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and

nieces, and cousins.” Ex. 1.

58. On information and belief, between March 6, 2017 (the date of issuance

of the second Executive Order) and March 15, 2017 (the date the Order was

enjoined), some consulates or consular officials began to halt or delay the processing

of visa applications for nationals from the six-impacted countries, including

Plaintiffs’, while awaiting further instructions on how to implement the terms of the

Order.

B.

Plaintiffs’ Visa Applications

59. On January 5, 2004, Plaintiff Jane Doe # 1 filed an I-130 Petition on

behalf of her sister, Jane Doe # 2, her sister’s husband John Doe # 1, and her sister’s

four children. The Petition was approved on May 7, 2010.

60. In the seven years since the petition was approved, Plaintiffs have

diligently pursued the lengthy and rigorous immigrant visa process, which entails,

inter alia, filing immigrant visa applications, paying thousands of dollars in filing

fees and related costs, and undergoing security screenings and medical

examinations.

61. On January 9, 2017, Jane Doe # 2 and her family were interviewed by

the Consular Section of the U.S. Embassy in Beirut, Lebanon. See Ex. 2. After the

interview, the Consulate requested more paperwork from Plaintiffs and asked Jane

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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 20 of 34
Doe # 2 to submit a new passport. On or around January 23, 2017, Plaintiffs submitted the requested materials.
62. On February 16, 2017, Jane Doe # 2 received a phone call from the Consulate in Lebanon, telling her that Plaintiffs’ visa application had been approved. The Consulate further instructed her to bring the family’s passports to the Embassy in Lebanon so that their visas could be stamped onto the passports. After the phone conversation, Jane Doe # 2 emailed the Consulate asking for written confirmation of this information in the event she needed to provide it to Lebanese border officials. The same day, the Consulate responded to the email, stating “[y]ou can send your passports any working day. . . , with anyone on your behalf. Whoever will submit the passports will get a receipt to receive the visas after one week.” Ex. 3.
63. After receiving this verbal and written confirmation that the visa application had been approved and the visas would be issued, John Doe # 1—the family’s sole breadwinner—resigned from his job, the children left school midsemester, and the family packed up their lives and traveled to Lebanon in anticipation of immigrating to the United States. Plaintiffs did not make these decisions lightly. Instead, Plaintiffs accepted these major disruptions in their lives and put their financial stability and personal safety at risk in reliance on Defendants’ assurances that their visas would be issued within a matter of weeks.
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 21 of 34
64. In compliance with the Consulate’s instructions, the family submitted their passports to the Embassy in Lebanon on February 27, 2017, and received a receipt directing them to retrieve their passports on March 10, 2017. See Ex. 4.
65. On March 9, 2017, three days after the issuance of the Second Executive Order, John Doe # 1 received a phone call from a consular official informing him that the visas would not be available the next day as promised. No explanation was provided for this abrupt change in what they previously had been told. As noted above, at this point in time the Second Executive Order had just been issued but was not yet in effect. On information and belief, consular officials wrongly applied it to Plaintiffs’ visas and failed to issue them as scheduled.
66. On March 23, 2017, Jane Doe # 1 emailed the Consulate requesting an update on the status of the family’s visas. The Consulate responded via email the same day, stating that the family’s case was undergoing administrative processing. See Ex. 5.
67. Prior to receiving the Consulate’s March 23, 2017 email response, the family was never notified that their case was undergoing administrative processing. This is despite State Department guidelines requiring such notification in the form of a Section 221(g) refusal letter outlining the “provision of law under which the visa is refused.”
68. After nearly three months without receiving a single update despite multiple requests for information, Jane Doe # 1 sent an email to the Consulate on June 11, 2017, stating that her sister would retrieve the family’s passports from the
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 22 of 34
Embassy on June 14, 2017. See Ex. 6. She explained that her sister “was told that her visas would be issued after ten days and her ten days have become a hundred.” Id.
69. On June 14, 2017, Jane Doe # 2 retrieved the passports from the Embassy. Her passport contained a visa with an issue date of March 15, 2017, which was subsequently stamped “Cancelled Without Prejudice.” Ex. 7. None of the remaining family members’ passports contained a visa or were stamped in any manner. Jane Doe # 2 was told by consular officials that she would be contacted once her family’s visas had been reissued.
70. Around the time EO-1 and EO-2 were issued, many visa applicants from the affected nations had their passports returned to them with visas stamped “Cancelled Without Prejudice.”
71. On June 20, 2017, the family’s retained immigration counsel emailed the Consulate to inquire about the status of the visas. The attorney explained that the family “successfully [was] interviewed at the U.S. Embassy in Beirut and [was] told [their] visa[s] would be issued shortly.” Ex. 8. She further explained that the delay in issuing the visas “has caused extreme hardship to the family including delaying the children’s education, having to leave Syria and wait in Lebanon while waiting for their visas.” Id. She requested that the visas be issued as soon as possible.
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 23 of 34
72. On June 27, 2017, the Consulate responded via email, explaining that the family’s visas were still undergoing administrative processing and that the Consulate could not predict when the processing would be complete. See Ex. 9.
73. On July 5, 2017, the attorney emailed the Consulate again, emphasizing that the family’s situation was now urgent. See Ex. 10. The attorney explained that “due to the delay [Jane Doe # 2] and her derivatives have overstayed in Lebanon for circumstances beyond their control. Now [John Doe # 2] must return to Syria before his 18th birthday on July 28, 2017 or he will be automatically be drafted to the Syrian army.” Id. Given the urgent situation, the attorney asked the Consulate to issue the visas immediately or, in the alternative, to allow the family to return temporarily to Syria to resolve the issue of John Doe # 2’s draft status, and then return to Lebanon to continue awaiting the issuance of their visas. To date, Plaintiffs have not received a response to this inquiry.
74. On July 5, 2017, the attorney also emailed the Department of Homeland Security to request assistance on this matter. To date, Plaintiffs have not received a response to this inquiry.
75. On July 24, 2017, the Plaintiff Family returned to Syria from Lebanon, where they had been waiting for nearly six months for their visas to be issued. The family’s eldest son, Plaintiff John Doe # 2, turned eighteen on July 28th, and the family needed to return to Syria to enroll him in university and obtain an educational waiver to avoid his automatic conscription into the Syrian army. The family currently resides in Syria, awaiting information about their visas.
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 24 of 34
76. At no time have Defendants explained the reason Plaintiffs’ visas are purportedly in administrative processing, and this claim is contradicted by other information provided by Defendants. Beginning in at least May 2017 up to the date of the filing of this complaint, the State Department website continues to indicate that Jane Doe # 2’s visa has been “issued.” See Ex. 11. The website further explains that “[y]our visa has been printed. Depending on local procedures at the location where you were interviewed, your visa will be mailed or available for pickup soon. If there are further questions, or if we need updated contact information, you will be contacted.” Id.
77. The website further indicates that two of the family members’ visas have been placed in administrative processing: John Doe # 1 and John Doe # 2. See Exs. 12 and 13. According to the website, “[t]his processing can take several weeks.” Id. See also Administrative Processing Information, U.S. Department of State, Bureau of Consular Affairs, available at https://travel.state.gov/content/visas/en/general/administrative-processinginformation.html (last visited Sept. 26, 2017) (“Most administrative processing is resolved within 60 days of the visa interview.”).
78. The website reflects that the remaining family members’ visas are “Ready.” See Exs. 14, 15, and 16. The website instructs that “[y]our case is ready for your interview when scheduled at the U.S. Consular section. If you have already scheduled an appointment for an interview, please prepare your documents as directed in your appointment letter and appear at the consulate on the appointed
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 25 of 34
date and time. Otherwise, please wait until you have been notified of your interview appointment.” Id. This explanation as applied to their visas is obviously incorrect, since the family was interviewed in January 2017 and subsequently told that their visas had been approved. III. Defendants’ Inaction is Unreasonable and Unlawful
79. Plaintiffs contend that Defendants’ failure to issue the family’s approved visas is a direct result of the unlawful application of the Second Executive Order, an application that should immediately be enjoined. Plaintiffs’ visa applications had been completed, executed, and approved, and their visas were about to be issued when the issuance of EO-2 abruptly halted the process. Three days after EO-2 was issued, the Consulate suddenly reversed course and informed John Doe # 1 that the visas would not be issued. The “cancelled without prejudice” stamp on Jane Doe # 2’s visa is the same as stamps that were used in a widespread manner during implementation of the first Executive Order, providing further support for Plaintiffs’ understanding that a wrongful application of EO-2 is the cause of the delay in issuance of their visas. Defendants have provided no alternative explanation for why Plaintiffs’ approved visas were suddenly canceled or stalled precisely at the time the Second Executive Order was issued.
80. Plaintiffs, however, were not lawfully subject to either executive order, as the first order was enjoined on February 3, 2017—prior to Defendants’ approval of Plaintiffs’ visa applications—and the second order was enjoined before its effective date of March 16, 2017.
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 26 of 34
81. Moreover, even though a limited version of EO-2 went into effect on June 26, EO-2, it does not apply to Plaintiffs because of their bona fide close familial relationship with a U.S. citizen. See Trump v. IRAP, Nos. 16-1436 and 16-1540, slip op. at 11-13; Executive Order on Visas, Frequently Asked Questions, TRAVEL.STATE.GOV, available at http://travel.state.gov/content/travel/en/ news/important-announcement.html (“Qualified applicants in the immediaterelative and family-based immigrant visa categories are exempt from the E.O. under the Supreme Court’s order, because having a credible claim of a bona fide close familial relationship is inherent in the requirements for the visa.”).
82. Furthermore, to the extent that Jane Doe # 2’s visa that was issued on March 15, 2017 was subsequently “cancelled without prejudice” due to the Second Executive Order, such action violates the express terms of EO-2, which state that “[n]o immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.” Order § 12(c).
83. Accordingly, the executive orders are not valid grounds on which Defendants can refuse to issue Plaintiffs’ visas, cancel their visas, or delay the adjudication of their applications. There is no other lawful justification for Defendants’ inaction. IV. Plaintiffs Have Been Harmed By Defendants’ Inaction
84. As a result of Defendants’ failure to issue Plaintiffs’ visas in a timely manner, Plaintiffs have suffered substantial, concrete, and particularized injury.
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 27 of 34
85. As an initial matter, Plaintiffs have incurred significant expenses as a result of the delay. The Plaintiff Family spent thousands of dollars traveling to the Consulate in Lebanon and renting an apartment in Tripoli, Lebanon for six months while they waited for Defendants to issue their visas. As noted above, Plaintiff John Doe # 1 resigned from his job because of Defendants’ assurances that the visas would be issued, costing the family many thousands of dollars in lost wages and other benefits. He has been unable to find new employment and cannot return to his previous employment because he retired based on Defendants’ assurances. These losses are not recoverable from Defendants.
86. Additionally, Plaintiffs suffered substantial emotional trauma and threats to their health and well-being as a result of the delay. On the basis of Defendants’ assurances that their visas would be issued within a matter of weeks, the family’s four children left school and university in the middle of the school year, significantly disrupting their educations and resulting in a lost school year that they are now having to repeat.
87. The family also faced extreme anxiety, insecurity, and fear of deportation during their time in Lebanon. The family was forced to overstay their Lebanese visas because of Defendants’ delay, and for over four months Plaintiffs waited anxiously in Lebanon, knowing that they could be deported at any time.
88. Having now returned to Syria, the Plaintiff Family is exposed to the threat of violence on a daily basis. Although they are in a relatively stable location
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 28 of 34
compared to other areas of the country, car bombings and other violence are still common, and the ongoing civil war renders any security tenuous.
89. Upon returning to Syria, John Doe # 2, the eldest son, was able to enroll in school and obtain an educational waiver from conscription into the Syrian army through March 2018. However, as the war continues, the Syrian government has progressively been tightening the rules surrounding such exemptions and has been applying those rules far more stringently. There is no guarantee that John Doe # 2 will be able to renew his waiver or allowed to leave the country, and the family fears that he could be forced into military service.
90. Plaintiffs have suffered enormous stress and emotional trauma not only from their disappointment and uncertainty regarding their visas, but also from their concerns for the well-being and safety of their family. Moreover, all Plaintiffs face indefinite separation from their close family members in the United States, creating irreparable harm by further delay. Such separation has had a significant emotional impact on Plaintiffs, heightened by the ambiguity surrounding when this separation will end. V. Plaintiffs Are Entitled To Relief
91. District courts have mandamus jurisdiction to “compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. §1361. Moreover, a district court reviewing agency action under the APA may “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). “Agency action” includes, in relevant part, “an agency
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 29 of 34
rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).
92. The APA requires administrative agencies to conclude matters presented to them “within a reasonable time.” 5 U.S.C. § 555. The INA’s implementing regulations further provide that “[w]hen a visa application has been properly completed and executed before a consular officer in accordance with the provisions of INA and the implementing regulations, the consular officer must either issue or refuse the visa under INA 212(a) or INA 221(g) or other applicable law.” 22 C.F.R. 42.81 (emphasis added). Similarly, State Department policy makes clear that “[o]nce an application has been executed, the consular officer must either issue the visa or refuse it. A consular officer cannot temporarily refuse, suspend, or hold the visa for future action.” 9 FAM 504.1-3(f). Under State Department policy, “[t]here are no exceptions to th[is] rule.” 9 FAM 504.1-3(h).
93. Here, Defendants adjudicated Plaintiffs’ visa applications and determined no later than February 16, 2017, that the visas would be issued. That decision, which was communicated to Plaintiffs, triggered Defendants’ obligation to issue the visas. Indeed, the Consulate provided Plaintiffs with written confirmation of this arrangement: Plaintiffs were to submit their passports and could expect to receive their visas within one week. See Ex. 3. Because Defendants have determined that Plaintiffs’ visas will be issued, all that remains is for Defendants to implement this decision through the ministerial act of affixing the visas to Plaintiffs’ passports.
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 30 of 34
94. Defendants’ failure to act violates the APA, 5 U.S.C. § 706(1), the INA and its implementing regulations, and agency policy. Because Defendants have failed to carry out their duties and obligations under the law and governing regulations, thereby depriving Plaintiffs of their clearly-established rights, Plaintiffs are entitled to a writ of mandamus and/or relief under the APA directing Defendants to issue their visas forthwith.
FIRST CLAIM FOR RELIEF 28 U.S.C. § 1361
Writ of Mandamus to compel officers and agencies of the United States to perform a duty owed to Plaintiffs
95. The above paragraphs are incorporated herein by reference. 96. The INA and the regulations issued pursuant to it impose on Defendants a non-discretionary duty to issue visas once the decision to issue them has been made. The APA further requires agencies to “proceed to conclude a matter presented” to the agency “within a reasonable time.” 5 U.S.C. § 555(b). 97. No later than February 16, 2017, Defendants approved Plaintiffs’ visa application and determined that Plaintiffs’ visas would be issued. All that remains is the final, ministerial act of affixing the visas to Plaintiffs’ passports and tendering them to Plaintiffs. 98. The issuance of Plaintiffs’ visas after the decision has been made to issue them is a nondiscretionary duty imposed upon Defendants by statute and/or regulation. Plaintiffs have a clear right to the issuance of the visas. 99. Defendants have failed and refused to issue Plaintiffs’ visas. This failure and refusal have caused and continue to cause Plaintiffs harm, including
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separating Plaintiffs from their family members and exposing them to serious, prolonged, and imminent threats to their life and well-being.
100. Plaintiffs have brought this action because Plaintiffs have no other means to compel Defendants to perform the duties Defendants owe to them. Plaintiffs have exhausted all available remedies.
101. Based on the foregoing, Plaintiffs are entitled to a writ of mandamus directing Defendants to issue the visas forthwith.
SECOND CLAIM FOR RELIEF Administrative Procedure Act, 5 U.S.C. § 706(1): Agency Action Unreasonably Delayed or Unlawfully Withheld 102. The above paragraphs are incorporated herein by reference. 103. The INA and the regulations issued pursuant to it impose on Defendants a non-discretionary duty to issue visas once the decision to issue them has been made. The APA further requires agencies to “proceed to conclude a matter presented” to the agency “within a reasonable time.” 5 U.S.C. § 555(b). 104. Here, Defendants have failed to issue Plaintiffs’ visas within a reasonable time after deciding to issue them and this failure constitutes agency action “unlawfully withheld or unreasonably delayed” within the meaning of 5 U.S.C. § 706(1). 105. This failure has caused and continues to cause Plaintiffs harm including separating Plaintiffs from their family members and exposing them to serious, prolonged, and imminent threats to their life and well-being.
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 32 of 34
106. Plaintiffs have brought this action because Plaintiffs have no other means to compel Defendants to act. Plaintiffs have exhausted all available remedies.
107. Based on the foregoing, Plaintiffs are entitled to an order directing Defendants to issue Plaintiffs’ visas forthwith in accordance with the APA.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully ask this Court to issue judgment in their favor and against Defendants, and to grant the following relief: A. Issue a writ of mandamus and a temporary, preliminary, and permanent injunction directing Defendants to effectuate the issuance of Plaintiffs’ visas within fourteen (14) days of the issuance of the writ; B. Issue an order and a temporary, preliminary, and permanent injunction pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(1), directing Defendants to effectuate the issuance of Plaintiffs’ visas within fourteen (14) days of the issuance of the order; C. Declare that Defendants’ continued failure to issue Plaintiffs’ approved visas constitutes agency action unlawfully withheld or unreasonably delayed; D. Declare that Plaintiffs are not—and never have been—subject to Executive Orders 13780 or 13769 and that any application of the Executive Orders to Plaintiffs’ applications is unlawful; E. Decide the action on an accelerated schedule in light of the ongoing harm Plaintiffs are suffering as a result of Defendants’ refusal to act;
32

Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 33 of 34 F. Retain jurisdiction over this action and any attendant proceedings until Defendants have in fact finally affixed Plaintiffs’ visas to their passports, tendered those passports to Plaintiffs, and communicated that fact to the Court; G. Award Plaintiffs reasonable attorney’s fees and expenses for the cost of this action; and H. Grant such further relief as this Court deems just and proper.
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Case 1:17-cv-02005-RCL Document 3 Filed 09/28/17 Page 34 of 34

September 27, 2017

Respectfully submitted,

/s/ Mark H. Lynch

`

Mark H. Lynch (DC Bar No. 193110)

Megan Crowley∗ (NY Bar No. 4930376)†

Jon-Michael Dougherty∗ (DC Bar No. 1032660)

Kyle Haley∗ (DC Bar No. 1021926)

Rebecca Smith∗ (CA Bar No. 315840)†

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street NW

Washington, DC 20004-2401

(202) 662-6000 (Telephone)

(202) 662-6291 (Fax)

Johnathan Smith (DC Bar No. 1029373) Sirine Shebaya (DC Bar No. 1019748) MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Phone: 202.897.1894

Maha Khalil (TX Bar No. 24097935) THE MODI LAW FIRM 1415 North Loop West, Suite 612 Houston, TX 77008 Phone: 832.422.7789 Pro hac vice application forthcoming

Attorneys for Plaintiffs

∗ Pro hac vice pending. † DC Bar application pending.
34

 
 Case 1:17-cv-02005-RCL Document 12 Filed 11/27/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JANE DOE #1 et al., Plaintiffs,
v. U.S. DEPARTMENT OF HOMELAND SECURITY et al.,
Defendants.

Civil Action No.: 1:17-cv-02005

JOINT MOTION TO STAY PROCEEDINGS The parties in the above-captioned case respectfully move this Court to enter an order staying all proceedings in this case for 90 days. Recent communications between the parties suggest that Plaintiffs’ claims may be resolved without further litigation. As a result, the parties believe that a stay is appropriate to give the parties a reasonable amount of time to attempt to resolve this matter. During the proposed stay, Plaintiffs agree to take all necessary steps to obtain their visas, and Defendants agree to process Plaintiffs’ visa requests in an expedited manner. Furthermore, the parties propose that they file joint status reports with the Court during the pendency of the stay to update the Court on developments in this matter, with an initial report due 60 days after entry of an order staying these proceedings, and a subsequent report due 30 days thereafter.

Case 1:17-cv-02005-RCL Document 12 Filed 11/27/17 Page 2 of 3
“District Court[s] ha[ve] broad discretion to stay proceedings.” Clinton v. Jones, 520 U.S. 681, 706 (1997). “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936); see also Friends of Animals v. Pruitt, No. 16-1503 (D.D.C. Oct. 18, 2016) (order granting stay of proceedings to allow parties to explore settlement). In light of the potential for the parties to resolve this matter without further Court involvement, exercise of the Court’s broad discretion to grant a stay of this matter would be efficient for both the parties and the Court.
For the reasons set forth above, the parties respectfully request that the Court grant the relief sought in this motion. A proposed order is attached.

Respectfully submitted,
JESSIE K. LIU, DC Bar # 472845 United States Attorney for the District of Columbia
DANIEL F. VAN HORN DC Bar # 924092 Civil Chief
/s/ KENNETH ADEBONOJO KENNETH ADEBONOJO Assistant United States Attorney Judiciary Center Building 555 4th Street, N.W. Civil Division Washington, D.C. 20530

_/s/ Mark H. Lynch____________ Mark H. Lynch DC Bar # 193110 COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001 Telephone: 202-662-5544 Fax: 202-778-5544 mlynch@cov.com
Johnathan Smith DC Bar # 1029373 Sirine Shebaya DC Bar # 1019748 MUSLIM ADVOCATES

Case 1:17-cv-02005-RCL Document 12 Filed 11/27/17 Page 3 of 3

(202) 252-2562 Attorney for Defendants

P.O. Box 66408 Washington, D.C. 20035 Phone: 202.897.1894
Attorneys for Plaintiffs

November 27, 2017

 
 Case 1:17-cv-02005-RCL Document 13 Filed 12/20/17 Page 1 of 1

FILED

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEC 2 0 2017
Clerk, U.S. District and Bankruptcy Courts

JANE DOE #1 et al., Plaintiffs,
v. U.S. DEPARTMENT OF HOMELAND SECURITY et al.,
Defendants.

Civil Action No.: 1:17-cv-02005

JPROPOSErf'ORDER GRANTING MOTION TO STAY PROCEEDINGS

Mo£~~ Having considered the parties' Joint

Stay Proceedings, it is hereby

ORDERED that:

1. The parties' Joint Motion to Stay Proceedings is GRANTED;

2. This case is stayed for 90 days from entry of this Order;

3. The parties shall file periodic joint status reports during the pendency of

the stay. The first status report shall be filed no later than 60 days after

the entry ofthis Order, with a subsequent status report to be filed 30 days

thereafter.

SO ORDERED.
Date: ' "t;(-ulr1

Hon. Royce C. Lamberth District Judge

 
 Case 1:17-cv-02005-RCL Document 19 Filed 02/15/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JANE DOE #1 et al., Plaintiffs,
v. U.S. DEPARTMENT OF HOMELAND SECURITY et al.,
Defendants.

Civil Action No.: 1:17-cv-02005

NOTICE OF VOLUNTARY DISMISSAL
PLEASE TAKE NOTICE that Plaintiffs hereby dismiss this action without prejudice, in accordance with Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, by filing this Notice of Voluntary Dismissal before the service of an answer or motion for summary judgment by the Defendants.

Dated this 15th day of February, 2018.

Respectfully submitted,
/s/ Mark H. Lynch Mark H. Lynch (DC Bar No. 193110) Megan Crowley (DC Bar No. 1049027) Kyle Haley (DC Bar No. 1021926) COVINGTON & BURLING LLP One City Center 850 Tenth Street, NW Washington, DC 20001 Telephone: 202-662-6000
Johnathan Smith (DC Bar No. 1029373) Sirine Shebaya (DC Bar No. 1019748) MUSLIM ADVOCATES

Case 1:17-cv-02005-RCL Document 19 Filed 02/15/18 Page 2 of 2
P.O. Box 66408 Washington, D.C. 20035 Telephone: 202-897-1894 Attorneys for Plaintiffs