CLOSED,MANDAMUS,TYPE-D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17-cv-01533-TSC

P.K. et al v. TILLERSON et al Assigned to: Judge Tanya S. Chutkan Case in other court: USCA, 18-05156 Cause: 05:0706 Judicial Review of Agency Actions

Date Filed: 08/03/2017 Date Terminated: 03/27/2018 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff
P.K. TERMINATED: 09/05/2017

represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street NW Ste 2nd Floor Washington, DC 20005 202-601-4266 Fax: 202-457-0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew E. Price JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6873 Fax: (202) 661-4802 Email: mprice@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Michelman AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW

2nd Floor Washington, DC 20005 (202) 457-0800 Fax: (202) 457-0805 Email: smichelman@acludc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0785 Email: cwofsy@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung JUSTICE ACTION CENTER P.O. Box 27280 Los Angeles, CA 90027 713-560-7518 Email: esther.sung@justiceactioncenter.org TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox INTERNATIONAL REFUGEE ASSISTANCE PROJECT P.O. Box 170208 Atlanta, GA 30317 516-701-4233 Fax: 212-533-4598 Email: jcox@refugeerights.org TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 202) 639-6035

Plaintiff
N.H. TERMINATED: 09/05/2017

Email: mminzner@jenner.com TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 202-244-2990 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner

Plaintiff
M.K. TERMINATED: 08/03/2017

(See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner (See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf

Plaintiff M.K.1 TERMINATED: 09/05/2017
Plaintiff

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner (See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

M.K.2 TERMINATED: 09/05/2017
Plaintiff AFSHAN ASADI SORKHAB TERMINATED: 09/14/2017

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner (See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
NEDA HEIDARI DEHKORDI TERMINATED: 09/14/2017

Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner (See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Y.S.1 TERMINATED: 09/14/2017

Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner (See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Y.S.2 TERMINATED: 09/14/2017

Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner (See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Y.S.3 TERMINATED: 09/14/2017

Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner (See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE

Plaintiff
HAMED SUFYAN OTHMAN ALMAQRAMI

Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner (See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE

Plaintiff
RADAD FAUIZ FUROOZ On behalf of themselves and all others similarly situated TERMINATED: 08/28/2017

Max J. Minzner (See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Max S. Wolson NATIONAL IMMIGRATION LAW CENTER P.O. Box 34573 Washington, DC 20043 (202) 971-9271 Email: wolson@nilc.org ATTORNEY TO BE NOTICED
Noah Bokat-Lindell JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 202-637-6314 Email: nbokat-lindell@jenner.com ATTORNEY TO BE NOTICED
Samer Elias Khalaf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address)

Plaintiff ALIAKBAR NOWZARI GOLSEFID
Plaintiff MASOUMEH FOTOHI

PRO HAC VICE ATTORNEY TO BE NOTICED
Esther H. Sung (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max J. Minzner (See above for address) TERMINATED: 10/03/2019 PRO HAC VICE
Samer Elias Khalaf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max S. Wolson (See above for address) ATTORNEY TO BE NOTICED
Noah Bokat-Lindell (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew E. Price (See above for address)

Plaintiff BEHNAM NOZARI GOLSEFID
Plaintiff FARZAD ABDOLLAHI ZADEH

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max S. Wolson (See above for address) ATTORNEY TO BE NOTICED
Noah Bokat-Lindell (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max S. Wolson (See above for address) ATTORNEY TO BE NOTICED
Noah Bokat-Lindell (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE

Plaintiff ZHREH BABADI
Plaintiff SZ

Max S. Wolson (See above for address) ATTORNEY TO BE NOTICED
Noah Bokat-Lindell (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max S. Wolson (See above for address) ATTORNEY TO BE NOTICED
Noah Bokat-Lindell (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max S. Wolson (See above for address) ATTORNEY TO BE NOTICED
Noah Bokat-Lindell

Plaintiff RZ
Plaintiff AIMAN ALSAKKAF
V. Defendant

(See above for address) ATTORNEY TO BE NOTICED
represented by Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max S. Wolson (See above for address) ATTORNEY TO BE NOTICED
Noah Bokat-Lindell (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew E. Price (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin B. Cox (See above for address) TERMINATED: 09/22/2019 PRO HAC VICE
Max S. Wolson (See above for address) ATTORNEY TO BE NOTICED
Noah Bokat-Lindell (See above for address) ATTORNEY TO BE NOTICED

REX W. TILLERSON In his official capacity as Secretary of State TERMINATED: 06/22/2020
Defendant JOHN DOES #1-#50, in their official capacity as the consular officials responsible for issuing diversity visas

represented by Catherine Hancock Dorsey U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-3469 Fax: (202) 514-7964 Email: catherine.dorsey@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Samuel Press U.S. DEPARTMENT OF JUSTICE Immigration Litigation Ben Franklin Station P.O. Box 868 Washington, DC 20044 (202) 305-0106 Fax: (202) 305-7000 Email: joshua.press@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Platt U.S. Department of Justice Civil Division, Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 532-4074 Fax: (202) 305-7000 Email: steven.a.platt@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Catherine Hancock Dorsey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
MICHAEL R. POMPEO In his Official Capacity as Secretary of State

Steven A. Platt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Catherine Hancock Dorsey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Platt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/03/2017 08/03/2017
08/03/2017

# Docket Text
1 PETITION for Writ of Mandamus ( Filing fee $ 400 receipt number 4616086443.) filed by AFSHAN ASADI SORKHAB, N.H., M.K.1, M.K.2, Y.S.2, Y.S.1, P.K., Y.S.3, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K.. (Attachments: # 1 Civil Cover Sheet)(td) (Entered: 08/04/2017)
2 MOTION for Preliminary Injunction, MOTION Mandamus Relief by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2,
Y.S.3 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(td) (Entered: 08/04/2017)
3 MOTION for Class Certification by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit c, # 5 Exhibit D, # 6 Text of Proposed Order, # 7 Certificate of Service)(td) (Entered: 08/04/2017)

08/03/2017
08/03/2017 08/03/2017 08/03/2017 08/03/2017

4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Max Minzner, :Firm- JENNER & BLOCK, :Address- 1099 New York Avenue NW, Suite 900, Washington, DC 20001. Phone No. - (202) 639-6035. Fee Status: Fee Paid receipt number: 4616086442. by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3 (td) (Entered: 08/04/2017)
5 MOTION for Order to Proceed Anonymously and file supporting exhibits under seal by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3 (Attachments: # 1 Memorandum in Support)(td) (Additional attachment(s) added on 8/4/2017: # 2 Certificate of Service) (ztd). (Entered: 08/04/2017)
6 ORDER granting 5 Motion for Order to Proceed Anonymously and to File Supporting Exhibits Under Seal (td) (Entered: 08/04/2017)
7 SEALED DOCUMENT (Main Document Exhibit A) filed by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3. re 6 Order on Motion for Order. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit B)(ztd) (Entered: 08/04/2017)
8 NOTICE OF RELATED CASE. Case related to Case No. 17-537 TSC. (td) (Entered: 08/04/2017)

08/03/2017 08/04/2017
08/08/2017

SUMMONS (4) Issued as to REX W. TILLERSON, U.S. Attorney and U.S. Attorney General (td) (Entered: 08/10/2017)
9 CERTIFICATE OF SERVICE by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3 - Corrected Certificate of Service re 2 3 4 5 . (Price, Matthew) (Entered: 08/04/2017)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/4/2017. Answer due for ALL FEDERAL DEFENDANTS by 10/3/2017. (Price, Matthew) (Entered: 08/08/2017)

08/08/2017 08/09/2017 08/09/2017 08/09/2017 08/09/2017 08/09/2017 08/09/2017
08/09/2017
08/10/2017

MINUTE ORDER: Granting 4 Motion for Leave to Appear Pro Hac Vice. Max J. Minzner is hereby admitted pro hac vice to appear in this matter on behalf of Plaintiffs. Signed by Judge Tanya S. Chutkan on 8/8/17. (DJS) (Entered: 08/08/2017)
11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 08/07/2017. (Price, Matthew) (Entered: 08/09/2017)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. REX W. TILLERSON served on 8/7/2017 (Price, Matthew) (Entered: 08/09/2017)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JOHN DOES served on 8/7/2017 (Price, Matthew) (Entered: 08/09/2017)
14 NOTICE of Appearance by Joshua Samuel Press on behalf of All Defendants (Press, Joshua) (Entered: 08/09/2017)
15 NOTICE of Appearance by Arthur B. Spitzer on behalf of All Plaintiffs (Spitzer, Arthur) (Entered: 08/09/2017)
16 MOTION for Leave to Appear Pro Hac Vice :Attorney NameCody H. Wofsy, :Firm- American Civil Liberties Union Foundation, :Address- 39 Drumm St, San Francisco, CA 94111. Phone No. - (415) 343-0785. Fax No. - (415) 395-0950 Filing fee $ 100, receipt number 0090-5068353. Fee Status: Fee Paid. by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3 (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 08/09/2017)
17 MOTION for Leave to Appear Pro Hac Vice :Attorney NameSamer Elias Khalaf, :Firm- American-Arab Anit-Discrimination Committee, :Address- 1705 DeSales Street, N. W., Ste 500, Washington, D.C., 20036. Phone No. - 202-244-2990. Filing fee $ 100, receipt number 0090-5068416. Fee Status: Fee Paid. by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3 (Price, Matthew) (Entered: 08/09/2017)
MINUTE ORDER: Granting 16 Motion for Leave to Appear Pro Hac Vice. Cody H. Wofsy is hereby admitted pro hac vice to appear

08/10/2017
08/10/2017 08/10/2017 08/11/2017 08/11/2017
08/11/2017

in this matter on behalf of Plaintiffs. Signed by Judge Tanya S. Chutkan on 8/9/17. (DJS) (Entered: 08/10/2017)
MINUTE ORDER: Granting in part and denying in part 17 Motion for Admission Pro Hac Vice. Samer Elias Khalaf may be heard in open court on behalf of Plaintiffs, but may not file papers in this court. See Local Civil Rule 83.2(c)(2) (An attorney who engages in the practice of law from an office located in the District of Columbia must be a member of the District of Columbia Bar AND the Bar of this Court to file papers in this Court.). Signed by Judge Tanya S. Chutkan on 8/10/17. (DJS) (Entered: 08/10/2017)
18 NOTICE of Appearance by Scott Michelman on behalf of All Plaintiffs (Michelman, Scott) (Entered: 08/10/2017)
19 MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction MOTION Mandamus Relief by JOHN DOES, REX W. TILLERSON (Attachments: # 1 Text of Proposed Order)(Press, Joshua) (Entered: 08/10/2017)
MINUTE ORDER: Granting 19 Defendants' Motion for an Extension. Defendants' response to Plaintiffs' Motion for a Preliminary Injunction is due on 8/25/2017. Signed by Judge Tanya S. Chutkan on 8/11/2017. (lctsc2) (Entered: 08/11/2017)
20 MOTION to Expedite Hearing Date on Their Motion for Preliminary Injunction, MOTION for Reconsideration re Order Extending Time for the Filing of the Government's Opposition Brief by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3 (Attachments: # 1 Proposed Order)(Price, Matthew) (Entered: 08/11/2017)
MINUTE ORDER: Granting 20 Plaintiffs' Motion to Expedite Hearing and to Reconsider Order Extending Time for the Filing of the Government's Opposition. Defendants' opposition is due on 8/18/2017. A hearing on Plaintiffs' Motion for a Preliminary Injunction is scheduled for 8/21/2017 at 11:30 am. Parties will each have 30 minutes for oral argument. The court notes that despite the exigency noted in their motion, Plaintiffs waited until August 3, over a month after the Supreme Court's decision in Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080 (2017), to seek relief from this court. Signed by Judge Tanya S. Chutkan on 8/11/2017. (lctsc2) (Entered: 08/11/2017)

08/15/2017 08/15/2017 08/16/2017
08/16/2017
08/16/2017 08/17/2017 08/18/2017

Set/Reset Deadlines/Hearings: Government's Response due by 8/18/2017. Preliminary Injunction Hearing set for 8/21/2017 at 11:30 AM in Courtroom 2 before Judge Tanya S. Chutkan. (tb) (Entered: 08/15/2017)
ENTERED IN ERROR.....Set/Reset Deadlines: Response to PI motion due by 8/25/2017. (tb) Modified on 8/15/2017 (ztb). (Entered: 08/15/2017)
21 MOTION for Leave to Appear Pro Hac Vice :Attorney NameJustin B. Cox, :Firm- National Immigration Law Center, :AddressPO Box 170208, Atlanta, Georgia 30317. Phone No. - (678) 2795441. Fax No. - (213) 639-3911 Filing fee $ 100, receipt number 0090-5076719. Fee Status: Fee Paid. by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3 (Attachments: # 1 Declaration in Support, # 2 Proposed Order)(Price, Matthew) (Entered: 08/16/2017)
22 MOTION for Leave to Appear Pro Hac Vice :Attorney NameEsther H. Sung, :Firm- National Immigration Law Center, :Address- 3435 Wilshire Blvd., Suite 1600, Los Angeles, California, 90010. Phone No. - (213) 639-3900. Fax No. - (213) 639-3911 Filing fee $ 100, receipt number 0090-5076792. Fee Status: Fee Paid. by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3 (Attachments: # 1 Declaration in Support, # 2 Proposed Order)(Price, Matthew) (Entered: 08/16/2017)
AMENDED MINUTE ORDER: The court hereby amends its 8/11/2017 Minute Order to require Defendants to file their opposition to Plaintiffs' Motion for a Preliminary Injunction no later than 5 p.m. on 8/18/2017. Signed by Judge Tanya S. Chutkan on 8/16/2017. (lctsc2) (Entered: 08/16/2017)
MINUTE ORDER: Granting 21 22 Motions for Leave to Appear Pro Hac Vice. Justin B. Cox and Esther H. Sung are hereby admitted pro hac vice to appear in this matter on behalf of Plaintiffs. Signed by Judge Tanya S. Chutkan on 8/17/17. (DJS) (Entered: 08/17/2017)
23 NOTICE of Appearance by Catherine Hancock Dorsey on behalf of All Defendants (Dorsey, Catherine) (Main Document 23 replaced on 8/21/2017) (znmw). (Entered: 08/18/2017)

08/18/2017 08/18/2017 08/19/2017 08/21/2017 08/21/2017
08/22/2017 08/23/2017
08/24/2017

24 RESPONSE re 2 MOTION for Preliminary Injunction MOTION Mandamus Relief filed by JOHN DOES, REX W. TILLERSON. (Attachments: # 1 Declaration of Chloe Dybdahl)(Press, Joshua) (Entered: 08/18/2017)
25 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by JOHN DOES, REX W. TILLERSON (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order)(Press, Joshua) (Entered: 08/18/2017)
26 REPLY to opposition to motion re 2 MOTION for Preliminary Injunction MOTION Mandamus Relief filed by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3. (Price, Matthew) (Entered: 08/19/2017)
27 NOTICE of Appearance by Steven Albert Platt on behalf of All Defendants (Platt, Steven) (Entered: 08/21/2017)
Minute Entry: Motion Hearing held on 8/21/2017 before Judge Tanya S. Chutkan: re 2 MOTION for Preliminary Injunction MOTION Mandamus Relief filed by RADAD FAUIZ FUROOZ, Y.S.2, M.K.1, P.K., M.K.2, N.H., AFSHAN ASADI SORKHAB, Y.S.1, NEDA HEIDARI DEHKORDI, M.K., HAMED SUFYAN OTHMAN ALMAQRAMI, Y.S.3, motion heard and taken under advisement. (Court Reporter Scott Wallace) (tb) (Entered: 08/22/2017)
28 NOTICE OF FILING REDACTED DOCUMENT to[ 25] Response to motion by REX W. TILLERSON (The original PDF Document contained privacy information and was restricted pursuant to the EGovernment Act.) (Attachments: # 1 Declaration)(Press, Joshua) Modified on 8/28/2017 (DJS). (Entered: 08/22/2017)
29 ORDER: Plaintiffs and Defendants are both directed to file supplemental briefs and any necessary evidentiary material addressing the questions contained in the court's order. Defendants are also ordered to submit a sample "advisory opinion" of the type mentioned during oral argument, redacted as necessary, for the court's review. The parties' supplemental briefs should be no more than 12 pages and are due by 8/28/2017. Signed by Judge Tanya S. Chutkan on 8/23/2017. (lctsc2) (Entered: 08/23/2017)
Set/Reset Deadlines: Supplemental Memorandum due by 8/28/2017. (tb) (Entered: 08/24/2017)

08/28/2017
08/28/2017
08/28/2017 08/28/2017 08/28/2017 08/29/2017
08/30/2017

30 SUPPLEMENTAL MEMORANDUM to re 2 MOTION for Preliminary Injunction MOTION Mandamus Relief filed by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3. (Attachments: # 1 Exhibit A (redacted), # 2 Exhibit B, # 3 Exhibit C)(Price, Matthew) (Entered: 08/28/2017)
31 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3 (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Sealed Declaration, # 2 Proposed Order)(Price, Matthew) (Entered: 08/28/2017)
32 NOTICE of Voluntary Dismissal re Radad Fauiz Furooz (Price, Matthew) (Entered: 08/28/2017)
33 MOTION FOR LEAVE TO FILE DOCUMENT EX PARTE FOR
IN CAMERA REVIEW re 29 Order,, by REX W. TILLERSON (Attachments: # 1 Text of Proposed Order)(Press, Joshua) (Entered: 08/28/2017)
34 SUPPLEMENTAL MEMORANDUM to re 29 Order,, filed by JOHN DOES, REX W. TILLERSON. (Attachments: # 1 Declaration of Chloe Dybdahl)(Press, Joshua) (Entered: 08/28/2017)
35 Memorandum in opposition to re 33 MOTION FOR LEAVE TO FILE DOCUMENT EX PARTE FOR IN CAMERA REVIEW
re 29 Order,, filed by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, M.K., M.K.1, M.K.2, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3. (Price, Matthew) (Entered: 08/29/2017)
36 TRANSCRIPT OF PROCEEDINGS before Judge Tanya S. Chutkan held on 8-21-17; Page Numbers: (1-60). Date of Issuance:8-28-17. Court Reporter/Transcriber Scott Wallace, Telephone number 202-354-3196, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public

08/30/2017 08/30/2017
09/01/2017 09/05/2017 09/05/2017 09/11/2017

terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 9/20/2017. Redacted Transcript Deadline set for 9/30/2017. Release of Transcript Restriction set for 11/28/2017.(Wallace, Scott) (Entered: 08/30/2017)
MINUTE ORDER. Upon consideration of Plaintiffs' 31 Sealed Motion for Leave to File Document Under Seal, it is ORDERED that the 31 Motion be GRANTED. The Clerk is directed to file under seal the Declaration at Dkt. #31-1. SO ORDERED. by Judge Tanya S. Chutkan on 8/30/2017. (jth) (Entered: 08/30/2017)
37 SEALED DOCUMENT filed by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, M.K., M.K.1, N.H., P.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3. re Order on Sealed Motion for Leave to File Document Under Seal,. (This document is SEALED and only available to authorized persons.)(See ECF NO. 30 Exhibit A for redacted version) (ztd) Modified on 8/31/2017 (DJS). (Entered: 08/31/2017)
38 STATUS REPORT Regarding the Issuance of Visas to P.K. and Family by JOHN DOES, REX W. TILLERSON. (Attachments: # 1 Exhibit A - Dybdahl Declaration)(Platt, Steven) (Entered: 09/01/2017)
MINUTE ORDER granting 33 Defendants' Motion for Leave to File Document Ex Parte for in Camera Review. Defendants are ordered to deliver the sample advisory opinion to chambers by 9/6/2017 at 10:00 a.m. Signed by Judge Tanya S. Chutkan on 9/5/2017. (lctsc2) Modified event title on 9/6/2017 (znmw). (Entered: 09/05/2017)
39 NOTICE of Voluntary Dismissal re P.K., N.H., M.K.1 and M.K.2 (Price, Matthew) (Entered: 09/05/2017)
40 STATUS REPORT by JOHN DOES, REX W. TILLERSON. (Attachments: # 1 Declaration of Matt McNeil, # 2 Declaration of Charles Oppenheim)(Press, Joshua) (Entered: 09/11/2017)

09/11/2017 09/14/2017 09/15/2017 09/18/2017
09/18/2017 09/19/2017 09/21/2017
09/21/2017

41 RESPONSE re 40 Status Report filed by HAMED SUFYAN OTHMAN ALMAQRAMI, NEDA HEIDARI DEHKORDI, M.K., AFSHAN ASADI SORKHAB, Y.S.1, Y.S.2, Y.S.3. (Price, Matthew) (Entered: 09/11/2017)
42 NOTICE of Voluntary Dismissal re Afshin Asadi Sorkhab, Neda Heidari Dehkordi, YS1, YS2, and YS3 (Price, Matthew) (Entered: 09/14/2017)
43 MOTION for Emergency Status Conference by HAMED SUFYAN OTHMAN ALMAQRAMI, M.K. (Attachments: # 1 Proposed Order)(Price, Matthew) (Entered: 09/15/2017)
MINUTE ORDER: Upon consideration of the plaintiff's 43 Motion for an Emergency Status Conference; it is hereby ordered that the motion is GRANTED. Status Hearing set for Tuesday, September 19, 2017 at 9:30 a.m. before Judge Tanya S. Chutkan in Courtroom 2. SO ORDERED - by Judge Tanya S. Chutkan on 09/18/17. (tb) (Entered: 09/18/2017)
Set/Reset Hearings: Status Conference set for 9/19/2017 at 09:30 AM in Courtroom 2 before Judge Tanya S. Chutkan. (tb) (Entered: 09/18/2017)
Minute Entry: Status Conference held on 9/19/2017 before Judge Tanya S. Chutkan: PI Motion still taken under advisement. (Court Reporter Bryan Wayne.) (tb) (Entered: 09/20/2017)
44 MOTION for Leave to File First Amended Petition for Mandamus and First Amended Complaint for Injunctive and Declaratory Relief by HAMED SUFYAN OTHMAN ALMAQRAMI, ALIAKBAR NOWZARI GOLSEFID, MASOUMEH FOTOHI, BEHNAM NOZARI GOLSEFID, FARZAD ABDOLLAHI ZADEH, ZHREH BABADI, SZ, RZ, AIMAN ALSAKKAF (Attachments: # 1 First Amended Petition for Mandamus and First Amended Complaint for Injunctive and Declaratory Relief, # 2 First Amended Petition for Mandamus and First Amended Complaint for Injunctive and Declaratory Relief (redline), # 3 Proposed Order)(Price, Matthew) (Entered: 09/21/2017)
45 STATUS REPORT by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Price, Matthew) (Entered: 09/21/2017)

09/22/2017 09/22/2017
09/23/2017 09/27/2017 09/29/2017 09/29/2017
09/29/2017 10/05/2017 10/06/2017

MINUTE ORDER granting 44 Plaintiffs' Motion for Leave to File First Amended Petition and Complaint. Signed by Judge Tanya S. Chutkan on 9/22/2017. (lctsc2). Modified on 9/22/2017 (tb). (Entered: 09/22/2017)
46 First Amended PETITION for Writ of Mandamus and First Amended Complaint filed by HAMED SUFYAN OTHMAN ALMAQRAMI, SZ, ZHREH BABADI, MASOUMEH FOTOHI, BEHNAM NOZARI GOLSEFID, RZ, ALIAKBAR NOWZARI GOLSEFID, AIMAN ALSAKKAF, FARZAD ABDOLLAHI ZADEH.(td) Modified on 10/6/2017 (DJS). (Entered: 09/22/2017)
47 RESPONSE re 45 Status Report, filed by JOHN DOES, REX W. TILLERSON. (Attachments: # 1 Declaration of Chloe Dybdahl, # 2 Declaration of Charles Oppenheim, # 3 Exhibit 1)(Press, Joshua) (Entered: 09/23/2017)
48 STATUS REPORT by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. (Price, Matthew) (Entered: 09/27/2017)
49 MEMORANDUM AND OPINION: Regarding Plaintiffs 2 Motion for Preliminary Injunction and Emergency Motion for Mandamus Relief. Signed by Judge Tanya S. Chutkan on 9/29/2017. (lctsc2). (Entered: 09/29/2017)
50 ORDER granting in part and denying in part 2 Plaintiffs' Motion for Preliminary Injunction and Emergency Motion for Mandamus Relief. Defendants are ordered to: (1) report, by October 15, the number of visa numbers returned unused for fiscal year 2017; and (2) hold those visa numbers to process Plaintiffs' visa applications in the event the Supreme Court finds the Executive Order to be unlawful. Signed by Judge Tanya S. Chutkan on 9/29/2017. (lctsc2). (Entered: 09/29/2017)
Set/Reset Deadlines: Defendants to report, by 10/15/2017, the number of visa numbers returned unused for fiscal year 2017. (kt) (Entered: 09/29/2017)
51 MOTION for Extension of Time to Answer or Otherwise Respond by JOHN DOES, REX W. TILLERSON (Attachments: # 1 Text of Proposed Order)(Press, Joshua) (Entered: 10/05/2017)
MINUTE ORDER: Granting 51 Motion for Extension of Time to File Response to Amended Complaint 46 . Defendants shall answer

10/06/2017 10/15/2017 10/20/2017 11/03/2017
11/03/2017 11/13/2017 12/04/2017
12/04/2017

or otherwise respond to the complaint by October 20, 2017. Signed by Judge Tanya S. Chutkan on 10/6/17. (DJS) (Entered: 10/06/2017)
Set/Reset Deadlines: Answer due by 10/20/2017. (tb) (Entered: 10/06/2017)
52 STATUS REPORT by JOHN DOES, REX W. TILLERSON. (Attachments: # 1 Declaration of Chloe Dybdahl)(Press, Joshua) (Entered: 10/15/2017)
53 MOTION to Dismiss by JOHN DOES, REX W. TILLERSON (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Press, Joshua) (Entered: 10/20/2017)
54 Memorandum in opposition to re 53 MOTION to Dismiss filed by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. (Price, Matthew) (Entered: 11/03/2017)
55 RESPONSE re 52 Status Report filed by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. (Price, Matthew) (Entered: 11/03/2017)
56 REPLY to opposition to motion re 53 MOTION to Dismiss filed by JOHN DOES, REX W. TILLERSON. (Press, Joshua) (Entered: 11/13/2017)
57 MOTION for Hearing Oral Argument and Status Update by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ (Attachments: # 1 Proposed Order)(Price, Matthew) Modified event title on 12/5/2017 (znmw). (Entered: 12/04/2017)
58 STATUS REPORT by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. (See Docket Entry 57 to view document). (znmw) (Entered: 12/05/2017)

12/05/2017 12/05/2017 12/12/2017 12/21/2017
01/05/2018 01/12/2018 02/19/2018 02/23/2018 02/26/2018

MINUTE ORDER granting 57 Motion to Schedule Oral Argument. A hearing is hereby set for December 21, 2017 at 10:30 a.m. in Courtroom 9. Signed by Judge Tanya S. Chutkan on 12/5/2017. (lctsc2). (Entered: 12/05/2017)
Set/Reset Hearings: Motion Hearing set for 12/21/2017 at 10:30 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 12/05/2017)
59 RESPONSE re 58 Status Report filed by JOHN DOES, REX W. TILLERSON. (Attachments: # 1 Exhibit A - Immigrant Number Use for Visa Issuances and Adjustments of Status in the Diversity Immigrant Category, Fiscal Years 2008-2017)(Platt, Steven) (Entered: 12/12/2017)
Minute Entry: Motion Hearing held on 12/21/2017 before Judge Tanya S. Chutkan : re 53 MOTION to Dismiss filed by REX W. TILLERSON and JOHN DOES; motion heard and taken under advisement. It is hereby ordered that the government's response to the motion for class certification is not due until the ruling on the motion to dismiss. (Court Reporter Bryan Wayne) (tb) (Entered: 12/21/2017)
60 STATUS REPORT by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. (Price, Matthew) (Entered: 01/05/2018)
61 RESPONSE re 60 Status Report filed by JOHN DOES, REX W. TILLERSON. (Press, Joshua) (Entered: 01/12/2018)
62 STATUS REPORT by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. (Price, Matthew) (Entered: 02/19/2018)
63 NOTICE of Change of Address by Esther H. Sung (Sung, Esther) (Entered: 02/23/2018)
64 RESPONSE re 62 Status Report filed by JOHN DOES, REX W. TILLERSON. (Attachments: # 1 Exhibit 1)(Press, Joshua) (Entered: 02/26/2018)

03/27/2018 03/27/2018 05/24/2018
05/25/2018 05/30/2018
06/26/2018

65 MEMORANDUM AND OPINION re Defendants' Motion to Dismiss 53 . Signed by Judge Tanya S. Chutkan on 3/27/18. (DJS) (Entered: 03/27/2018)
66 ORDER: Granting 53 Defendants' Motion to Dismiss and dismissing action with prejudice. Signed by Judge Tanya S. Chutkan on 3/27/18. (DJS) (Entered: 03/27/2018)
67 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 66 Order on Motion to Dismiss by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. Filing fee $ 505, receipt number 00905500247. Fee Status: Fee Paid. Parties have been notified. (Price, Matthew) (Entered: 05/24/2018)
68 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date 5/24/18 re 67
Notice of Appeal to DC Circuit Court,. (ztd) (Entered: 05/25/2018)
USCA Case Number 18-5156 for 67 Notice of Appeal to DC Circuit Court, filed by FARZAD ABDOLLAHI ZADEH, RZ, BEHNAM NOZARI GOLSEFID, SZ, MASOUMEH FOTOHI, ZHREH BABADI, AIMAN ALSAKKAF, ALIAKBAR NOWZARI GOLSEFID, HAMED SUFYAN OTHMAN ALMAQRAMI. (zrdj) (Entered: 05/30/2018)
69 TRANSCRIPT OF 9/9/17 STATUS HEARING before Judge Tanya S. Chutkan, held on September 9, 2017. Page Numbers: 131. Date of Issuance: June 26, 2018. Court Reporter: Bryan A. Wayne Transcripts may be ordered at www.dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days.

06/26/2018
09/10/2019 09/17/2019 09/22/2019

The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 7/17/2018. Redacted Transcript Deadline set for 7/27/2018. Release of Transcript Restriction set for 9/24/2018.(Wayne, Bryan) (Entered: 06/26/2018)

70 TRANSCRIPT OF MOTION HEARING before Judge Tanya S. Chutkan, held on December 21, 2017. Page Numbers: 1-30. Date of Issuance: June 26, 2018. Court Reporter: Bryan A. Wayne. Transcripts may be ordered at www.dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 7/17/2018. Redacted Transcript Deadline set for 7/27/2018. Release of Transcript Restriction set for 9/24/2018.(Wayne, Bryan) (Entered: 06/26/2018)

71 MOTION to Withdraw as Attorney by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, NEDA HEIDARI DEHKORDI, MASOUMEH FOTOHI, RADAD FAUIZ FUROOZ, M.K., M.K.1, M.K.2, N.H., ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, P.K., RZ, AFSHAN ASADI SORKHAB,

SZ, Y.S.1, Y.S.2, Y.S.3 (Attachments: # 1 Order)(Cox, Justin) (Entered: 09/10/2019)

Text of Proposed

72 MOTION to Withdraw as Attorney Esther H. Sung by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ (Attachments: # 1 Text of Proposed Order)(Sung, Esther) (Entered: 09/17/2019)

MINUTE ORDER granting 71 72 Motions to Withdraw as Attorney. Justin B. Cox and Esther H. Sung terminated. Signed by

10/03/2019
10/08/2019 11/27/2019
01/14/2020 01/21/2020
01/21/2020 01/22/2020

Judge Tanya S. Chutkan on 9/22/19. (DJS) Modified event title on 9/23/2019 (znmw). (Entered: 09/22/2019)
73 NOTICE OF WITHDRAWAL OF APPEARANCE as to FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. Attorney Max J. Minzner terminated. (Price, Matthew) (Entered: 10/03/2019)
74 NOTICE of Appearance by Max S. Wolson on behalf of All Plaintiffs (Wolson, Max) (Entered: 10/08/2019)
75 MANDATE of USCA as to 67 Notice of Appeal to DC Circuit Court, filed by FARZAD ABDOLLAHI ZADEH, RZ, BEHNAM NOZARI GOLSEFID, SZ, MASOUMEH FOTOHI, ZHREH BABADI, AIMAN ALSAKKAF, ALIAKBAR NOWZARI GOLSEFID, HAMED SUFYAN OTHMAN ALMAQRAMI ; USCA Case Number 18-5156. (Attachments: # 1 USCA Judgment)(zrdj) (Entered: 12/04/2019)
Set/Reset Hearings: Status Conference set for 1/28/2020 at 11:15 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 01/14/2020)
MINUTE ORDER: The parties shall file a joint status report by January 24, 2020 at 5PM. The status report shall describe the issues that the parties believe to be pending before the court as well as any other issues that the parties intend to raise at the January 28 Status Conference. The report shall be accompanied by a proposed order for moving forward with this case. Signed by Judge Tanya S. Chutkan on 01/21/2020. (lcdl) (Entered: 01/21/2020)
Set/Reset Deadlines: Joint Status Report due no later than 5:00PM on 1/24/2020. (mac) (Entered: 01/21/2020)
76 NOTICE of Appearance by Noah Bokat-Lindell on behalf of FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ (Bokat-Lindell, Noah) (Entered: 01/22/2020)

01/24/2020 01/27/2020
01/29/2020 03/11/2020 03/12/2020 03/17/2020 03/19/2020 03/21/2020

77 Joint STATUS REPORT by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. (Attachments: # 1 Proposed Scheduling Order)(Price, Matthew) (Entered: 01/24/2020)
MINUTE ORDER: Upon consideration of the parties' 77 Joint Status Report, the January 28, 2020 Status Conference is hereby VACATED. Further, it is hereby ORDERED that Defendants shall file any renewed motion to dismiss by March 16, 2020 at 5PM. Plaintiffs shall file any opposition to Defendants' renewed motion to dismiss by May 1, 2020 at 5PM; or, alternatively, Plaintiffs shall file a further amended complaint by April 6, 2020 at 5PM. Defendants shall file any reply in support of their renewed motion to dismiss by May 15, 2020 at 5PM. Signed by Judge Tanya S. Chutkan on 1/27/2020. (lcdl) (Entered: 01/27/2020)
Set/Reset Deadlines: Amended Pleading due by 5:00 p.m. on 4/6/2020. Dispositive motion due by 5:00 p.m. on 3/16/2020. Response to dispositive motions due by 5:00 p.m. on 5/1/2020. Reply to dispositive motion due by 5/15/2020. (tb) (Entered: 01/29/2020)
78 Unopposed MOTION for Extension of Time to Move to Dismiss by JOHN DOES, REX W. TILLERSON (Attachments: # 1 Text of Proposed Order)(Press, Joshua) (Entered: 03/12/2020)
MINUTE ORDER: Granting 78 Defendants' Unopposed Motion for Extension of Deadlines. Defendants' Motion to Dismiss due March 23, 2020. Plaintiffs' Opposition due May 8, 2020. Defendant's Reply due May 22, 2020. Signed by Judge Tanya S. Chutkan on 3/12/2020. (DJS) (Entered: 03/12/2020)
Set/Reset Deadlines: Dispositive Motion due by 3/23/2020. Response to Dispositive Motion due by 5/8/2020. Reply to Dispositive Motion due by 5/22/2020. (tb) (Entered: 03/17/2020)
79 Unopposed MOTION for Extension of Time to File Motion to Dismiss by JOHN DOES, REX W. TILLERSON (Attachments: # 1 Text of Proposed Order)(Press, Joshua) (Entered: 03/19/2020)
MINUTE ORDER: Granting 79 Consent Motion to Extend Deadlines. Defendants' Motion to Dismiss due April 6, 2020. Plaintiffs' Opposition due May 22, 2020. Defendants' Reply due

03/23/2020 04/03/2020 04/07/2020 04/07/2020 04/13/2020 05/18/2020
05/19/2020
05/19/2020

June 5, 2020. Signed by Judge Tanya S. Chutkan on 3/21/2020. (DJS) (Entered: 03/21/2020)
Set/Reset Deadlines: Dispositive Motion due by 4/6/2020. Response to Dispositive Motion due by 5/22/2020. Reply to Dispositive Motion due by 6/5/2020. (tb) (Entered: 03/23/2020)
80 Unopposed MOTION for Extension of Time to File by JOHN DOES, REX W. TILLERSON (Attachments: # 1 Text of Proposed Order)(Press, Joshua) (Entered: 04/03/2020)
MINUTE ORDER: Granting 80 Defendant's Unopposed Motion for Extension of Deadlines. Defendants' Motion to Dismiss due April 13, 2020. Plaintiffs' Opposition due May 29, 2020. Defendants' Reply due June 12, 2020. Signed by Judge Tanya S. Chutkan on 4/7/20. (DJS) (Entered: 04/07/2020)
Set/Reset Deadlines: Dispositive Motion due by 4/13/2020. Response to Dispositive Motion due by 5/29/2020. Reply to Dispositive Motion due by 6/12/2020. (tb) (Entered: 04/07/2020)
81 MOTION to Dismiss by JOHN DOES, REX W. TILLERSON (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Press, Joshua) (Entered: 04/13/2020)
82 Unopposed MOTION for Extension of Time to File Response/Reply as to 81 MOTION to Dismiss by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ (Attachments: # 1 Proposed Order)(Price, Matthew) (Entered: 05/18/2020)
MINUTE ORDER: Granting 82 Unopposed Motion for Extension of Deadlines. Plaintiffs shall file any opposition to Defendants' renewed motion to dismiss by not later than June 19, 2020. Defendants shall file any reply in support of their renewed motion to dismiss by not later than July 6, 2020. Signed by Judge Tanya S. Chutkan on 5/19/2020. (DJS) (Entered: 05/19/2020)
Set/Reset Deadlines: Response to Dispositive Motion due by 6/19/2020. Reply to Dispositive Motion due by 7/6/2020. (tb) (Entered: 05/19/2020)

06/19/2020
07/02/2020 07/06/2020 07/06/2020 07/08/2020 09/16/2020
10/02/2020 01/27/2021 01/28/2021

83 Memorandum in opposition to re 81 MOTION to Dismiss filed by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ. (Attachments: # 1 Proposed Order)(Price, Matthew) (Entered: 06/19/2020)
84 Unopposed MOTION for Extension of Time to File Response/Reply as to 81 MOTION to Dismiss by JOHN DOES, MICHAEL R. POMPEO, REX W. TILLERSON (Attachments: # 1 Text of Proposed Order)(Press, Joshua) (Entered: 07/02/2020)
MINUTE ORDER: Granting Unopposed 84 Motion for Extension of Deadlines. The Defendants' Reply in support of their Motion to Dismiss is due July 8, 2020. Signed by Judge Tanya S. Chutkan on 7/6/2020. (DJS) (Entered: 07/06/2020)
Set/Reset Deadlines: Reply due by 7/8/2020. (tb) (Entered: 07/06/2020)
85 REPLY to opposition to motion re 81 MOTION to Dismiss filed by JOHN DOES, MICHAEL R. POMPEO, REX W. TILLERSON. (Press, Joshua) (Entered: 07/08/2020)
86 NOTICE OF SUPPLEMENTAL AUTHORITY by FARZAD ABDOLLAHI ZADEH, HAMED SUFYAN OTHMAN ALMAQRAMI, AIMAN ALSAKKAF, ZHREH BABADI, MASOUMEH FOTOHI, ALIAKBAR NOWZARI GOLSEFID, BEHNAM NOZARI GOLSEFID, RZ, SZ (Price, Matthew) (Entered: 09/16/2020)
87 RESPONSE re 86 NOTICE OF SUPPLEMENTAL AUTHORITY filed by JOHN DOES, REX W. TILLERSON. (Press, Joshua) (Entered: 10/02/2020)
88 Unopposed MOTION to Hold in Abeyance and Notice by JOHN DOES, MICHAEL R. POMPEO, REX W. TILLERSON. (Press, Joshua) (Entered: 01/27/2021)
MINUTE ORDER: Granting Defendants' Unopposed Motion 88
to Hold Case in Abeyance. This action is hereby held in abeyance until further order of the court. By 4/27/21 and every 30 days thereafter the parties shall file a joint status report. Defendant's

02/01/2021 04/27/2021 05/27/2021 06/28/2021

Motion to Dismiss 81 is hereby denied without prejudice to the right of the defendant to seek permission to renew the motion should attempts to resolve this matter prove unfruitful. The parties are hereby reminded that Local Civil Rule 7(c), requires that "[e]ach motion... shall be accompanied by a proposed order." Signed by Judge Tanya S. Chutkan on 1/28/21. (DJS) (Entered: 01/28/2021)
Set/Reset Deadlines: Joint Status Report due by 4/27/2021. (tb) (Entered: 02/01/2021)
89 Joint STATUS REPORT by JOHN DOES, MICHAEL R. POMPEO. (Press, Joshua) (Entered: 04/27/2021)
90 Joint STATUS REPORT by JOHN DOES, MICHAEL R. POMPEO. (Press, Joshua) (Entered: 05/27/2021)
91 Joint STATUS REPORT by JOHN DOES, MICHAEL R. POMPEO. (Press, Joshua) (Entered: 06/28/2021)

PACER Service Center Transaction Receipt

07/16/2021 16:51:17

PACER Login:

CRClearinghouse Client Code:

Description:

Docket Report

Search Criteria:

Billable Pages: 27

Cost:

Woo Kee
1:17-cv-01533TSC 2.70

 
 Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.K.,N.H., M.K.1,M.K.2,

)

)

AFSHAN ASADI SORKHAB, NEDA )

HEIDARIDEHKORDI, Y.S.l, Y.S.2,

)

Y.S.3,

)

No. 2285-13th Block-Aps.Manazel )

Shahrak Naft

)

Ahvaz, Khuzestan

)

Iran

)

)

HAMED SUFYAN OTHMAN

)

ALMAQRAMI,

)

414, MuthiaNagar,

)

Annamalainagar, C.Kothangudi Post, )

Chidambaram Taluk.

)

Cuddalore District,

)

Chennai State, India.

)

)

RADAD FAUIZ FUROOZ,

)

HYVE Soho Suites

)

Jalan Impact, Cyber 6

)

63000 Cyberjaya, Selangor

)

Malaysia,

)

)

on behalf

)

of themselves and all others

)

similarly situated.

)

)

Plaintiffs/Petitioners,

)

)

V.

)

)

REX W. TILLERSON, in his official

)

capacity as Secretary of State,

)

JOHN DOES #l-#50, in their official

)

capacity as the eonsular officials

)

responsible for issuing diversity visas,

)

U.S. Department of State

)

2201 C St. NW

)

Washington, DC 20520

)

)

Defendants/Respondents. )

)

No.
PETITION FOR MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 2 of 20

PETITION FOR MANDAMUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Samer E. Khalaf Abed A. Ayoub Yolanda Rondon American-Arab Anti-Discrimination Committee 1705 DeSales Street, N.W., Suite 500 Washington, D.C. 20036 Tel: 202-244-2990 Skhalaf@ade.org

Matthew E. Price (DC Bar #996158) Max J. Minzner (pro hac vice pending) Jenner & Block LLP 1099 New York Ave. NW Suite 900 Washington, DC 20001 Tel. 202-639-6000 Fax: 202-639-6066 Email: mprice@jenner.com
mminzner@j enner.com

Karen C. Tumlin Esther Sung National Immigration Law Center 3435 Wilshire Blvd, Suite 1600 Los Angeles, CA 90010 (213) 639-3900 tumlin@nilc.org sung@nilc.org

Omar C. Jadwat American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 ojadwat@aclu.org

Justin B. Cox National Immigration Law Center PO Box 170208 Atlanta, GA 30317 (678) 279-5441 cox@nilc.org
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union OF THE District of Columbia 4301 Connecticut Avenue, NW, Suite 434 Washington, DC 20008 202-457-0800 aspitzer@acludc.org

Cody H. Wofsy Spencer E. Amdur American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 cwofsy@aclu.org samdur@aclu.org

Counselfor Plaintiffs

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 3 of 20
INTRODUCTION 1. This lawsuit challenges the State Department’s adoption of a policy refusing immigrant visas to eertain individuals who had been seleeted to apply for immigrant visas in the fiscal year 2017 (“FY2017”) diversity visa lottery. It also requests a writ of mandamus to require eonsular officials to fulfill their non-diseretionary duty to adjudicate visa applieations and issue immigrant visas to those eligible individuals. For the affected lottery winners, the stakes are high and the situation is urgent: By statute, lottery winners must have their visas in hand by September 30, 2017 or they lose their chanee to become Americans. 2. The diversity visa program awards immigrant visas to nationals of countries that historically have sent low numbers of immigrants to the United States. That includes nationals of Iran, Syria, Sudan, Yemen, Somalia, and Libya, among dozens of other countries. Each year. a certain number of individuals from these countries are randomly selected to apply for diversity immigrant visas. Under the governing statutes and regulations, eonsular offieials must issue those visas if the seleeted winners are statutorily eligible, are not inadmissible under 8 U.S.C. §1182(a), and visas remain available for that partieular fiseal year. However, the immigrant visas must be issued by no later than September 30, which is the end of the fiscal year, or the winners lose their slots. The diversity visa program for each fiscal year terminates at the end of the fiscal year, and new lottery winners are chosen for the next fiscal year. 3. An immigrant visa ean be used to enter the United States as a lawful permanent resident (or “green card” holder) for up to six months after its issuanee. But, like all visas. diversity visas are conditional and do not guarantee a right to enter: All visa holders must first be inspeeted and admitted at a port of entry.
1

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 4 of 20
4. On March 6, 2017, President Trump issued an Exeeutive Order banning Iranian, Syrian, Sudanese, Yemeni, Somali, and Libyan nationals from entering the United States, for 90 days after the relevant part of the Order went into effect in late June 2017. The Executive Order purportedly was issued under the authority of 8 U.S.C. § 1182(f), which provides the President the authority to “suspend the entry of’ or “impose [restrictions] on the entry of’ aliens under certain circumstances.
5. This case does not ehallenge the President’s power to issue the Executive Order. However, under the governing statutes, visa issuance and entry are distinct. Visa issuance and entry are handled by different executive agencies and components, and occur at different times. The Order did not expressly prohibit visa issuance.
6. Nevertheless, the State Department has adopted a policy directing consular officials to deny diversity visas to nationals from the countries barred from entry by the Executive Order. That policy violates statutes and regulations requiring the issuance of immigrant visas to diversity visa lottery winners who are statutorily eligible, and it incorrectly conflates the Executive Order’s ban on entry with a ban on visa issuance.
7. The consequenees for Plaintiffs and others who are similarly situated is draconian and grossly unfair. Wirming the diversity lottery spot is rare and precious: For the diversity visas to be issued in the current fiscal year, more than 19.3 million individuals and their immediate family members entered the lottery, from which fewer than 84,000 were chosen for the opportunity to apply for one of 50,000 visas.^ The entry prohibition in the Executive Order
1 U.S. Dep’t of State, Visa Bulletin for July 2016 (June 8, 2016), https://travel.state.eov/content/visas/en/law-and-policv/bulletin/2Q16/visa-bultetin-for-iuly2016.html (lasted visited July 29, 2017). As the Department of State explains, more than 50,000 applicants are selected because some lottery winners cannot or do not pursue their cases to visa issuance. See id.
2

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 5 of 20
expires of its own force just days before the September 30 deadline for Plaintiffs to receive their immigrant visas. But at that point, Plaintiffs and others similarly situated will either already have been refused their visas under the State Department’s policy, or, if not yet refused, their visas will likely be effectively denied, as there is little chance the government would process thousands of applications in the few days that would remain before the deadline. Their golden ticket will vanish overnight.
8. The Executive Order does not (and could not) require that senseless result. The Order does not instruct the State Department to deny diversity immigrant visas, nor does it explain why denying diversity immigrant visas is necessary, or even helpful, to effectuate a temporary entry ban.
9. Although other cases are currently pending that challenge the Executive Order’s suspension of entry. Plaintiffs do not challenge that suspension of entry here. Instead, Plaintiffs are simply asking that their visa applications be processed consistent with the statute and regulations, so that they can, if eligible, be issued visas before the September 30 deadline. If Plaintiffs’ claim is successful, and some or all Plaintiffs receive the visas to which they are entitled while the Order’s entry ban is in effect. Plaintiffs do not seek an order permitting them to immediately enter the United States or striking down the Executive Order. Instead, they would simply wait until the suspension on entry expired and would then seek entry.
10. The State Department’s policy imposes irreparable harm on Plaintiffs in violation of consular officials’ non-discretionary duty to issue visas to eligible applicants, without any justification.
3

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 6 of 20
PARTIES 11. Plaintiff P.K. is an Iranian national who was selected as a diversity lottery winner on May 3, 2016. P.K. has a bachelor’s degree in mechanical engineering and has worked as an engineer for 18 years. 12. PlaintiffN.H. is the wife of P.K. 13. Plaintiffs M.K.l and M.K.2, by and through their guardian and father P.K., are the minor children of P.K. and N.H. 14. Plaintiff Afshin Asadi Sorkhab is an Iranian national who was selected as a diversity lottery winner on May 3, 2016. Mr. Sorkhab has a bachelor’s degree in chemical engineering and has worked as an engineer for 19 years. 15. Plaintiff Neda Heidari Dehkordi is the wife of Afshin Asadi Sorkhab. 16. Plaintiffs Y.S.l, Y.S.2, and Y.S.3, by and through their guardian and father Afshin Asadi Sorkhab, are the minor children of Afshin Asadi Sorkhab and Neda Heidari Dehkordi. 17. Plaintiff Hamed Sufyan Othman Almaqrami is a Yemeni national who was selected as a diversity lottery winner on May 3, 2016. Mr. Almaqrami has a master’s degree in linguistics and is currently a Ph.D. student in linguistics at Annamalai University in India. 18. Plaintiff Radad Fauiz Furooz is a Yemeni national who was selected as a diversity lottery winner on May 4, 2016. Mr. Furooz has graduated high school and is currently studying educational technology at Ibb University in Yemen. 19. Defendant Rex W. Tillerson is Secretary of State. He is sued in his official capacity.
4

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 7 of 20
20. Defendants John Does #1-50 are the consular officials employed by the U.S. Department of State who are responsible for issuing or refusing to issue diversity visas. Their identities are not publicly disclosed by the U.S. Department of State. They are sued in their official capacity.
JURISDICTION AND VENUE 21. This Court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1361. The Court has remedial authority pursuant to 28 U.S.C. § 1361, 28 U.S.C. § 2201, and 5 U.S.C. § 702. 22. Venue is proper pursuant to 28 U.S.C. § 1391(e)(1)(A) because Defendant Tillerson, in his official capacity as Secretary of State, resides in this District, and pursuant to 28 U.S.C. § 1391(e)(1)(B) because a substantial part of the events or omissions giving rise to the claim occurred in this District, namely, the formulation and promulgation of the policy under challenge.
FACTUAL ALLEGATIONS A. The Diversity Visa Program.
23. Congress adopted the diversity visa program, 8 U.S.C. § 1153(c), in order to provide immigration opportunities for people who live in countries vdth historically low rates of immigration to the United States. To be eligible for a diversity visa, an applicant must be a national of a country covered by the program, must have either a high school education or two years of qualifying work experience, see 8 U.S.C. § 1153(c)(2), and must not be inadmissible under 8 U.S.C. § 1182(a). Spouses and unmarried minor children of the applicant are entitled to the same status as the applicant. 8 U.S.C. § 1153(d). The diversity visa program is one of the
5

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 8 of 20
few ways in which individuals who do not have family members in the United States nevertheless can immigrate.
24. For each fiscal year, the State Department conducts a lottery to award no more than 50,000 diversity visas from among the many millions of lottery entries it receives. The State Department then processes the winners’ applications for immigrant visas. The process requires the winners to submit certain documents and attend a consular interview. If a lottery winner satisfies the eligibility criteria and is not inadmissible under 8 U.S.C. § 1182(a), and if visas remain available, then consular officials must issue an immigrant visa. See 8 U.S.C. § 1153(c)(1) (making the issuance of diversity visas mandatory for eligible qualified immigrants); 22 C.F.R § 40.6 (visas may only be refused on “a ground specifically set out in the law or implementing regulations”); 22 C.F.R. § 42.81(a) (consular official must either issue the visa or refuse it under 8 U.S.C. § 1182(a), which concerns grounds of inadmissibility, or 8 U.S.C. § 1201(g), which concerns eligibility).
25. If a lottery winner does not receive his or her visa by the end of the fiscal year (September 30), the winner loses his or her slot and must reenter the lottery.^ 8 U.S.C. § 1154(a)(l)(I)(ii)(II).
26. Once issued, an immigrant visa can be used to enter the United States as a lawful permanent resident for up to six months after issuance, 8 U.S.C. § 1201(c)(1), but the visa does not by itself guarantee entry. See 8 U.S.C. § 1201(h).
^ There is a limited exception where the government fails to comply with a court order to process visa applications before the deadline.
6

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 9 of 20
B. The Executive Order. 27. On March 6, 2017, President Trump issued an Executive Order purporting to
suspend, for 90 days from the effeetive date, the entry into the United States of certain nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. See Exee. Order No. 13780, 82 Fed. Reg. 13209 (2017) (“Exeeutive Order”). President Trump claimed statutory authority to do so pursuant to 8 U.S.C. §§ 1182(f) and 1185(a).^
28. The Executive Order was almost immediately enjoined in relevant part pending legal challenge. On June 26, 2017, the U.S. Supreme Court partially stayed the preliminary injunctions, allowing the Exeeutive Order to become effeetive, except as to foreign nationals with a “bona fide relationship with a person or entity in the United States.” Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017) (per euriam). Thus, under the terms of the Executive Order and a memorandum subsequently issued by the President, the entry ban on nationals of the six countries without such bona fide relationships will remain in effeet for 90 days, until September 24, 2017. See White House, Press Release, Presidential Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Seeurity, and the Director of National Intelligence (June 14, 2017), https://www.whitehouse.gOv/the-press-office/2017/06/14/presidential-memorandum-seeretarystate-attomey-general-seeretary.
^ Seetion 1182(f) provides: “Whenever 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, he may by proelamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrietions he may deem to be appropriate.” Section 1185(a) likewise speaks to the ability of an alien to “depart from or enter” the United States. Neither addresses visa issuanee.
7

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 10 of 20

Ci The State Department’s Implementation of the Executive Order. 29. Following the Supreme Court’s order allowing the relevant provisions of the
Executive Order to become effective in part, the State Department issued a cable to consular

officials directing that diversity visas should be denied to persons subject to the Executive

Order’s suspension on entry- «ven if the diversity visa applicant is otherwise eligible to receive the visa.
30. Specifically, the cable read as follows (emphasis added):

8. (SBU) For Diversity Visa (DV) applicants already scheduled for interviews falling after the E.O. implementation date of 8:00 p.m. EDT June 29,2017, post should interview the applicants. Posts should interview applicants following these procedures:

a.) Officers shouldfirst determine whether the applicant is eligiblefor the DV, without regard to the E.O. If the applicant is not eligible, the application should be refused according to standard procedures.

b.) If an applicant is found otherwise eligible, the consular officer will

need to determine during the interview whether the applicant is exempt

from the E.O.’s suspension of entry provision (see paragraphs 10-13

[addressing inter alia the Supreme Court’s bona fide relationship

standard]), and if not, whether the applicant qualifies for a waiver

(paragraphs 14 and 15 [addressing a discretionary waiver provision of the

Executive

Order]).

c.) DVapplicants who are not exemptfrom the E.O.’s suspension ofentry provision and who do not qualify for a waiver should be refused 221(g) and the consular officer should request an advisory opinion from VO/L/A following current guidance m 9 FAM 304.3-1.

Based on the Department’s experience with the DV program, we anticipate that very few DV applicants are likely to be exempt from the E.O.’s suspension of entry or to qualify for a waiver. [Consular Affairs] will notify DV applicants from the affected nationalities with scheduled interviews of the additional criteria to allow the potential applicants to determine whether they wish to pursue their application.

8

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 11 of 20
9. (SBU) The Kentucky Consular Center (KCC) will continue to schedule additional DV-2017 appointments for cases in which the principal applicant is from one of these six nationalities. While the Department is mindful of the requirement to issue Diversity Visas prior to the end of the Fiscal Year on September 30, direction and guidance to resume normal processing ofvisasfollowing the 90-day suspension will be sent [in a separate cable]. 31. The State Department’s reference in paragraph 8(c) of the cable to “221(g)” is a reference to 8 U.S.C. § 1201(g), which provides: “No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law, (2) the application fails to comply with the provisions of this chapter, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation imder section 1182 of this title, or any other provision of law.” The State Department’s policy, therefore, is that the Executive Order makes individuals covered by the Order ineligible to receive a diversity visa. 32. The State Department’s policy is illegal, and consular officials’ refusal to issue a visa to otherwise eligible applicants violates their non-discretionary duty. Consular officials may refuse a visa “only upon a ground specifically set out in the law or implementing regulations. 22 C.F.R. § 40.6. However, the Executive Order does not make diversity visa applicants ineligible to receive a visa. Rather, the statutory authority cited by the President in promulgating the Executive Order concerns entry into the United States, not visa issuance. Under the Immigration and Nationality Act, possessing a visa does not automatically entitle one to entry; and conversely, being subject to a temporary suspension of entry does not make one ineligible to receive a visa. Nor is the issuance of a visa during a temporary suspension of entry pointless, as the visa could be used to enter the United States once the temporary suspension on entry is lifted.
9

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 12 of 20
33. The State Department’s policy will have draconian consequences, and impose irreparable harm, on otherwise-eligible diversity visa applicants to whom the Executive Order applies. Although the Executive Order’s six-country suspension of entry will expire on September 24, 2017, it is highly doubtfiil that these individuals will be able to have their visa applications reconsidered, and their visas issued, prior to the end of the fiscal year on September 30, 2017. And if their visas are not issued by September 30, 2017, their slot in the diversity visa program will expire and they will need to reenter the lottery—with a vanishingly small chance of winning a second time. D. Plaintiffs-Petitioners.
34. Plaintiffs are diversity visa lottery winners, and their immediate family members. from countries covered by the Executive Order and subject to its suspension on entry. They have not established any bona fide relationship with any person or entity in the United States that would qualify them for an exception to the Executive Order.
35. P.K., Mr. Sorkhab, Mr. Almaqrami, and Mr. Furooz entered the 2017 diversity visa lottery, and in May 2016, they each received a letter from the United States Department of State stating that they had been randomly selected as part of the diversity visa program.
36. In September 2016, P.K. received another letter from the United States Department of State scheduling him for an interview (which took place at the U.S. Embassy in Armenia) on November 8, 2016. The interview required him to travel with his entire family from Iran to Armenia. At the interview, the consular officer told him that he had a very good case. P.K. does not have family in the United States, nor has he established any relationship with a U.S. entity, that would qualify under the Supreme Court’s “bona fide relationship” standard.
10

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 13 of 20
37. In October 2016, Mr. Sorkhab received another letter from the United States Department of State scheduling him for an interview (which took place at the U.S. Embassy in Abu Dhabi) on December 14, 2016. The interview required him to travel with his entire family from Iran to Abu Dhabi. Mr. Sorkhab and his family returned to the U.S. Embassy in Abu Dhabi for a second interview in June 2017, after his new baby was bom. To the best of his knowledge. he is eligible to receive a visa. Mr. Sorkhab does not have any close relatives who live in the United States, and does not currently have a job offer or other connections to an organization in the United States that would qualify under the Supreme Court’s “bona fide relationship' standard.
38. Mr. Almaqrami had his interview on May 25, 2017. He traveled from India, where he is living for his doctoral studies, to Yemen to retrieve all of the necessary documents. and then came back to India for additional documents. He then went to Malaysia for his interview. He did not understand why he was not issued a visa, until he received a letter from the State Department on July 12, 2017, stating; “a visa applicant from one of the six affected countries who does not have a credible claim of a bona fide relationship with a person (i.e., a close familial relationship) in the United States or of a bona fide relationship with an entity in the United States (which relationship is formal, documented, and formed in the ordinary course, rather than to evade the Executive Order) is ineligible for a visa.” Mr. Almaqrami does not have any family in the United States, nor does he currently have a job offer or other connections to an organization in the United States that would qualify under the Supreme Court’s “bona fide relationship” standard.
39. Mr. Furooz had his interviews on December 15, 2016 and June 21, 2017 in Kuala Lumpur, Malaysia. On July 7, 2017, he received a letter from the U.S. Embassy returning his
11

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 14 of 20
passport without a visa. The letter stated that his case would remain in administrative processing, and that he would be notified when the Embassy could proceed with his case. The reason given was: “due to nationality from one of 6 countries affected by EO13780 sec 2(c).
40. Plaintiffs are statutorily eligible to receive the visa. P.K., for example, has a bachelor’s degree in mechanical engineering and has worked as an engineer for 18 years. Mr. Sorkhab has a bachelor’s degree in chemical engineering and has worked as an engineer for 19 years. Mr. Almaqrami has a master’s degree in linguistics and is currently a Ph.D. student in linguistics at Annamalai University in India. Mr. Furooz has graduated high school and is currently studying educational technology at Ibb University in Yemen. They do not fall within any of the grounds of inadmissibility under 8 U.S.C. § 1182(a). Nor do N.H., P.K.’s spouse; their children M.K.l and M.K.2; Neda Heidari Dehkordi, Mr. Sorkhab’s spouse; or their children Y.S.l, Y.S.2, and Y.S.3. However, the State Department is refusing to issue their visas based on its illegal implementation of the Executive Order. Accordingly, Plaintiffs petition for a writ of mandamus directing consular officials to issue diversity visas to applicants who are statutorily eligible to receive them; for declaratory relief declaring that the State Department’s application of the Executive Order to refuse diversity visas to otherwise-eligible applicants is arbitrary. capricious, an abuse of discretion, and in violation of law; and for injunctive relief enjoining the State Department from refusing a diversity visa based on the Executive Order’s suspension of entry.
CLASS ACTION ALLEGATIONS 41. Plaintiffs reallege the foregoing allegations as if set forth fully herein.
12

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 15 of 20
42. Plaintiffs bring this class action on behalf of themselves and all others similarly situated for the purpose of asserting claims alleged in this Petition and Complaint on a common basis.
43. The proposed class is defined under Rule 23(b)(1)(A), (b)(2), and b)(3) as all persons who: (a) have been selected, or are the spouse or child of someone who has been selected, in the diversity visa lottery for FY2017 and has submitted an application to receive a diversity immigrant visa, but has not yet received the visa; and (b) are subject to the Executive Order and do not qualify for the “bona fide relationship” exception, and therefore are prohibited from entering the United States until the Executive Order expires in late September 2017.
44. There are likely hundreds, and potentially thousands, of members ofthe proposed class. The total number of class members is such that the joinder of claims of all class members would be impracticable.
45. Plaintiffs’ claims are typical of the claims ofthe proposed class, and Plaintiffs will fairly and adequately protect the interests of the proposed class. Plaintiffs have no relevant conflicts of interest with other members of the proposed class and have retained competent and experienced counsel.
46. There are multiple questions of law and fact common to the members of the proposed class. These common questions include, but are not limited to, whether consular officials have a non-discretionary duty to issue immigrant visas to diversity visa applicants who are statutorily eligible to receive them, notwithstanding the Executive Order; and whether the State Department order purporting to direct that such visas be refused is arbitrary, capricious, or otherwise in violation of law.
13

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 16 of 20
47. Individual actions in this case would create a risk of inconsistent adjudications that would result in ineompatible standards of conduct for the government. Some diversity visa plaintiffs might prevail in their ehallenge and eseape the effeet of the policy while other might remain subject to it.
48. The government has ereated a policy that applies to the class as a whole on grounds that apply generally to them, namely their nationality in one of the six identified eountries. As a result, the requested injunctive, declaratory and other relief is appropriate for the class as a whole to eliminate the illegal effects of the poliey.
49. Common questions of law predominate in this case. The legality ofthe poliey is the central issue in this ease and applies identically to all class members. A class action is also superior to any other method for fairly and effieiently adjudicating the controversy. Individual actions by particular members of the class are unlikely to have particular interest in controlling the litigation, this district court is a particularly appropriate forum given the nature of the legal issues and the identity of the parties, and the class action will not be difficult to manage given the limited scope of the issues involved.
CAUSES OF ACTION COUNT ONE (Administrative Procedure Act) 50. Plaintiffs reallege the foregoing allegations as if set forth fiilly herein. 51. The State Department’s policy, directing consular officials to deny diversity immigrant visas to statutorily eligible applieants whose entry to the United States would temporarily be prohibited under the Executive Order, is arbitrary, capricious, an abuse of discretion, or otherwise not in accordanee with law. 5 U.S.C. § 706(2)(A).
14

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 17 of 20
52. The State Department policy is final agency action. It is the consummation of the State Department’s process on this matter. The agency has nothing fiorther to do in order to issue direction to consular officials. Furthermore, rights and obligations have been determined by the policy and legal consequences will flow from it. The agency has denied and will continue to refuse to issue visas as a result of its policy purporting to implement the Executive Order.
53. Under 22 C.F.R. § 40.6, a consular official may refuse a visa “only upon a ground specifically set out in the law or implementing regulations.
54. Under 8 U.S.C. § 1152(a)(1)(A), consular officials are prohibited from discriminating against any individual in the issuance of an immigrant visa because of the person’s nationality, except as expressly authorized by Congress.
55. The Executive Order does not purport to prohibit the issuance of diversity visas that must be issued by September 30. Rather, it imposes a temporary bar on entrance for certain nationals of six countries, which is due to expire in late September 2017.
56. Accordingly, the State Department policy directing consular officials to refuse immigrant visas to individuals who are statutorily eligible to receive a visa, on the ground that they are covered by the Executive Order and so temporarily prohibited from entering the United States, is not authorized by any governing law, and is arbitrary, capricious, an abuse of discretion, and in violation of law.
COUNT TWO IMandamus) 57. Plaintiffs reallege the foregoing allegations as if set forth fully herein. 58. Defendants/Respondents John Does #1-50, who are the unknown consular officials responsible for processing and issuing diversity visas, have a clear and non­ discretionary duty to adjudicate applications and issue visas to individuals who are eligible to
15

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 18 of 20
receive them and who are not inadmissible under 8 U.S.C. § 1182(a), so long as visas remain available.
59. Under 22 C.F.R. § 42.81(a), a “consular officer must either issue or refuse the visa ....” Moreover, “[e]very refusal must be in conformance with the provisions of 22 C.F.R. 40.6.” Id.
60. Under 22 C.F.R. § 40.6, a consular official may refuse a visa “only upon a ground specifically set out in the law or implementing regulations.'
61. Under 8 U.S.C. § 1152(a)(1)(A), consular officials are prohibited from discriminating against any individual in the issuance of an immigrant visa because of the person’s nationality, except as expressly authorized by Congress.
62. The Executive Order does not purport to prohibit the issuance of diversity visas that must be issued by September 30. It simply issues a temporary bar on entrance for certain nationals of six countries, which is due to expire in late September 2017.
63. Consular official Defendants have a mandatory duty to adjudicate diversity immigrant visa applications and issue diversity immigrant visas to statutorily eligible individuals. and there is no legal bar to doing so. Accordingly, Plaintiffs have a clear and indisputable right to relief, and the consular official Defendants have a clear and non-discretionary duty to act.
64. No alternative remedy exists to compel action by the consular official Defendants John Does #1-50.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully prays that this Court: A. Declare that the State Department’s policy of deeming visa applicants from Iran, Syria, Sudan, Somalia, Yemen, and Libya ineligible for a diversity visa on account of the
16

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 19 of 20 Executive Order, even when those applicants are statutorily eligible, is arbitrary, capricious, and otherwise in violation of law;
B. Enjoin the State Department and its employees, officers, and agents from implementing the policy of refusing diversity visas to applicants from Iran, Syria, Sudan, Somalia, Yemen, and Libya, notwithstanding these applicants’ statutory eligibility;
C. Issue a writ of mandamus to Defendants John Does #1-50 directing that these consular officials adjudicate diversity immigrant visa applications and issue diversity immigrant visas to visa applicants from Iran, Syria, Sudan, Somalia, Yemen, and Libya who are statutorily eligible to receive a visa before September 30, 2017; and
D. Award any other reliefthe Court deems just and proper.
17

Case 1:17-cv-01533-TSC Document 1 Filed 08/03/17 Page 20 of 20

July 31, 2017

Respectfully^bmitted,

Samer E. Khalaf (pro hac vice pending) Abed A. Ayoub Yolanda Rondon American-Arab Anti-Discrimination Committee 1705 DeSales Street, N.W., Suite 500 Washington, D.C. 20036 Tel: 202-244-2990 Skhalaf@adc.org

Matthew E. Price (DC Bar #996158) Max J. Minzner (pro hac vice pending) Jenner & Block LLP 1099 New York Ave. NW Suite 900 Washington, DC 20001 Tel. 202-639-6000 Fax: 202-639-6066 Email: mprice@jenner.com
mminzner@j enner.com

Karen C. Tumlin Esther Sung National Immigration Law Center 3435 Wilshire Blvd, Suite 1600 Los Angeles, CA 90010 (213) 639-3900 tumlin@nilc.org sung@nilc.org

Omar C. Jadwat American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 ojadwat@aclu.org

Justin B. Cox National Immigration Law Center PO Box 170208 Atlanta, GA 30317 (678) 279-5441 cox@nilc.org
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union OF THE District of Columbia 4301 Connecticut Avenue, NW, Suite 434 Washington, DC 20008 202-457-0800 aspitzer@acludc.org

Cody H. Wofsy Spencer E. Amdur American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax:(415)395-0950 cwofsy@aclu.org samdur@aclu.org

Counselfor Plaintiffs

18

 
 Case 1:17-cv-01533-TSC Document 2 Filed 08/03/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

)

on behalf of themselves and all others

)

similarly situated,

)

No.

)

Plaintiffs/Petitioners,

)

)

V.

)

)

REX W. TILLERSON, et al.

)

)
Defendants/Respondents. )

)

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND EMERGENCY MOTION FOR MANDAMUS RELIEF
Plaintiffs hereby move this court for a preliminary injunction and for emergency mandamus relief pursuant to Fed. R. Civ. P 65 and LCvR. 65.1(c).
In support of their motion, Plaintiffs rely on the accompanying Memorandum, declarations, and exhibits.
A proposed order is attached. STATEMENT PURSUANT TO LOCAL RULE 7(m)
Pursuant to Local Rule 7(m), Plaintiffs’ counsel unsuccessfully attempted to contact Defendants’ counsel to determine if Defendants would consent to the relief requested in this motion.

1

Case 1:17-cv-01533-TSC Document 2 Filed 08/03/17 Page 2 of 2

July 31, 2017

Respectfully submitted,

Samer E. Khalaf (pro hac vice pending) Abed A. Ayoub Yolanda Rondon American-Arab Anti-Discrimination Committee 1705 DeSales Street, N.W., Suite 500 Washington, D.C. 20036 Tel: 202-244-2990 Skhalaf@adc.org

Matthew E. Price (DC Bar # 996158) Max J. Minzner (pro hac vice pending) Jenner & Block LLP 1099 New York Ave. NW Suite 900 Washington, DC 20001 Tel. 202-639-6000 Fax: 202-639-6066 Email: mprice@jenner.com
mminzner@jenner.com

Karen C. Tumlin Esther Sung National Immigration Law Center 3435 Wilshire Blvd, Suite 1600 Los Angeles, CA 90010 (213) 639-3900 tumlin@nilc.org sung@nilc.org
Justin B. Cox National Immigration Law Center PO Box 170208 Atlanta, GA 30317 (678) 279-5441 cox@nilc.org
Arthur B. Spitzer (D.C. Bar # 235960) Scott Michelman (D.C. Bar # 1006945) American Civil Liberties Union OF THE District of Columbia 4301 Connecticut Avenue, NW, Suite 434 Washington, DC 20008 202-457-0800 aspitzer@acludc. org

Omar C. Jadwat American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 ojadwat@aclu.org
Cody H. Wofsy Spencer E. Amdur American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 cwofsy@aclu.org samdur@aclu.org

Counselfor Plaintiffs

2

 
 Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 1 of 37

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

P.K., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

REX W. TILLERSON, in his official

)

capacity as Secretary of State, et al.,

)

)

Defendants.

)

)

Civil Action No. 1:17-cv-01533-TSC

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION AND MANDAMUS RELIEF

CHAD A. READLER Acting Assistant Attorney General

CATHERINE DORSEY Counsel to the Assistant Attorney General

WILLIAM C. PEACHEY Director

GISELA A. WESTWATER Assistant Director

EREZ REUVENI Senior Litigation Counsel

Dated: August 18, 2017

By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 e-Mail: joshua.press@usdoj.gov
STEVEN A. PLATT Trial Attorney
Attorneys for Defendants

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 2 of 37
TABLE OF CONTENTS INTRODUCTION ........................................................................................................................ 1 STATUTORY AND REGULATORY BACKGROUND ...........................................................2
I. Diversity Visas.....................................................................................................................2 II. The Executive Order And Its Legal Background ................................................................6 III. The State Department’s Implementation of the Executive Order......................................10 FACTUAL BACKGROUND ......................................................................................................11 LEGAL STANDARDS ...............................................................................................................13 I. Preliminary Injunctive Relief.............................................................................................13 II. Review Under The Administrative Procedure Act ............................................................13 III. Review Under The Mandamus Act ...................................................................................14 ARGUMENT ................................................................................................................................14 I. The Plaintiffs Have No Likelihood of Success..................................................................14
A. The Plaintiffs’ Claims Are Precluded By the Supreme Court’s Stay in IRAP….. 15 B. The Doctrine of Consular Non-Reviewability Bars Plaintiffs’ Claims .................17 C. Plaintiffs Fail to Show a Likelihood of Success on the Merits..............................20 II. The Plaintiffs Cannot Demonstrate Any Irreparable Harm ...............................................23 III. Both The Balance Of Hardships And The Public Interest Favor Defendants………….....25 CONCLUSION ............................................................................................................................27
i

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 3 of 37
TABLE OF AUTHORITES CASES
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) ................................................................................................ 12
Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014) .................................................................................................. 22
Ahmed v. DHS, 328 F.3d 383 (7th Cir. 2003)....................................................................................................... 6
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33 (1980) .................................................................................................................... 14
Allina Health Servs. v. Sebelius, 756 F. Supp. 2d 61 (D.D.C. 2010) ............................................................................................ 13
Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001) ................................................................................................ 13
Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) .................................................................................................................. 19
Castaneda-Gonzalez v. INS, 564 F.2d 417 (D.C. Cir. 1977) .................................................................................................. 20
Castillo v. Rice, 581 F. Supp. 2d 468 (S.D.N.Y. 2008) ....................................................................................... 19
Cheney v. United States Dist. Court, 542 U.S. 367 (2004) .................................................................................................................. 13
CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 (D.C. Cir. 1995) .................................................................................................... 23
Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004) .................................................................................................. 12
Coraggioso v. Ashcroft, 355 F.3d 730 (3d Cir. 2004)........................................................................................................ 4
ii

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 4 of 37
Demjanjuk v. Meese, 784 F.2d 1114 (D.C. Cir. 1986) ................................................................................................ 14
Doan v. INS, 160 F.3d 508 (8th Cir. 1998)..................................................................................................... 18
Dorfmann v. Boozer, 414 F.2d 1168 (D.C. Cir. 1968) ................................................................................................ 12
Fiallo v. Bell, 430 U.S. 787 (1977) ............................................................................................................ 17, 18
Fisheries Survival Fund v. Jewell, — F. Supp. 3d —, 2017 WL 629246 (D.D.C. Feb. 15, 2017)................................................................................. 22
Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ............................................................................................................ 17, 18
Hawai‘i v. Trump, 859 F.3d 741 (9th Cir. 2017)..................................................................................................... 15
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ...................................................................................................................... 26
In re Core Commc’ns Inc., 531 F.3d 849 (D.C. Cir. 2008) .................................................................................................. 14
In re Medicare Reimbursement Litig., 414 F.3d 7 (D.C. Cir. 2005) ...................................................................................................... 14
Joseph v. Landon, 679 F.2d 113 (7th Cir. 1982)....................................................................................................... 6
Keli v. Rice, 571 F. Supp. 2d 127 (D.D.C. 2008) ............................................................................................ 4
Kerry v. Din, 135 S. Ct. 2128 (2015) .............................................................................................................. 19
Kleindienst v. Mandel, 408 U.S. 753 (1972) .................................................................................................................. 19
iii

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 5 of 37
Louhghalam v. Trump, 230 F. Supp. 3d 26 (D. Mass. 2017) ......................................................................................... 25
Mogu v. Chertoff, 550 F. Supp. 2d 107 (D.D.C. 2008) ............................................................................................ 4
Mohamed v. Gonzales, 436 F.3d 79 (2d Cir. 2006).......................................................................................................... 4
Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................................................................................................................... 13
Munaf v. Geren, 553 U.S. 674 (2008) .................................................................................................................. 12
Mwasaru v. Napolitano, 619 F.3d 545 (6th Cir. 2010)....................................................................................................... 4
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) .................................................................................................................. 13
New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ................................................................................................................ 25
Newdow v. Bush, 355 F. Supp. 2d 265 (D.D.C. 2005) .......................................................................................... 24
Nishimura Ekiu v. United States, 142 U.S. 651 (1892) .................................................................................................................. 18
Nken v. Holder, 556 U.S. 418 (2009) .................................................................................................................. 25
Nyaga v. Ashcroft, 323 F.3d 906 (11th Cir. 2003)..................................................................................................... 4
Plyler v. Doe, 457 U.S. 202 (1982) .................................................................................................................. 26
Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190 (D.D.C. 2005) .......................................................................................... 24
iv

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 6 of 37
Rahman v. McElroy, 884 F. Supp. 782 (S.D.N.Y. 1995).......................................................................................... 6, 8
Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) .......................................................................................... 18, 19
Saleh v. Holder, 84 F. Supp. 3d 135 (E.D.N.Y. 2014)......................................................................................... 19
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) .................................................................................................................. 17
Smirnov v. Clinton, 806 F. Supp. 2d 1 (D.D.C. 2011) ............................................................................................ 4, 5
Southdown, Inc. v. Moore McCormack Res., Inc., 686 F. Supp. 595 (S.D. Tex. 1988) ........................................................................................... 25
Southwestern Bell Tel. Co. v. FCC, 168 F.3d 1344 (D.C. Cir. 1999) ................................................................................................ 13
Tongatapu Woodcraft Haw. Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)..................................................................................................... 6
Int’l Refugee Assistance Project v. Trump, — F. Supp. 3d —, 2017 WL 1018235 (D. Md. Mar. 16, 2017) .............................................................................. 15
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) .................................................................................................................. 17
Viet. Veterans of Am. v. Shinseki, 599 F.3d 654 (D.C. Cir. 2010) .................................................................................................. 14
Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977) .................................................................................................. 14
Wayte v. United States, 470 U.S. 598 (1985) .................................................................................................................. 26
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .................................................................................................................. 25
v

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 7 of 37
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). ............................................................................................................... 12, 23
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) ................................................................................................................ 1
Wis. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) .................................................................................................. 24 STATUTES
5 U.S.C. § 706(2)(A)..................................................................................................................... 13 5 U.S.C. § 701(a) .......................................................................................................................... 19 8 U.S.C. § 1151(e) ...................................................................................................................... 2, 3 8 U.S.C. § 1153............................................................................................................................... 5 8 U.S.C. § 1153(c) ...................................................................................................................... 3, 5 8 U.S.C. § 1153(e)(2)...................................................................................................................... 3 8 U.S.C. § 1154(a)(1)(I).................................................................................................................. 2 8 U.S.C. § 1181............................................................................................................................... 6 8 U.S.C. § 1182............................................................................................................. 8, 20, 21, 23 8 U.S.C. § 1182(a) ............................................................................................................ 21, 22, 24 8 U.S.C. § 1182(f)......................................................................................................................... 15 8 U.S.C. § 1201(g) ................................................................................................................. passim 8 U.S.C. § 1201(h) ........................................................................................................................ 21 8 U.S.C. § 1361............................................................................................................................. 23 28 U.S.C. § 1361........................................................................................................................... 13
vi

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 8 of 37 REGULATIONS
22 C.F.R. § 42.33(a)(1) ............................................................................................................... 3, 5 22 C.F.R. § 42.33(b)(3)................................................................................................................... 3
vii

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 9 of 37
Defendants, by and through counsel, hereby oppose Plaintiffs’ Request for Preliminary Injunction and Emergency Mandamus Relief (ECF No. 2) (together with the Memorandum in Support thereof (ECF No 2-1), “Plaintiff’s Motion” or “Pls.’ Mot.”).
INTRODUCTION Plaintiffs, aliens abroad who concede that they lack any bona fide relationship with a person or entity in the United States, seek preliminary injunctive relief and a writ of mandamus to compel the State Department to issue diversity visas to them if they are statutorily eligible for such visas, even though Section 2(c) of Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) (hereinafter, “the Executive Order”)—which plaintiffs do not challenge—currently bars them from entering the United States. Plaintiffs’ claims, however, are barred by two threshold considerations: (1) the Supreme Court’s stay in Trump v. Int’l Refugee Assistance Project (“IRAP”), 137 S. Ct. 2080 (2017) (per curiam), and (2) the doctrine of consular non-reviewability. First, the Supreme Court is currently considering the validity of the Executive Order, and in doing so has already determined how it may be implemented pending Supreme Court review: the Court held that the suspension of admissions in Section 2(c) of the Executive Order may be enforced against aliens abroad who seek admission but who lack bona fide relationships to U.S. persons or entities. IRAP, 137 S. Ct. at 2087 (“We grant the Government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement of § 2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”) (emphasis added). This means that Plaintiffs are covered by the Supreme Court’s decision and that Defendants are not required to issue them visas while they are subject to the Executive Order’s suspension of admission. Second, the principle of consular nonreviewability, a fundamental separation-of-powers principle, precludes judicial review of the political branches’ decisions to exclude aliens abroad. That
1

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 10 of 37
principle precludes review of Plaintiffs’ claims. But even if this Court could get past those threshold arguments and were to assess the
merits, Plaintiffs are not entitled to relief because they have failed to show that they have any likelihood of success or irreparable injury. Aliens who are ineligible to enter because they are subject to a suspension of entry under section 1182(f)—including aliens subjection to Section 2(c) of the Executive Order—are statutorily ineligible under 8 U.S.C. § 1201(g) to receive a visa. See 8 U.S.C. §§ 1182(a) (describing classes of aliens who are “ineligible to receive visas” including those designated under 1182(f)); 1201(g) (visas may not issue if the applicant “is ineligible to receive a visa ... under [S]ection 1182”). Refusing to issue diversity visas to aliens who are ineligible to enter the United States, therefore, is neither “arbitrary or capricious” nor a failure to perform a non-discretionary duty.
STATUTORY AND REGULATORY BACKGROUND I. Diversity Visas. Under the Immigration and Nationality Act (“INA”), Congress has granted the State Department the authority to issue a type of immigrant visa known as the diversity visa. See 8 U.S.C. § 1154(a)(1)(I). Congress intended diversity visas to increase the number of immigrants from countries and regions of the world that send relatively few immigrants to the United States. See David Weissbrodt & Laura Danielson, Immigration Law and Practice 160 (6th ed. 2011). The diversity visa statutes authorize the State Department to issue 50,000 diversity visas annually.1
1 The statute makes available up to 55,000 permanent resident visas annually for the diversity visa program, but 5,000 of those visas are reserved for aliens covered by the Nicaraguan Adjustment and Central America Relief Act of 1997. 8 U.S.C. § 1151(e).
2

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 11 of 37
Under the diversity visa program, the State Department must allot diversity visas in accordance with 8 U.S.C. § 1153(c), which establishes distribution parameters by country and world region. The statute requires the State Department to select potential applicants to the diversity visa program at random. 8 U.S.C. § 1153(e)(2) (“Immigrant visa numbers made available under subsection (c) (relating to diversity immigrants) shall be issued to eligible qualified immigrants strictly in a random order established by the Secretary of State for the fiscal year involved.” (emphasis added)). This aspect of randomness has caused the program to be described as a diversity “visa lottery.” See 59 Fed. Reg. at 15303.
The demand for these visas is high. This year, for example, the State Department received about 12.4 million applications for the diversity visa program. DV 2015 – Selected Entrants, U.S. Dep’t of State, https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visabulletin-for-july-2016.html (last visited Aug. 17, 2017). To determine who is eligible to apply, the State Department, consistent with its legal obligation to make a random selection from among the applicants, conducts a drawing to identify the approximately 84,000 selectees. Id. Certain selectees—but not all—may then file applications for diversity visas with the State Department overseas or, if they are already present within the United States, can apply to U.S. Citizenship and Immigration Services (“USCIS”) for adjustment of status to that of a permanent resident. Because many diversity visa selectees do not ultimately apply for a visa or do not establish eligibility for a visa, the State Department selects many more potential visa applicants to the diversity visa program than the number of diversity visas actually available. Id. And since the State Department may issue no more than 50,000 diversity visas for a given fiscal year, 8 U.S.C. § 1151(e), the diversity visas allocated to a particular country or region may become exhausted. Diversity visas for a fiscal year cannot be issued after midnight of September 30 of that year. Id. at
3

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 12 of 37
§ 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(a)(1). Therefore, the State Department encourages selectees to complete the diversity visa application “immediately.” See The Diversity Visa Process, U.S. Dep’t of State, Bureau of Consular Affairs, https://travel.state.gov/content/visas/ en/immigrate/diversity-visa/entry/selection-of-applicants.html (last visited Aug. 17, 2017). Importantly, not every visa application that is timely filed is issued by the end of the fiscal year, and in such circumstances, no visa is available. See, e.g., Nyaga v. Ashcroft, 323 F.3d 906, 914 (11th Cir. 2003) (“[The language in § 1154] plainly means that aliens, like Nyaga, who have been randomly selected to qualify for a visa under the diversity visa program cannot be issued a visa after midnight of the final day of the fiscal year for which they were selected.”); Mwasaru v. Napolitano, 619 F.3d 545, 550–51 (6th Cir. 2010) (same); Mohamed v. Gonzales, 436 F.3d 79, 81 (2d Cir. 2006) (same); Coraggioso v. Ashcroft, 355 F.3d 730, 734 (3d Cir. 2004) (same). “Though unforgiving, this strict interpretation of the diversity visa statute has been adopted by every circuit court to have addressed the issue.” Keli v. Rice, 571 F. Supp. 2d 127, 132 (D.D.C. 2008) (quoting Mogu v. Chertoff, 550 F. Supp. 2d 107, 109 (D.D.C. 2008)); see also Smirnov v. Clinton, 806 F. Supp. 2d 1, 24 (D.D.C. 2011).
Each year, the diversity visa program begins with an entry or registration process, lasting approximately thirty days, during which aliens may submit petitions to a website maintained by the State Department. 22 C.F.R. § 42.33(b)(3); see generally https://travel.state.gov/content/visas/ en/immigrate/diversity-visa/entry/submit-an-entry.html. To be eligible for selection, the alien must complete a diversity visa petition, which includes the selectee’s children or spouses. Id. at § 42.33(b). After the process closes, the State Department sorts the petitions into different world regions and numbers them in a database according to the order in which they are received. See id. at § 42.33(c) (“Entries received during the petition submission period established for the fiscal
4

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 13 of 37
year in question and meeting all of the requirements of paragraph (b) of this section will be assigned a number in a separate numerical sequence established for each regional area specified in [8 U.S.C. § 1153](c)(1)(F).”). Once the petitions are sorted by region and numbered in order of receipt, the State Department conducts a random selection of entrants. Id. The State Department then rank orders the petitions at random. Id. (“Upon completion of the numbering of all petitions, all numbers assigned for each region will be separately rank-ordered at random by a computer using standard computer software for that purpose.”).
The State Department subsequently selects a certain number of petitions from the top of the list for each world region. Id. (“The Department will then select in the rank orders determined by the computer program a quantity of petitions for each region estimated to be sufficient to ensure, to the extent possible, usage of all immigrant visas authorized under [8 U.S.C. § 1153](c) for the fiscal year in question.”). These selected petitions from each world region list constitute the “selectees” of the diversity visa program. Id. Selectees may then apply for one of the 50,000 available diversity visas. See https://travel.state.gov/content/visas/en/immigrate/diversity-visa/ifyou-are-selected.html (“It is important to remember that selection does not guarantee you will receive a visa. In order to receive a diversity visa to immigrate to the United States, selectees must still meet all eligibility requirement under U.S. law.”).
To be eligible for a diversity visa, a selectee must have a high school education, or its equivalent, or two years of qualifying work experience as defined by U.S. law. 22 C.F.R. § 42.33(a)(1). The selectee must prepare supporting documents and, once a visa number is available to the alien’s country and region, make a visa application before a consular officer and be interviewed. Visa interviews will only be scheduled if a visa number for the alien’s country and region is available. See The Diversity Visa Process, U.S. Dep’t of State, Bureau of Consular
5

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 14 of 37
Affairs, https://travel.state.gov/content/visas/en/immigrate/diversity-visa/interview.html (last visited Aug. 17, 2017). Before being interviewed, a diversity visa applicant must complete a medical examination and pay the required fee. At the end of the interview, the applicant will be informed whether the visa is approved or refused. 8 U.S.C. § 1201(g). Some visa applications are refused because the applicant has failed to establish eligibility for a visa, including where they require further administrative processing. See The Diversity Visa Process, U.S. Dep’t of State, Bureau of Consular Affairs, https://travel.state.gov/content/visas/en/immigrate/diversity-visa/ interview/after-the-interview.html (last visited Aug. 17, 2017) (“When administrative processing is required, the timing will vary based on individual circumstances of each case.”). That processing can take a significant amount of time, and there is no guarantee that it will be completed by the end of the fiscal year.
Thus, selectees are not entitled to a diversity visa or even any specific action upon a visa application, but only the opportunity to apply for one. See Ahmed v. DHS, 328 F.3d 383, 384 (7th Cir. 2003) (affirming dismissal of Administrative Procedure Act (“APA”) and mandamus claims because “‘winning’ the lottery meant only winning a chance to secure a visa, and that chance had an expiration date and time” where “bureaucratic delays and difficulties … prevented [plaintiff] from completing her application before that expiration date”); Tongatapu Woodcraft Haw. Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984) (“[A] visa petition is not the same thing as a visa[.]”); Joseph v. Landon, 679 F.2d 113, 115 (7th Cir. 1982) (per curiam); Rahman v. McElroy, 884 F. Supp. 782, 784 (S.D.N.Y. 1995).
II. The Executive Order And Its Legal Background. Under the INA, admission to the United States generally requires a valid immigrant or nonimmigrant visa. See 8 U.S.C. §§ 1181, 1182(a)(7)(A)(i), 1182(a)(7)(B)(i)(II), 1203. The
6

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 15 of 37
process of applying for a visa typically includes an in-person interview and results in a decision by a State Department consular officer. Id. at §§ 1201(a)(1), 1202, 1204. While Congress created various paths for aliens’ admission into the United States, the INA also grants the President broad discretion to restrict or suspend the entry of aliens. Specifically, Section 1182(f) provides:
Whenever 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, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Section 1185(a)(1) similarly grants the President broad authority to adopt “reasonable rules, regulations, and orders” governing entry of aliens, “subject to such limitations and exceptions as [he] may prescribe.” Id. at § 1185(a)(1). On March 6, 2017, the President issued the Executive Order at issue in this case. The Executive Order was adopted in accordance with a recommendation of the Secretary of Homeland Security and the Attorney General, who expressed “particular concerns about our current screening and vetting processes for nationals of certain countries that are either state sponsors of terrorism, or that have active conflict zones in which the central government has lost control of territory to terrorists or terrorist organizations, such as ISIS, core al-Qa’ida, and their regional affiliates.” Letter from Jefferson B. Sessions III, Att’y Gen., & John Francis Kelly, Sec’y of Homeland Sec., to President Donald J. Trump, at 2 (Mar. 6, 2017), https://www.dhs.gov/sites/default/files/ publications/17_0306_S1_DHS-DOJ-POTUS-letter.pdf. Section 2 of the Executive Order directs the Secretary of Homeland Security, in consultation with the Secretary of State and Director of National Intelligence, to conduct a worldwide review of screening and vetting procedures to determine whether and what additional information may be needed from foreign countries to assess whether their nationals seeking entry
7

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 16 of 37
pose a security threat. See Executive Order at § 2(a). During this worldwide review, Section 2(c) places a temporary, 90-day suspension on the admission of certain nationals of six countries that Congress and the Executive had previously identified as presenting heightened terrorism-related concerns: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The Executive Order explains that each of the six countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones,” which is why Congress or the Executive previously designated them. Id. at § 1(d)); see also id. at § 1(b)(i).
“[I]n light of the[se] national security concerns,” and pursuant to his authority under 8 U.S.C. §§ 1182(f ) and 1185(a), the President determined “that the unrestricted entry into the United States” of those six countries’ nationals during the 90 days “would be detrimental to the interests of the United States.” Executive Order at § 2(c). The President also adopted the suspension “[t]o temporarily reduce investigative burdens on relevant agencies during the review period,” “to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals,” and “to ensure that adequate standards are established to prevent infiltration by foreign terrorists.” Id.2
The Executive Order includes a detailed provision permitting case-by-case waivers from Section 2(c)’s entry suspension when denying entry “would cause undue hardship” and “entry would not pose a threat to national security and would be in the national interest.” Id. at § 3(c). It provides a nonexhaustive list of circumstances in which a waiver could be appropriate, including when the applicant seeks entry “to visit or reside with a close family member (such as a spouse,
2 The Executive Order specifies that the suspension applies only to aliens who (1) were outside the United States on the Order’s effective date, (2) did not have a valid visa on that date, and (3) did not have a valid visa on the effective date of the earlier executive order addressing travel.
8

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 17 of 37
child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa.” Id. at § 3(c)(iv). Waivers may be requested, and are decided by a consular officer, “as part of the visa issuance process,” or by the Commissioner of U.S. Customs and Border Protection (or his delegatee). Id. at § 3(c).3
Although lower courts preliminarily enjoined enforcement of Section 2(c) of the Executive Order, on June 26, 2017, the Supreme Court disagreed with the equitable balancing undertaken by those courts. The Court stayed the injunctions imposed by the lower courts and permitted enforcement of Section 2(c) against aliens “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” IRAP, 137 S. Ct. at 2088. Additionally, the Court rejected the lower court orders to the extent they “also bar enforcement of § 2(c) against foreign nationals abroad who have no connection to the United States at all” because “[d]enying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national.” Id. The Court in turn recognized that the “Government’s interest in enforcing § 2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.” Id. (recognizing in this context that the “interest in preserving national security is ‘an urgent objective of the highest order’”). The Court concluded by explaining that while the injunctions would stand for foreign nationals with bona fide connections to the United States, “[a]ll other foreign nationals are subject to the provisions of [the Executive Order].” Id.
3 See Executive Order on Visas, Bureau of Consular Affairs, U.S. Dep’t of State (July 14, 2017), https://travel.state.gov/content/travel/en/news/important-announcement.html; Q&A: Protecting the Nation from Foreign Terrorist Entry to the United States, U.S. Dep’t of Homeland Sec. (Mar. 6, 2017), https://www.dhs.gov/news/2017/03/06/qa-protecting-nation-foreign-terrorist -entry-united-states.
9

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 18 of 37
In addition to staying the injunctions in part, the Supreme Court granted certiorari to review the case, including the issue presented here—whether the State Department can lawfully implement the Executive Order by declining to issue visas in light of other provisions addressing visa issuance. See Brief of Donald J. Trump, President of the United States, et al., Petitioners, in IRAP, at 51 (Nos. 16-1436, 16-1540) (Aug. 10, 2017) (“Section 1152(a)(1)(A) does not compel the issuance of a visa to an alien who is validly barred from entering the country, including under a suspension proclamation issued pursuant to Section 1182(f).”).
Pursuant to a memorandum issued by the President on June 14, 2017, Section 2(c)’s effective date is “the date and time at which the referenced injunctions are lifted or stayed with respect to that provision,” 82 Fed. Reg. 27,965 (June 19, 2017), meaning that Section 2(c)’s 90day suspension did not begin to run until June 26, 2017, and will expire on September 24, 2017.
III. The State Department’s Implementation of the Executive Order In the wake of the Supreme Court’s stay ruling permitting enforcement of Section 2(c) against aliens without a “credible claim of a bona fide relationship with a person or entity in the United States,” the State Department issued guidance to its consular officers regarding implementation of the Executive Order. IRAP, 137 S. Ct. at 2088. As is relevant here, that guidance provides that, if an applicant is determined to be otherwise eligible for a diversity visa, consular officers should determine whether the applicant is exempt from the Executive Order due to the existing injunctions as narrowed by the Supreme Court (because he has a credible claim of a bona fide relationship) and, if not, whether the applicant qualifies for a waiver. If the applicant is not exempt and does not qualify for a waiver, the guidance instructs consular officers not to issue a diversity visa to such an alien pursuant to 8 U.S.C. § 1201(g). Aliens who are ineligible to enter the United States because they are subject to a suspension of entry under the INA’s Section
10

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 19 of 37
1182(f)—including aliens subject to Section 2(c) of the Executive Order—are ineligible under 8 U.S.C. § 1201(g) to receive a visa. See 8 U.S.C. § 1201(g) (providing that a visa may not issue if the applicant “is ineligible to receive a visa ... under [S]ection 1182”).
FACTUAL BACKGROUND Plaintiffs are four foreign nationals who were selected in May 2016 to apply for a diversity visa. Compl. at ¶ 34. Each of the four applicants is a citizen of a country covered by Section 2(c) of the Executive Order; none has alleged in the Complaint a credible claim of a bona fide relationship with a person or entity in the United States that would exempt them from its application. Id. Plaintiffs do not challenge the Executive Order itself, but solely the State Department’s policy of denying diversity visas to aliens who are otherwise eligible to receive a diversity visa on the ground that they are subject to the Order’s suspension of entry. Pls.’ Mot. at 2. They contend that such a policy is arbitrary and capricious, in violation of the APA. They further allege that if they are statutorily eligible for a diversity visa, the State Department has a nondiscretionary duty to process and issue them a visa prior to September 30, 2017. Id. Plaintiffs seek a writ of mandamus and injunctive relief requiring the State Department to process and issue such diversity visas before September 30, 2017. The first Plaintiff, P.K., is an Iranian national seeking to immigrate with his wife and two children. Compl. at ¶ 11–13. He was interviewed on November 8, 2016 in Armenia, but his visa application was refused on that same day for further administrative processing. See Declaration of Chloe Dybdahl (“Dybdahl Declaration”) at ¶ 5. The second, Sorkhab, is also an Iranian national seeking to immigrate with his wife and three children. Comp. at ¶ 14–16. The Department of State interviewed Sorkhab on December 14, 2016. Compl. at ¶ 37. The consular officer refused him a visa the same day for further
11

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 20 of 37
administrative processing. Dybdahl Declaration at ¶ 6. Although Sorkhab was re-interviewed in June, that was in connection with his newborn baby, whom Sorkhab sought to add as a derivative diversity visa beneficiary. Id.
The third Plaintiff, Almaqrami, is a Yemeni national. Compl. ¶ 17. Almaqrami was interviewed and refused a visa on May 25, 2017. Id. at ¶ 38. On July 12, 2017, the Department of State contacted Almaqrami. Id. On August 4, 2017, Almaqrami replied in an e-mail to the Department of State stating that he has a bona fide relationship with a U.S. entity. Almaqrami followed up on this issue and provided documentation to this same effect on August 18, 2017. Dybdahl Declaration at ¶ 7. These admissions conflict with the allegations in the Complaint, which state that “Almaqrami does not have any family in the United States, nor does he currently have a job offer or other connections to an organization in the United States that would qualify under the Supreme Court’s ‘bona fide relationship’ standard.” Compl. ¶ 38.
The fourth Plaintiff, Furooz, is also a Yemeni national. Id. at ¶ 18. After Furooz was interviewed and refused a visa for further administrative processing on December 15, 2016, he sent an e-mail to the U.S. Embassy in Kuala Lumpur, Malaysia on July 27, 2017 indicating that he has a bona fide relationship with a cousin in the United States. Dybdahl Declaration at ¶ 8. In the Complaint, filed one week later, Furooz alleges that he “ha[s] not established any bona fide relationship with any person or entity in the United States that would qualify [him] for an exception to the [Order].” Compl. ¶ 34. Regardless of this inconsistency, Furooz provided documentation of his relationship to his cousin within the United States on August 18, 2017. Dybdahl Declaration at ¶ 8.
12

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 21 of 37
LEGAL STANDARDS I. Preliminary Injunctive Relief. In order to prevail on a motion for a preliminary injunction, the movants must show “that [they are] likely to succeed on the merits, [are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is an “extraordinary and drastic remedy” that is “never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689–90 (2008) (citations omitted). Accordingly, preliminary injunctions “should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) (citation omitted). Because the basic function of a preliminary injunction is to preserve the status quo pending a determination of the action on the merits, Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014); Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1968) (per curiam) (“The power to issue a preliminary injunction, especially a mandatory one, should be sparingly exercised.”) (emphasis added) (internal quotations omitted), courts generally require a movant to meet a higher degree of scrutiny where the movant seeks to alter rather than maintain the status quo, or where issuance of the injunction will provide the movant with substantially all of the relief that would be available after a trial on the merits. See, e.g., Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial § 13:46 (2017 ed.); cf. Allina Health Servs. v. Sebelius, 756 F. Supp. 2d 61, 69–70 (D.D.C. 2010) (noting how “courts have held the movant for a mandatory injunction to a higher burden”). II. Review Under The Administrative Procedure Act. Whether the State Department has complied with the APA is a question of law. See Am.
13

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 22 of 37
Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). The Court can set aside agency action, findings, or conclusions only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Courts have stressed that this is a “deferential” standard, Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007), that “presume[s] the validity of agency action,” Southwestern Bell Tel. Co. v. FCC, 168 F.3d 1344, 1352 (D.C. Cir. 1999), and bars courts from substituting their own judgment for that of the agency’s. See Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
III. Review Under The Mandamus Act. The extraordinary writ of mandamus is available “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. The writ of mandamus is “a drastic and extraordinary remedy reserved for really extraordinary causes.” Cheney v. United States Dist. Court, 542 U.S. 367, 380 (2004) (internal quotations and citation omitted); accord Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). Mandamus relief is available only 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.” In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (citations omitted).“[T]he standards for obtaining relief [through mandamus and through the APA] are essentially the same.” Viet. Veterans of Am. v. Shinseki, 599 F.3d 654, 659 n.6 (D.C. Cir. 2010) (citing In re Core Commc’ns Inc., 531 F.3d 849, 855 (D.C. Cir. 2008)).
ARGUMENT I. The Plaintiffs Have No Likelihood Of Success. To demonstrate a likelihood of success on the merits, the Plaintiffs must make a
14

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 23 of 37
“substantial indication of probable success.” Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); see also Demjanjuk v. Meese, 784 F.2d 1114, 1117-18 (D.C. Cir. 1986) (Bork, J.) (denying equitable relief where, despite threat of irreparable harm, petitioner failed to demonstrate likelihood of success). Here, Plaintiffs’ claims are centered on whether the State Department has acted arbitrarily or capriciously in the adjudication of their diversity visa applications, or has violated a clear duty in not already issuing diversity visas to Plaintiffs. They do not challenge the Executive Order itself.
Plaintiffs’ central argument on the merits is that “the policy set forth in the cable is contrary to law and must be set aside” because (1) “[n]othing authorizes the State Department to impose additional eligibility requirements for an immigrant visa”; (2) “the State Department cable illegally discriminates by making national origin relevant to the decision to issue immigrant visas”; and (3) “[t]he plain text of the Executive Order, consistent with the authorizing statute, only limits entry and does not prohibit visa issuance.” Pls.’ Mot. at 11–12. Plaintiffs’ claims, however, are barred by two threshold considerations: (1) the Supreme Court’s stay in IRAP and (2) the doctrine of consular non-reviewability. Even if this Court were to assess the merits, however, Plaintiffs have failed to show that they have any likelihood of success. Refusing to issue diversity visas to aliens who are ineligible to enter the United States pursuant to 8 U.S.C. § 1182(f) is neither “arbitrary or capricious” nor a failure to perform a non-discretionary duty.
A. The Plaintiffs’ Claims Are Precluded By the Supreme Court’s Stay in IRAP. As a threshold matter, the Supreme Court is currently considering the validity of the Executive Order, and in doing so has already balanced the equities in determining how that Order may be implemented pending its consideration. The relief Plaintiffs seek here is contrary to that Supreme Court determination regarding preliminary relief. Specifically, the Court held that the
15

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 24 of 37
suspension in Section 2(c) of the Executive Order may be enforced against aliens abroad who seek admission but who lack a credible claim of a bona fide relationship with U.S. persons or entities. IRAP, 137 S. Ct. at 2088; see also id. at 2087 (“We grant the Government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement of § 2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”) (emphasis added). Importantly, the Court’s equitable balance was made when faced with the legal claim, embraced by the district court in IRAP and the court of appeals in Hawai‘i v. Trump, that the State Department was unlawfully implementing the § 1182(f) suspension on entry by denying visas to foreign nationals. See IRAP v. Trump, — F. Supp. 3d —, 2017 WL 1018235, at *9 (D. Md. Mar. 16, 2017) (holding that visas could be issued to individuals who could not enter under Section 1182(f)); Hawai‘i v. Trump, 859 F.3d 741, 778 (9th Cir. 2017); see also Brief of Donald J. Trump, President of the United States, et al., Petitioners, in IRAP, at 51 (Nos. 16-1436, 16-1540) (Aug. 10, 2017) (other statutes do “not compel the issuance of a visa to an alien who is barred from entering the country” under 1182(f)). Thus, the Supreme Court’s stay order has already determined, at least implicitly, that pending the Supreme Court’s consideration of the merits, the Government may implement the Executive Order by denying visas to foreign nationals who are suspended from entering the country (unless those foreign nationals have a bona fide relationship with a person or entity in the United States). Here, Plaintiffs’ Complaint concedes that “[t]hey have not established any bona fide relationship with any person or entity in the United States that would qualify them for an exception to the Executive Order.” Compl. ¶ 34. This indicates that they are therefore covered by the Supreme Court’s decision in June regarding the issuance of visas.
Plaintiffs’ contrary interpretation—that visas must be issued even if a person is lawfully barred from entry by the Executive Order—would potentially create confusion and uncertainty at
16

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 25 of 37
the borders and ports of entry by allowing individuals to travel on valid visas, but then be prevented from entering the United States at the border. Given that the Supreme Court permitted the Executive Order to go into effect except to the extent it said otherwise, and did so in the face of arguments and one circuit court’s holding that visa requirements override the President’s Section 1182(f) authority, this Court should not issue an injunction that would require the issuance of visas in the face of the unchallenged entry bar.
More importantly, Plaintiffs’ attempt to artfully plead around this problem is in effect an effort to circumvent the Supreme Court’s holding on the balance of equities in this context, where foreign nationals abroad lack any bona fide connection to the United States, yet seek court intervention in their efforts to gain entry to the United States. The Supreme Court unambiguously stated that in those circumstances, preliminary relief is not warranted because “[d]enying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national” and the “Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.” IRAP, 137 S. Ct. at 2087. The Supreme Court concluded that while the injunctions would stand for foreign nationals with bona fide connections to the United States, “[a]ll other foreign nationals are subject to the provisions of [the Executive Order].” Id. (emphasis added). This Court should reach the same conclusion regarding the equitable balance presented by Plaintiffs here. Striking a different balance and granting the relief Plaintiffs request would contradict the Supreme Court’s determination on preliminary relief.
B. The Doctrine of Consular Non-Reviewability Bars Plaintiffs’ Claims. It is a fundamental separation-of-powers principle, long recognized by Congress and the Supreme Court, that the political branches’ decisions to exclude aliens abroad generally are not
17

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 26 of 37
judicially reviewable. That firmly established principle bars any review of Plaintiffs’ claims. The Supreme Court has permitted limited review only when a U.S. citizen asserts a cognizable claim that exclusion of an alien abroad infringes the citizen’s own rights. No such claims are at issue here, as Plaintiffs admit in their Complaint.
“The exclusion of aliens is a fundamental act of sovereignty” that the Constitution entrusts to the political branches. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). “The right to” exclude aliens “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” Id. The Supreme Court accordingly “ha[s] long recognized the power to … exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)).
As Justice Jackson explained in Harisiades v. Shaughnessy, 342 U.S. 580 (1952), “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” Id. at 588–89. “Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Id. at 589. “The conditions of entry for every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, [and] the grounds on which such determination shall be based” are “wholly outside the power of this Court to control.” Fiallo, 430 U.S. at 796 (citation omitted).
Of course, Congress generally “may, if it sees fit, … authorize the courts to” review decisions to exclude aliens. Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892). Absent
18

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 27 of 37
such affirmative authorization, however, judicial review of exclusion of aliens outside the United States is ordinarily unavailable. Courts have applied the fundamental and longstanding principle of nonreviewability to conclude that the denial or revocation of a visa for an alien abroad “is not subject to judicial review … unless Congress says otherwise.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999). Courts have referred to that principle as “the doctrine of consular nonreviewability,” id., but this shorthand label merely reflects the context in which the principle most often arises—that is, challenges to decisions by consular officers adjudicating visa applications. The principle underlying that doctrine applies regardless of the manner in which the Executive decides to deny entry to an alien abroad. See, e.g., Doan v. INS, 160 F.3d 508, 509 (8th Cir. 1998) (R. Arnold, J.) (applying the doctrine to a non-consular officer’s decision who was the “functional equivalent … because he [wa]s an Executive Branch official … deciding questions of admissibility brought before him by aliens who are also located outside the United States”).
The Supreme Court has recently affirmed these basic principles, engaging in limited review only when a U.S. person contended that the denial of a visa to an alien abroad violated the citizen’s own rights. See Kerry v. Din, 135 S. Ct. 2128, 2139–41 (2015) (Kennedy, J., concurring); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). Here, Plaintiffs have conceded that they lack connections to the United States, and the rights of a person here are therefore not implicated— making even the limited judicial review in Mandel and Din unavailable.
This precludes review of Plaintiffs’ claims where, as here, Congress has declined to provide for judicial review of decisions to exclude aliens abroad. Specifically, Congress has not authorized judicial review of visa denials. Although Congress has created in the APA “a general cause of action” for “persons ‘adversely affected or aggrieved by agency action within the meaning of a relevant statute,’” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984) (citation omitted), that
19

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 28 of 37
cause of action does not permit review because the APA does not displace the general rule barring such review of decisions to exclude aliens abroad. Saavedra Bruno, 197 F.3d at 1157–62; see also 5 U.S.C. §§ 701(a), 702(1).
And if courts cannot review a consular officer’s decision to deny a visa, then a fortiori, Plaintiffs cannot seek review of the timing or pace of administrative processing prior to the scheduling of a visa interview. See, e.g., Saleh v. Holder, 84 F. Supp. 3d 135, 139 (E.D.N.Y. 2014) (holding that “courts lack subject matter jurisdiction to review the visa-issuing process itself”); Castillo v. Rice, 581 F. Supp. 2d 468, 474 (S.D.N.Y. 2008) (collecting cases for the proposition that “Petitioners simply do not have a right to an expedited interview date from the Consulate”). That is particularly true given that the diversity visa program does not specify any timeline or maximum length of time for administrative processing. The State Department lacks authority to issue diversity visas after the end of the fiscal year. It cannot, and is not required to, find all diversity visa applicants eligible and issue them visas before that date. Indeed, the State Department selects more aliens than the number of visas it may issue, in part because of the recognition that not all applicants will be able to establish eligibility and be issued visas by the end of the fiscal year. See DV 2015 – Selected Entrants, U.S. Dep’t of State, https://travel.state.gov/ content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-july-2016.html (last visited Aug. 17, 2017).
C. Plaintiffs Fail to Show a Likelihood of Success on the Merits. Even assuming this Court could assess the merits of Plaintiffs’ claims, those claims have no likelihood of success. Plaintiffs contend that the State Department’s policy of denying diversity visas to applicants they believe are eligible is contrary to law because (1) it must issue visas to otherwise qualified applicants and (2) its denial of visas to nationals of the six countries in the
20

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 29 of 37
Executive Order violates the statutory bar on discrimination. Plaintiffs’ claims lack merit. Congress has directed that a visa may not be issued if the applicant “is ineligible to receive
a visa … under [S]ection 1182.” 8 U.S.C. § 1201(g). Section 1182 lists many such grounds for ineligibility—among them health, criminal history, and terrorist affiliation. Whatever the relevant underlying ground in any individual case, the alien is denied a visa because he is “ineligible” to enter “under [S]ection 1182.” Id.
That is true of aliens who are ineligible to enter because they are subject to a suspension of entry under Section 1182(f)—including aliens subject to Section 2(c) of the Executive Order. The Department of State treats aliens covered by exercises of the President’s Section 1182(f) authority as ineligible for visas. See U.S. Dep’t of State, 9 Foreign Affairs Manual, 302.14-3(B) (2016). Indeed, the very premise of Plaintiffs’ argument is mistaken because it overlooks how “as an absolute precondition to admission, an alien must submit his proof that he is not excludable to a preliminary screening by a consular officer.” Castaneda-Gonzalez v. INS, 564 F.2d 417 (D.C. Cir. 1977) (interpreting 8 U.S.C. § 1201(g) (emphasis added)); see also 8 U.S.C. § 1182(a). The conditions for being “excludable”—the statutory forerunner to inadmissibility—are contained in 8 U.S.C. § 1182, and therefore encompass the President’s § 1182(f) authority to restrict the entry of certain foreign nationals. Section 1182(a) explains quite plainly that “aliens who are inadmissible under the following paragraphs” (including Section 1182(f)) “are ineligible to receive visas.” 8 U.S.C. § 1182(a) (emphasis added). In conjunction with this provision, Section 1201(g) provides that “[n]o visa ... shall be issued to an alien if ... it appears to the consular officer ... that such alien is ineligible to receive a visa ... under section 1182.” 8 U.S.C. § 1201(g). Because Plaintiffs do not challenge the Executive Order, and Plaintiffs are inadmissible pursuant to that Order, Sections 1182(a) and 1201(g) specify plainly that no visa may be issued.
21

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 30 of 37
Thus, if an alien is subject to Section 2(c) and does not qualify for a waiver, he is properly denied an immigrant visa because he is ineligible as someone barred from entering the country under Section 1182(f)—not because the State Department is disregarding the visa statutes or rules created by the diversity visa program. Instead, the Department is fully complying with those rules in making the determination whether the alien seeking a diversity visa is subject to any other bars on admissibility including, as relevant here, those under Section 1182(f) and the Executive Order. Moreover, it would make little sense to issue a visa to an alien whom the consular officer knows is barred from entering the country, only for the alien to be denied admission upon arrival. A visa entitles the alien to travel to the United States, but does not entitle the alien to be admitted if, upon arrival, “he is found to be inadmissible.” 8 U.S.C. § 1201(h). Applying the Executive Order at that time would result in administrative confusion, in spite of Plaintiffs’ assurances that they will forgo travel until the Executive Order admission restriction is lifted.
The implications of Plaintiffs’ argument extend far beyond the current controversy regarding the Executive Order. Section 1182 includes the full range of inadmissibility grounds, including based on health concerns, § 1182(a)(1); criminal activity, § 1182(a)(2); terrorism, § 1182(a)(3); and illegal entrants and smugglers, § 1182(a)(6). Under Plaintiffs’ erroneous theory that the diversity visa statutes override these limitations, the State Department would be required to issue visas to not only those covered by the Executive Order, but to all such groups of inadmissible aliens. That is not the way the statutes work together. See 8 U.S.C. § 1182(a) (individuals in these groups “are ineligible to receive visas and ineligible to be admitted”) (emphasis added). Moreover, Plaintiffs’ general view that being selected in the “visa lottery” carries with it an entitlement to a diversity visa must be wrong because the State Department selects a number of potential applicants (around 100,000) that far exceeds the number of available visas
22

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 31 of 37
(50,000). Plaintiffs’ logic—and their rhetoric of “entitlement” to a diversity visa once they win the lottery—would wholly upend the way the State Department operates the diversity visa program in a broad range of circumstances where there is no Executive Order suspending entry.
Accordingly, Plaintiffs’ claims that the State Department must issue them diversity visas if they are statutorily eligible, even if they are otherwise ineligible to receive a visa by virtue of Section 1182(f), lacks merit.
II. The Plaintiffs Cannot Demonstrate Any Irreparable Harm. Parties moving for a preliminary injunction must demonstrate that they are “likely to suffer irreparable harm in the absence of preliminary relief.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014). As with the other factors, the movants have the burden of making a “clear showing” that they face such injury. Id.; see, e.g., Fisheries Survival Fund v. Jewell, — F. Supp. 3d —, 2017 WL 629246, at *3 (D.D.C. Feb. 15, 2017) (Chutkan, J.) (noting how “[t]he standard for irreparable harm is particularly high in the D.C. Circuit”). The Supreme Court has made clear that a court may not issue “a preliminary injunction based only on a possibility of irreparable harm ... [since] injunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 555 U.S. at 22 (emphasis added). If a party makes no showing of imminent irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). In this case, Plaintiffs claim that if the Court does not preliminarily enjoin Defendants from implementing the alleged cable guidance, then “Plaintiffs face the imminent prospect of an injury that cannot later be cured.” Pls.’ Mot. at 10. But as previously discussed, the Supreme Court has already balanced the relevant equities here—between “foreign nationals who lack any bona fide
23

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 32 of 37
relationship with a person or entity in the United States” and the Government’s “interest in preserving national security is ‘an urgent objective of the highest order’” and is “undoubtedly at [its] peak when there is no tie between the foreign national and the United States.” IRAP, 137 S. Ct. at 2088. That same balance applies here, and requires the denial of preliminary relief in these circumstances, as the Supreme Court concluded. See id. (“All other foreign nationals are subject to the provisions of [the Executive Order].”).
Moreover, Plaintiffs have failed to show that they are otherwise eligible for diversity visas notwithstanding the Executive Order. Being selected as a winner of the diversity visa lottery does not guarantee a visa will issue. 8 U.S.C. § 1154(a)(1)(I)(ii)(II) (entitling a diversity visa only to “[a]liens who qualify”). Aliens invited to apply for a diversity visa must still demonstrate that they are eligible and admissible under 8 U.S.C. § 1182, and that they will remain so eligible through the end of the fiscal year. Id.; see also id. § 1182(a) (“Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas[.]”); 8 U.S.C. § 1361 (noting that visa applicants bear the burden of establishing eligibility). The visa application process is complex, and requires the applicant to submit numerous records, including birth records, court and prison records, military records, and records concerning education or work experience. Id. at § 1202(a), (b). Plaintiffs make no real argument that they have satisfied, or will satisfy, all of the admissibility and other requirements for a diversity visa by the end of fiscal year 2017. See Compl. ¶ 40 (stating in conclusory fashion that, to date, “Plaintiffs are statutorily eligible to receive the visa” and “do not fall within any of the grounds of inadmissibility under 8 U.S.C. § 1182(a)”). Indeed, three of the named Plaintiffs were denied visas for administrative processing prior to the effective date of the Executive Order becoming enforceable (the fourth, Mr. Almaqrami, was originally interviewed on May 25, 2017 but provided documentation of a bona
24

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 33 of 37
fide relationship to a U.S. entity on August 18, 2017). Thus, they have not “clear[ly]” shown that any potential visa denial would be a result of the State Department’s allegedly unlawful policy implementing the Executive Order, as opposed to Plaintiffs’ failure to prove that they satisfy the diversity visa eligibility requirements. And even if they could, Plaintiffs’ asserted need for the extraordinary remedy of preliminary injunctive relief is undermined by their own delay in seeking such relief. Newdow v. Bush, 355 F. Supp. 2d 265, 292 (D.D.C. 2005).
Thus, Plaintiffs have not met the “considerable burden” of proving that their purported injuries are “certain, great and actual—not theoretical—and imminent, creating a clear and present need for extraordinary equitable relief to prevent harm.” Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C. 2005) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)) (internal quotation marks omitted).
III. Both The Balance Of Hardships And The Public Interest Favor Defendants. The final two factors required for preliminary injunctive relief—balancing of the harm to the opposing party and the public interest—merge when the Government is the opposing party. See, e.g., Nken v. Holder, 556 U.S. 418, 435 (2009). Here, courts must “pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312–13 (1982). At its core, Plaintiffs’ motion is asking for special treatment from our nation’s immigration laws, but they make no showing that their alleged “irreparable injury” outweighs the threatened harm that an injunction would cause, or that it would not “adversely affect [the] public interest[.]” Id.; Southdown, Inc. v. Moore McCormack Res., Inc., 686 F. Supp. 595, 596 (S.D. Tex. 1988) (noting how it is the petitioner’s burden to show injunction causes “no disservice to unrepresented third parties”). Here, the public interest and the balance of
25

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 34 of 37
harms call for denying the request for an injunction.4 Any order that enjoins a governmental agency from enforcing statutes and executive orders
promulgated by the duly elected representatives of the people constitutes an irreparable injury that weighs heavily against the entry of injunctive relief. See, e.g., New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977). Moreover, the part of the Executive Order at issue here— which restricts such aliens’ entry—reflects a national security judgment of the President and Cabinet-level officials. Cf. Louhghalam v. Trump, 230 F. Supp. 3d 26, 34, 37 (D. Mass. 2017) (declining to issue a preliminary injunction because it would “encroach upon the ‘delicate policy judgment’ inherent in immigration decisions” and noting how “the public interest in safety and security in this ever-more dangerous world is strong”) (quoting Plyler v. Doe, 457 U.S. 202, 225 (1982)).
Indeed, as explained above, the Supreme Court has already conducted such a balancing and has concluded that the temporary suspension of admitting foreign nationals from the six affected countries should not be enjoined. As the Court recently put it, “[t]o prevent the Government from pursuing [national-security] objective[s] by enforcing § 2(c) [of the Order] against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.” IRAP, 137 S. Ct. at 2088 (“The interest in preserving national security is ‘an urgent objective of the highest order.’”) (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010)). In fact, the Supreme Court has stated that
4 Defendants also note that the harm balance is affected because there is an annual cap in the number of visas that may be issued, and many more potential selectees than visas available. Thus, any benefit to Plaintiffs’ individual interests from receiving a visa would need to be balanced against the harm caused to others not before the Court who might lose their opportunity to apply for a visa given the statutory cap.
26

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 35 of 37

“[f]ew interests can be more compelling than a nation’s need to ensure its own security.” Wayte v.

United States, 470 U.S. 598, 611 (1985). Plaintiffs’ request to short-circuit the orderly, national-

security processing of their diversity visas is wholly out of keeping with this interest and the

furthest thing from not “injuring the government or the public at all.” Pls.’ Mot. at 23.

CONCLUSION

For the foregoing reasons, this Court should deny Plaintiffs’ motion for a preliminary

injunction and mandamus relief. Plaintiffs have failed to show that they have a likelihood of

success on the merits, that they will be irreparably injured absent injunctive relief, that the balance

of harms weighs in their favor, or that injunctive relief would be in the public interest. Defendants

therefore respectfully request that the Court deny Plaintiffs’ motion.

Dated: August 18, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

CATHERINE DORSEY Counsel to the Assistant Attorney General

WILLIAM C. PEACHEY Director

GISELA A. WESTWATER Assistant Director

EREZ REUVENI Senior Litigation Counsel

By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station
27

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 36 of 37 Washington, DC 20044 Phone: (202) 305-0106 Facsimile: (202) 305-7000 e-Mail: joshua.press@usdoj.gov STEVEN A. PLATT Trial Attorney Attorneys for Defendant
28

Case 1:17-cv-01533-TSC Document 24 Filed 08/18/17 Page 37 of 37 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this August 18, 2017, I electronically filed the foregoing DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION AND MANDAMUS RELIEF with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all attorneys of record.
/s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney
29

 
 Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.K., et al.,

)

on behalf of themselves and all

)

others similarly situated,

)

)

Plaintiffs/Petitioners,

)

)

v.

)

)

REX W. TILLERSON, et al.,

)

)

Defendants/Respondents. )

)

____________________________________)

No. 1:17-cv-01533-TSC

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF REQUEST FOR PRELIMINARY INJUNCTION

In its August 23, 2017 Order, the Court directed Plaintiffs to identify the current status of

Plaintiffs’ the visa applications, to discuss whether Plaintiffs still have standing to seek the

requested relief, and to address whether the Foreign Affairs Manual is owed deference by the

court for its interpretations of the Immigration and Nationality Act. Plaintiffs address these

questions below, and support their answers to the first two questions with Supplemental

Declarations from Plaintiff P.K., Plaintiff Sorkhab, and Plaintiff Almaqrami.

I. The Status of the Visa Applications

Plaintiff P.K. and his family members

Plaintiff P.K. and his family members believe the administrative processing in their case

is complete. See Supp. Declaration of P.K. ¶ 2.1 The United States embassy in Armenia has

announced that the administrative processing in his case will expire on September 10. Id. The

1 A redacted version of the declaration is attached as Exhibit A. An unredacted declaration has been filed under seal.
1

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 2 of 14
embassy instructs visa applicants “come to our office at your earliest convenience when” the end of administrative processing is announced and not to wait “until the expiration date of your administrative process.” Id. As a result, the Executive Order is the only obstacle to issuing a visa to him and his family members.
There is some possibility that P.K. and his family will qualify for an exemption from the Executive Order. P.K. has recently been admitted to a graduate program in the United States. Id. at ¶ 4 & Ex A. He is currently travelling to Armenia with his family to present the new information to the embassy in hopes of establishing an exemption. Id. at ¶ 7-9. However, he does not know whether the embassy will decide that the university admission qualifies him for an exemption. Thus, he does not know whether he will receive an immigrant visa. Id. at ¶ 10. Plaintiff Afshin Asadi Sorkhab and his family members
On August 23, 2017, Plaintiff Sorkhab was informed that he has cleared administrative processing. See Declaration of Afshin Asadi Sorkhab ¶ 2 & Ex A (attached as Exhibit B). The United States embassy in Abu Dhabi has stated that the “administrative processing on your file has been completed” and his visa “is ready for issuance.” Id. at Ex A. However, it indicates that he must prove a bona fide relationship to be “exempt from the Executive Order.” Id. He cannot currently demonstrate the basis for an exemption from the Executive Order and therefore still cannot receive a visa. Id. at ¶ 3. The Executive Order is the only remaining obstacle to issuing a visa to him and his family members. Plaintiff Hamed Sufyan Othman Almaqrami
Plaintiff Almaqrami remains in administrative processing. See Declaration of Hamed Sufyan Othman Almaqrami ¶ 2 & Ex. A (attached as Exhibit C). The United States Embassy in Kuala Lumpur has informed him that he is in administrative processing because of the Executive
2

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 3 of 14
Order and may lose his opportunity to obtain a diversity visa as a result. On August 4, 2017, he received an email stating that because he lacked a bona fide relationship, “your application will remain in administrative processing during the 90-day period of this travel restriction. As a reminder, all diversity visa applications will expire on October 1, 2017. Therefore, it is plausible that your case will not be issuable due to the Executive Order.” Id. at ¶ 3 & Ex B.
Plaintiff Almaqrami has received a job offer in the United States and has attempted to obtain an exemption from the Executive Order on that basis. Id. On August 16, 2017, at the request of the embassy, he provided them with a copy of the work contract. On August 18, 2017, they informed him that his case “will remain under administrative processing” and he “did not need to submit additional documents now.” Id.at ¶ 4 & Ex. C. He believes that they have rejected his request for an exemption based on the job offer and he does not believe that there is currently any other basis for an exemption. Id.at ¶ 5. He is not aware of any other reason he is ineligible to receive a visa aside from the Executive Order. Id.at ¶ 6. The Executive Order is the only remaining obstacle to issuing a visa to him. Plaintiff Radad Fuiz Furooz
Plaintiff Furooz has received an immigrant visa on the basis of an exemption to the Executive Order. He has filed a notice of voluntary dismissal.
II. Plaintiffs Continue to Have Standing Based on the evidence in the record, the remaining Plaintiffs still have standing. All have
pending visa applications. They have not yet received visas. For P.K. and his family members and for Sorkhab and his family members, the government has acknowledged that administrative processing is complete. For Almaqrami, he is being held in administrative processing as a result of the Executive Order. The government’s communications to these Plaintiffs make clear that the
3

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 4 of 14
Executive Order is the sole remaining obstacle to the issuance of a visa. Thus, if anything, the Plaintiffs’ injury, its causal connection to the government’s illegal conduct, and this Court’s ability to redress the injury have been brought into even sharper relief since the case was filed.
Plaintiffs’ declarations also underscore the irreparable nature of Plaintiffs’ injuries. First, the declarations show that, contrary to the government’s assertions at argument, it is not likely to be able to process large numbers of visa applications in the few days between the termination of the Executive Order and September 30. Plaintiff Sorkhab’s declaration is instructive. The Abu Dhabi Embassy instructs visa recipients to bring their passports “to the Embassy any Sunday or Tuesday at 1:30 p.m., excluding holidays. In most cases, the visa will be ready for pick-up in 4 to 7 days.” Id. The entry ban does not expire until Sunday, September 24, 2017. The embassy in Abu Dhabi will be closed on Friday, September 29, and Saturday, September 30. See Visas, United States Embassy & Consulate in the United Arab Emirates, available at https://ae.usembassy.gov/visas/ (noting that the embassy is open Sunday through Thursday). Thus, once the Executive Order expires, applicants will have just a single time to drop their passports off at the Embassy—Tuesday, September 26, 2017 at 1:30 p.m.—and the visas will need to be issued by no later than the close of business on Thursday, September 28, 2017. That two-day timeframe is substantially shorter than the typical four to seven day processing period.
Second, the declaration of P.K. shows the ongoing harm from the illegal application of the State Department cable even in cases where an individual might be able to establish an exemption. His entire family must travel to Armenia, at significant disruption and expense, and wait an indeterminate amount of time there on the hope that the admission letter might qualify for an exemption. Declaration of P.K. ¶ 7-9. They do not know if they will receive an exemption and could not receive guidance via email. Id. at ¶ 5-6. & Ex. B-C.
4

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 5 of 14
Third, P.K.’s declaration also undermines the government’s argument that it is impracticable to issue visas to Plaintiffs with notations that would prevent those visas from being used to enter the United States prior to the expiration of the Executive Order. Attached to P.K.’s declaration are photos of immigrant visas recently issued to Iranian nationals who have received exemptions or waivers of the Executive Order. Id. at ¶ 11 & Ex. C. These visas demonstrate that the government is already adding notations concerning the Executive Order to visas it issues to individuals who have received exemptions or waivers. Id. It would be straightforward for the government to modify that language for visas issued to Plaintiffs and indicate that they are not exempt and may not enter while the Executive Order is in effect.
Finally, in addition to their own individual claims for which standing exists, Plaintiffs note that a motion for class certification is pending in this case. That motion was filed with the complaint and the government has neither responded nor sought an extension of time. The time to file a response under the local rules has expired. See LCvR 7(b) (parties opposing motions must file within 14 days). Because the government did not file a timely response, “the Court may treat the motion as conceded.” Id. Plaintiffs request that the Court treat the motion as conceded and enter an order granting the request for class certification. In the alternative, the Court should set a very short deadline for the government to file a response.
A class should be certified here. As outlined in the motion for class certification, the requirements of Rule 23(a) – numerosity, commonality, typicality, adequacy, and ascertainability -- are easily met. Moreover, this case is a straightforward example of a civil rights class action Rule 23(b)(2) was designed to facilitate. Fed. R. Civ. P. 23 advisory committee's note to 1966 amendment (presenting as “illustrative” of Rule 23(b)(2) class actions the “various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class”). The
5

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 6 of 14
government has crafted an illegal policy refusing to grant diversity visas to individuals covered by the entry ban. Because the government has acted on grounds generally applicable to the class as a whole, Rule 23(b)(2) authorizes class certification to seek declaratory and injunctive relief. Eubanks v. Billington, 110 F.3d 87, 92 (D.C. Cir. 1997).
Plaintiffs recognize that it is possible that some named plaintiffs might obtain visas during the course of the litigation and, as a result, their individual claims may become moot. The Supreme Court has held that when a class action has been certified, the resolution of the claims of the named plaintiffs does not render the class action moot if the class otherwise remains viable. Kremens v. Bartley, 431 U.S. 119, 132 (1977) (recognizing that case does not become moot where “the named plaintiffs had simply ‘left’ the class, but the class remained substantially unaltered”); Franks v. Bowman Transportation Co., 424 U.S. 747, 755-56 (1976). If this Court certifies the requested class, the visa status of the named plaintiffs will not undermine the effectiveness of any preliminary injunction or affect this Court’s jurisdiction.
Even if all of the named plaintiffs had their claims mooted prior to certifying a class, this Court can still grant the motion. “[I]n some circumstances a class action should not be deemed moot even if the named plaintiff's claim becomes moot prior to certification of the class.” Basel v. Knebel, 551 F.2d 395, 397 n. 1 (D.C.Cir.1977). When a class action is “inherently transitory,” such that the claims of named plaintiffs expire before a class can be certified, the district court retains jurisdiction to act on the class certification motion as long as the named plaintiffs had standing when the case was filed. County of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980). In such cases, this Court has certified class actions even when no named plaintiff has a live claim. See R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 183 (D.D.C 2015) (certifying an “inherently transitory” class of detained
6

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 7 of 14
plaintiffs where detention would last for only “weeks or months”); R.I.L.-R v. District of Columbia, 302 F.R.D. 1, 19 (D.D.C 2013).
Alternatively, new plaintiffs who have not received visas can simply be substituted as class representatives. As this Court has recognized, the fact that “the original named class representatives can no longer advance a live case or controversy does not mean that the claims of the putative class members are likewise moot or that they are somehow precluded from seeking class certification.” Daniel v. Fulwood, 310 F.R.D. 5, 6 (D.D.C 2015). In Daniel, plaintiffs sought to substitute class members as representative plaintiffs to replace named plaintiffs whose claims had become moot. Because there is “no constitutional impediment to allowing such a substitution,” this Court granted the request. Id. If necessary, such substitution can occur here. III. The Court Should not Defer to the Foreign Affairs Manual
The Court should not accord deference to the Foreign Affairs Manual’s interpretations of the Immigration and Nationality Act (“INA”). In particular, no deference is due to the Foreign Affairs Manual’s “interpretation” of 8 U.S.C. § 1182(f). See Gov’t Mem. 21 (citing 9 Foreign Affairs Manual, 302.14-3(B) as the basis for its position that “aliens covered by exercises of the President’s Section 1182(f) authority [are] ineligible for visas”). That is so for two reasons. First, the Foreign Affairs Manual is an informal policy document that does not carry the force of law. The Supreme Court has held that agency interpretations of that kind do not receive deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984). Second, the particular provision of the Foreign Affairs Manual on which the government relies is devoid of any reasoning or explanation justifying the “interpretation” on which the government relies. Courts do not defer to “interpretations” that are nothing more than ipse dixit.
7

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 8 of 14
A. The Court Should Not Give Chevron Deference to the Foreign Affairs Manual Because It Was Not Promulgated Through Notice and Comment, Nor Does It Carry the Force of Law.
“The Supreme Court has held that “[d]eference in accordance with Chevron … is warranted only when ‘it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.’” Gonzales v. Oregon, 546 U.S. 243, 255 (2006) (quoting United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)) (emphasis added). Thus, “[i]nterpretations such as those … contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law[,] do not warrant Chevron-style deference.” Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000).
The Foreign Affairs Manual is precisely the type of agency document that does not warrant Chevron deference. It is an internal guidance document setting forth agency policies so that Department employees can act in a coordinated and consistent fashion. It does not create carry the force of law, because it does not “either determine ‘rights or obligations’ or result in discernible ‘legal consequences’ for regulated parties.” Devon Energy Co. v. Kempthorne, 551 F.3d 1030, 1039 (D.C. Cir. 2008) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). And its interpretations were not “arrived at after … a formal adjudication or notice-and-comment rulemaking.” Scales v. INS, 232 F.3d 1159, 1166 (9th Cir. 2000) (quoting Christensen, 529 U.S. at 587). The Foreign Affairs Manual stands in contrast to the many State Department regulations governing the visa issuance process, which were issued through notice and comment. See 22 C.F.R. Pt. 42. (Notably, none of these regulations suggests that a bar on entry under 8 U.S.C. § 1182(f) is grounds for denying a visa.)
8

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 9 of 14
Accordingly, the Ninth Circuit has held that the Foreign Affairs Manual’s interpretations do not receive Chevron deference. Scales, 232 F.3d at 1166. Instead, the Foreign Affairs Manual’s interpretations are “entitled to respect … only to the extent that those interpretations have the ‘power to persuade.’” Christensen, 529 U.S. at 587 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). That conclusion accords with the D.C. Circuit’s holdings refusing to apply Chevron deference to other, similar agency policy manuals. See, e.g., Pub. Citizen, Inc. v. U.S. Dep’t of Health & Human Servs., 332 F.3d 654, 660 (D.C. Cir. 2003) (“[T]he Supreme Court has twice cited ‘agency manuals’ as an archetype of the kind of document that is not entitled to such deference.”); FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 186 (D.C. Cir. 2001) (collecting cases, including Scales, refusing to defer to informal statements of agency policy such as agency manuals).2
B. The Interpretation Relied Upon by the Government Does Not Warrant Deference of Any Kind, Because It Is Devoid of Reasoning or Explanation.
A court owes no deference at all to an agency’s position—whether under Chevron or under Skidmore—when “there is no reasoned agency reading of the text to which [the court] might defer.” Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 211-12 (2011) (quoting Smith v. City of Jackson, 544 U.S. 228, 248 (2005) (O’Connor, J., concurring in the judgment)). Thus, even if the Foreign Affairs Manual did carry the force of law (it does not) and thereby warranted
2 On a few occasions, the D.C. Circuit has deferred to an agency’s interpretations in situations other than notice-and-comment rulemaking and formal adjudications. But as the D.C. Circuit has explained, it did so where “the agency interpretations were clearly intended to have general applicability and the force of law,” and “the agency decisions were thoroughly explained.” Fox v. Clinton, 684 F.3d 67, 78 (D.C. Cir. 2012) (discussing Barnhart v. Walton, 535 U.S. 212 (2002), Menkes v. U.S. Dep’t of Homeland Sec., 637 F.3d 319 D.C. Cir. 2011), and Mylan Labs., Inc. v. Thompson, 389 F.3d 1272 (D.C. Cir. 2004)). Here, the Foreign Affairs Manual does not carry the force of law for the reasons explained in Part A, and the relevant decision is not explained at all, as discussed in Part B.
9

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 10 of 14
Chevron deference as a general matter, “that document contains no interpretation [of the statute] to which [the court] might defer.” Pub. Citizen, 332 F.3d at 661; Fox v. Clinton, 684 F.3d 67, 77 (D.C. Cir. 2012) (holding that even an agency interpretation to which Chevron applies may still “fail for want of reasoned decisionmaking”). As the D.C. Circuit has explained, even under Chevron, “we defer to an agency’s statutory interpretations not only because Congress has delegated law-making authority to the agency, but also because that agency has the expertise to produce a reasoned decision . . . If an agency fails or refuses to deploy that expertise—for example, by simply picking a permissible interpretation out of a hat—it deserves no deference.” Vill. of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011).
Here, the government cites 9 FAM 302.14-3(B) to support its position that “aliens covered by exercises of the President’s Section 1182(f) authority [are] ineligible for visas.” That portion of the Foreign Affairs Manual, however—at least the part that is publicly accessible— contains no explanation whatsoever for why 8 U.S.C. § 1182(f) should be read to bar eligibility for visas. As Plaintiffs explained in their Preliminary Injunction Memorandum, the government’s position depends upon eliding the distinction between visa issuance and entry, so that a bar on entry becomes a basis for denying visa issuance. To be sure, the Foreign Affairs Manual reaches that conclusion. See 9 FAM 301.4-1(b)(12), (c)(11)(b). But the conclusion is ipse dixit. The Foreign Affairs Manual does not provide any analysis of the statutory text to justify or explain that conclusion.
Indeed, the portions of the Foreign Affairs Manual that do explain the President’s authority under Section 1182(f) describe that provision solely in terms of a bar on entry, and say nothing about visa issuance. 9 FAM 302.14-3(B)(1)(a) sets forth the substance of Section 1182(f):
10

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 11 of 14
INA 212(f) authorizes the President to suspend entry into the United States of “any aliens or any class of aliens” or to “impose on the entry of aliens any restrictions he may deem appropriate” for such period as he deems necessary upon determining that their entry “would be detrimental to the interests of the United States.”. 9 FAM 302.14-3(B)(1)(a) (emphasis added). 9 FAM Section 302.14-3(B)(1)(b) goes on to explain how the authority in Section 1182(f) is exercised, again acknowledging that the authority under Section 1182(f) pertains only to entry: “The President exercises this authority by issuing a Presidential Proclamation (‘PP’) barring certain aliens or a class of aliens ineligible for entry into the United States or imposing appropriate restrictions on their entry.” 9 FAM Section 302.14-3(B)(1)(b) (emphasis added). The Manual then goes on to list examples of Presidential Proclamations, all of which relate to bars on entry. See id. §302.14-3(B)(1)(b)(2) (providing example of Presidential Proclamation that “bar[s] entry based on affiliation” (emphasis added)); id. § 302.14-3(B)(1)(b)(3) (providing example of Presidential Proclamation that “suspend[s] the entry of persons based on objectionable conduct” (emphasis added)). Thus, in the provisions specifically discussing Section 1182(f), the Foreign Affairs Manual does not even recognize its conflation of visa issuance with entry, let alone explain why that conflation is justified. Worse still, when the Foreign Affairs Manual discusses how an entry bar under Section 1182(f) interrelates to grounds of inadmissibility, it distinguishes between the two and states that “statutory inadmissibilities are to be considered prior to determining whether a Presidential Proclamation applies.” 9 FAM Section 302.14-3(B)(1)(c). Yet under 8 U.S.C. § 1182(a), only inadmissibility makes an alien both “ineligible to receive visas and ineligible to be admitted to the United States,” 8 U.S.C. § 1182(a) (emphasis added). Section 1182(f), by contrast, says nothing at all about visa ineligibility but operates merely to “suspend[] the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any
11

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 12 of 14
restrictions [the President] may deem to be appropriate.” 8 U.S.C. § 1182(f). The Foreign Affairs Manual neither acknowledges the disconnect between the statutory text and the conclusion that visas cannot be issued to individuals falling within Section 1182(f), nor attempts to explain that disconnect away. The same tension exists between the regulations, which were adopted through notice and comment, and the Foreign Affairs Manual, which was not. The regulations define in detail the “classes of inadmissible aliens who are ineligible to receive visas and who shall be ineligible for admission into the United States,” 22 C.F.R. § 40.9, and none of those classes include aliens subject to an entry bar promulgated under Section 1182(f).
So, although the government asserts that the Foreign Affairs Manual “interprets” Section 1182 to bar the issuance of visas to individuals falling within Section 1182(f), the Manual provides no explanation of why that interpretation is a permissible reading of the statute, let alone the best reading; how that interpretation can be squared with the express language of Section 1182(a), which distinguishes between visa issuance and entry; how that interpretation can be squared with the express language of Section 1182(f), which addresses only entry; and how that interpretation can be reconciled with the regulations, which expressly state that visas can be denied for reasons of inadmissibility, but despite laying out in detail the classes of aliens who are inadmissible, say nothing at all about persons falling within Section 1182(f). To the extent that the Foreign Affairs Manual offers any interpretation at all, it is not one that warrants any deference whatsoever in light of the absence of any reasoned explanation for that interpretation. “[S]o conclusory a statement cannot substitute for a reasoned explanation, for it provides neither assurance that the [agency] considered the relevant factors nor a discernable path to which the court may defer.” Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 241 (D.C. Cir. 2008) (citation omitted); Vill. of Barrington, 636 F.3d at 650.
12

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 13 of 14

August 28, 2017
Samer E. Khalaf (pro hac vice) Yolanda Rondon AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE 1705 DeSales Street, N.W., Suite 500 Washington, D.C. 20036 Tel: 202-244-2990 Skhalaf@adc.org
Karen C. Tumlin Esther Sung NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd, Suite 1600 Los Angeles, CA 90010 (213) 639-3900 tumlin@nilc.org
Justin B. Cox NATIONAL IMMIGRATION LAW CENTER PO Box 170208 Atlanta, GA 30317 (678) 279-5441 cox@nilc.org
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 4301 Connecticut Avenue, NW, Suite 434 Washington, DC 20008 202-457-0800 aspitzer@acludc.org

Respectfully submitted,
/s/ Matthew E. Price Matthew E. Price (DC Bar #996158) Max J. Minzner (pro hac vice) JENNER & BLOCK LLP 1099 New York Ave. NW Suite 900 Washington, DC 20001 Tel. 202-639-6000 Fax: 202-639-6066 Email: mprice@jenner.com
mminzner@jenner.com
Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 ojadwat@aclu.org
Cody H. Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 cwofsy@aclu.org samdur@aclu.org

13

Case 1:17-cv-01533-TSC Document 30 Filed 08/28/17 Page 14 of 14 CERTIFICATE OF SERVICE
I certify that, on August 28, 2017, I caused the foregoing Plaintiffs’ Supplemental Brief in Support of Request for Preliminary Injunction to be served on all counsel of record via CM/ECF.
/s/Matthew E. Price
14

 
 Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HAMED SUFYAN OTHMAN

)

ALMAQRAMI,

)

414, Muthia Nagar,

)

Annamalainagar, C.Kothangudi Post, )

Chidambaram Taluk.

)

Cuddalore District,

)

Chennai State, India.

)

)

ALIAKBAR NOWZARI GOLSEFID, )

MASOUMEH FOTOHI, and

)

BEHNAM NOZARI GOLSEFID,

)

Shahid Navab Kashani Street

)

Velenjak

)

Tehran, Tehran 1985748168

)

Iran

)

)

FARZAD ABDOLLAHI ZADEH,

)

ZHREH BABADI, and

)

SZ and RZ,

)

Eghbalpour Avenue

)

No. 4 street. Plaque 1, Floor One

)

Tehran, Iran

)

)

AIMAN ALSAKKAF,

)

jalan SP 5/3,

)

Taman Serdang Perdana,

)

43300 Seri Kembangan, Selangor

)

Malaysia

)

Plaintiffs/Petitioners,

)

)

v.

)

)

REX W. TILLERSON, in his official

)

capacity as Secretary of State,

)

JOHN DOES #1-#50, in their official

)

capacity as the consular officials

)

responsible for issuing diversity visas,

)

U.S. Department of State

)

2201 C St. NW

)

Washington, DC 20520

)

)

Defendants/Respondents. )

____________________________________)

No. 1:17-cv-01533-TSC
FIRST AMENDED PETITION FOR MANDAMUS AND FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 2 of 22

FIRST AMENDED PETITION FOR MANDAMUS AND FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Samer E. Khalaf (pro hac vice) Yolanda Rondon AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE 1705 DeSales Street, N.W., Suite 500 Washington, D.C. 20036 Tel: 202-244-2990 Skhalaf@adc.org

Matthew E. Price (DC Bar #996158) Max J. Minzner (pro hac vice) JENNER & BLOCK LLP 1099 New York Ave. NW Suite 900 Washington, DC 20001 Tel. 202-639-6000 Fax: 202-639-6066 Email: mprice@jenner.com
mminzner@jenner.com

Karen C. Tumlin Esther Sung NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd, Suite 1600 Los Angeles, CA 90010 (213) 639-3900 tumlin@nilc.org
Justin B. Cox NATIONAL IMMIGRATION LAW CENTER PO Box 170208 Atlanta, GA 30317 (678) 279-5441 cox@nilc.org
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 4301 Connecticut Avenue, NW, Suite 434 Washington, DC 20008 202-457-0800 aspitzer@acludc.org

Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 ojadwat@aclu.org
Cody H. Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 cwofsy@aclu.org samdur@aclu.org

Counsel for Plaintiffs

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 3 of 22
INTRODUCTION 1. This suit asks the Court to place diversity visa applicants from Iran, Syria, Sudan, Yemen, Somalia, and Libya in the same position they would have been in, but for the State Department’s illegal decision to deny diversity visas to citizens of those countries unless they could establish a bona fide relationship with a U.S. person or entity. 2. The diversity visa program awards immigrant visas to nationals of countries that historically have sent low numbers of immigrants to the United States. That includes nationals of Iran, Syria, Sudan, Yemen, Somalia, and Libya, among dozens of other countries. Each year, a certain number of individuals from these countries are randomly selected to apply for diversity immigrant visas. Under the governing statutes and regulations, consular officials must issue those visas if the selected winners are statutorily eligible, are not inadmissible under 8 U.S.C. § 1182(a), and visas remain available for that particular fiscal year. However, absent a court order, the immigrant visas must be issued by no later than September 30, which is the end of the fiscal year, or the winners lose their slots. The diversity visa program for each fiscal year terminates at the end of the fiscal year, and new lottery winners are chosen for the next fiscal year. 3. An immigrant visa can be used to enter the United States as a lawful permanent resident (or “green card” holder) for up to six months after its issuance. But, like all visas, diversity visas are conditional and do not guarantee a right to enter: All visa holders must first be inspected and admitted at a port of entry. 4. On March 6, 2017, President Trump issued an Executive Order banning Iranian, Syrian, Sudanese, Yemeni, Somali, and Libyan nationals from entering the United States, for 90 days after the relevant part of the Order went into effect in late June 2017. The Executive Order
1

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 4 of 22
purportedly was issued under the authority of 8 U.S.C. § 1182(f), which provides the President the authority to “suspend the entry of” or “impose [restrictions] on the entry of” aliens under certain circumstances.
5. This case does not challenge the President’s power to issue the Executive Order. However, under the governing statutes, visa issuance and entry are distinct. Visa issuance and entry are handled by different executive agencies and components, and occur at different times. The Order did not expressly prohibit visa issuance.
6. Nevertheless, the State Department has adopted a policy directing consular officials to deny diversity visas to nationals from the countries barred from entry by the Executive Order. That policy violates statutes and regulations requiring the issuance of immigrant visas to diversity visa lottery winners who are statutorily eligible, and it incorrectly conflates the Executive Order’s ban on entry with a ban on visa issuance.
7. Plaintiffs and those similarly situated are citizens of one of the six nations covered by the Executive Order. They are eligible for a diversity visa and would have received a diversity visa, but for the government’s illegal decision to refuse to issue visas to individuals covered by the Executive Order’s prohibition on entry.
8. The consequences for Plaintiffs and others who are similarly situated is draconian and grossly unfair. Winning the diversity lottery spot is rare and precious: For the diversity visas to be issued in the current fiscal year, more than 19.3 million individuals and their immediate family members entered the lottery, from which fewer than 84,000 were chosen for the opportunity to apply for one of 50,000 visas.1 The entry prohibition in the Executive Order
1 U.S. Dep’t of State, Visa Bulletin for July 2016 (June 8, 2016), https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-july2016.html (lasted visited July 29, 2017). As the Department of State explains, more than 50,000
2

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 5 of 22
expires of its own force just days before the September 30 deadline for Plaintiffs to receive their immigrant visas. But the State Department has indicated that it anticipates reaching the 50,000visa cap, and therefore individuals previously refused because of the Executive Order—and who would have received a visa but for the Executive Order—will not have an opportunity to receive a visa, even after the Executive Order’s travel ban expires.
9. The Executive Order does not (and could not) require that senseless result. The Order does not instruct the State Department to deny diversity immigrant visas, nor does it explain why denying diversity immigrant visas is necessary, or even helpful, to effectuate a temporary entry ban.
10. Although other cases are currently pending that challenge the Executive Order’s suspension of entry, Plaintiffs do not challenge that suspension of entry here. Instead, Plaintiffs are simply asking that their visa applications be processed consistent with the statute and regulations, so that they can, if eligible, be issued visas before the September 30 deadline, or pursuant to a court order after the September 30 deadline. Plaintiffs do not seek an order permitting them to immediately enter the United States or striking down the Executive Order. Instead, once receiving visas, they would simply wait until the suspension on entry expired and would then seek entry.
11. The State Department’s policy imposes irreparable harm on Plaintiffs in violation of consular officials’ non-discretionary duty to issue visas to eligible applicants, without any justification.
applicants are selected because some lottery winners cannot or do not pursue their cases to visa issuance. See id.
3

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 6 of 22
PARTIES 12. Plaintiff Hamed Sufyan Othman Almaqrami is a Yemeni national who was selected as a diversity lottery winner on May 3, 2016. Mr. Almaqrami has a master’s degree in linguistics and is currently a Ph.D. student in linguistics at Annamalai University in India. 13. Plaintiff Aliakbar Nowzari Golsefid is an Iranian national who was selected as a diversity lottery winner in May 2016. 14. Plaintiff Masoumeh Fotohi is the wife of Aliakbar Nowzari Golsefid. 15. Plaintiff Behnam Nozari Golsefid is the son of Aliakbar Nowzari Golsefid and Masoumeh Fotohi. 16. Plaintiff Farzad Abdollahi Zadeh is an Iranian national who was selected as a diversity lottery winner in May 2016. 17. Plaintiff Zhreh Babadi is the wife of Farzad Abdollahi Zadeh. 18. Plaintiffs SZ and RZ are the 10 year old and six month old daughters of Plaintiff Farzad Abdollahi Zadeh. 19. Plaintiff Aiman Alsakkaf is a Yemeni national who was selected as a diversity lottery winner in July 2016. 20. Defendant Rex W. Tillerson is Secretary of State. He is sued in his official capacity. 21. Defendants John Does #1-50 are the consular officials employed by the U.S. Department of State who are responsible for issuing or refusing to issue diversity visas. Their identities are not publicly disclosed by the U.S. Department of State. They are sued in their official capacity.
JURISDICTION AND VENUE
4

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 7 of 22
22. This Court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1361. The Court has remedial authority pursuant to 28 U.S.C. § 1361, 28 U.S.C. § 2201, and 5 U.S.C. § 702.
23. Venue is proper pursuant to 28 U.S.C. § 1391(e)(1)(A) because Defendant Tillerson, in his official capacity as Secretary of State, resides in this District, and pursuant to 28 U.S.C. § 1391(e)(1)(B) because a substantial part of the events or omissions giving rise to the claim occurred in this District, namely, the formulation and promulgation of the policy under challenge.
FACTUAL ALLEGATIONS A. The Diversity Visa Program.
24. Congress adopted the diversity visa program, 8 U.S.C. § 1153(c), in order to provide immigration opportunities for people who live in countries with historically low rates of immigration to the United States. To be eligible for a diversity visa, an applicant must be a national of a country covered by the program, must have either a high school education or two years of qualifying work experience, see 8 U.S.C. § 1153(c)(2), and must not be inadmissible under 8 U.S.C. § 1182(a). Spouses and unmarried minor children of the applicant are entitled to the same status as the applicant. 8 U.S.C. § 1153(d). The diversity visa program is one of the few ways in which individuals who do not have family members in the United States nevertheless can immigrate.
25. For each fiscal year, the State Department conducts a lottery to award no more than 50,000 diversity visas from among the many millions of lottery entries it receives. The State Department then processes the winners’ applications for immigrant visas. The process requires the winners to submit certain documents and attend a consular interview. If a lottery
5

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 8 of 22
winner satisfies the eligibility criteria and is not inadmissible under 8 U.S.C. § 1182(a), and if visas remain available, then consular officials must issue an immigrant visa. See 8 U.S.C. § 1153(c)(1) (making the issuance of diversity visas mandatory for eligible qualified immigrants); 22 C.F.R § 40.6 (visas may only be refused on “a ground specifically set out in the law or implementing regulations”); 22 C.F.R. § 42.81(a) (consular official must either issue the visa or refuse it under 8 U.S.C. § 1182(a), which concerns grounds of inadmissibility, or 8 U.S.C. § 1201(g), which concerns eligibility).
26. If a lottery winner does not receive his or her visa by the end of the fiscal year (September 30), the winner loses his or her slot and must reenter the lottery.2 8 U.S.C. § 1154(a)(1)(I)(ii)(II).
27. Once issued, an immigrant visa can be used to enter the United States as a lawful permanent resident for up to six months after issuance, 8 U.S.C. § 1201(c)(1), but the visa does not by itself guarantee entry. See 8 U.S.C. § 1201(h). B. The Executive Order.
28. On March 6, 2017, President Trump issued an Executive Order purporting to suspend, for 90 days from the effective date, the entry into the United States of certain nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. See Exec. Order No. 13780, 82 Fed. Reg. 13209 (2017) (“Executive Order”). President Trump claimed statutory authority to do so pursuant to 8 U.S.C. §§ 1182(f) and 1185(a).3
2 A court, however, may order the government to issue diversity visas even after the September 30 deadline under its equitable powers. 3 Section 1182(f) provides: “Whenever 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, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens
6

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 9 of 22
29. The Executive Order was almost immediately enjoined in relevant part pending legal challenge. On June 26, 2017, the U.S. Supreme Court partially stayed the preliminary injunctions, allowing the Executive Order to become effective, except as to foreign nationals with a “bona fide relationship with a person or entity in the United States.” Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017) (per curiam). Thus, under the terms of the Executive Order and a memorandum subsequently issued by the President, the entry ban on nationals of the six countries without such bona fide relationships will remain in effect for 90 days, until September 24, 2017. See White House, Press Release, Presidential Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence (June 14, 2017), https://www.whitehouse.gov/the-press-office/2017/06/14/presidential-memorandum-secretarystate-attorney-general-secretary. C. The State Department’s Implementation of the Executive Order.
30. Following the Supreme Court’s order allowing the relevant provisions of the Executive Order to become effective in part, the State Department issued a cable to consular officials directing that diversity visas should be denied to persons subject to the Executive Order’s suspension on entry—even if the diversity visa applicant is otherwise eligible to receive the visa.
31. Specifically, the cable read as follows (emphasis added): 8. (SBU) For Diversity Visa (DV) applicants already scheduled for interviews falling after the E.O. implementation date of 8:00 p.m. EDT June 29, 2017, post should interview the applicants. Posts should interview applicants following these procedures:
any restrictions he may deem to be appropriate.” Section 1185(a) likewise speaks to the ability of an alien to “depart from or enter” the United States. Neither addresses visa issuance.
7

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 10 of 22

a.) Officers should first determine whether the applicant is eligible for the DV, without regard to the E.O. If the applicant is not eligible, the application should be refused according to standard procedures.

b.) If an applicant is found otherwise eligible, the consular officer will

need to determine during the interview whether the applicant is exempt

from the E.O.’s suspension of entry provision (see paragraphs 10-13

[addressing inter alia the Supreme Court’s bona fide relationship

standard]), and if not, whether the applicant qualifies for a waiver

(paragraphs 14 and 15 [addressing a discretionary waiver provision of the

Executive

Order]).

c.) DV applicants who are not exempt from the E.O.’s suspension of entry provision and who do not qualify for a waiver should be refused 221(g) and the consular officer should request an advisory opinion from VO/L/A following current guidance in 9 FAM 304.3-1.

Based on the Department’s experience with the DV program, we anticipate that very few DV applicants are likely to be exempt from the E.O.’s suspension of entry or to qualify for a waiver. [Consular Affairs] will notify DV applicants from the affected nationalities with scheduled interviews of the additional criteria to allow the potential applicants to determine whether they wish to pursue their application.

9. (SBU) The Kentucky Consular Center (KCC) will continue to schedule additional DV-2017 appointments for cases in which the principal applicant is from one of these six nationalities. While the Department is mindful of the requirement to issue Diversity Visas prior to the end of the Fiscal Year on September 30, direction and guidance to resume normal processing of visas following the 90-day suspension will be sent [in a separate cable].

32. The State Department’s reference in paragraph 8(c) of the cable to “221(g)” is a reference to 8 U.S.C. § 1201(g), which provides: “No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law, (2) the application fails to comply with the provisions of this chapter, or the regulations issued thereunder, or (3) the

8

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 11 of 22
consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law.” The State Department’s policy, therefore, is that the Executive Order makes individuals covered by the Order ineligible to receive a diversity visa.
33. The State Department’s policy is illegal, and consular officials’ refusal to issue a visa to otherwise eligible applicants violates their non-discretionary duty. Consular officials may refuse a visa “only upon a ground specifically set out in the law or implementing regulations.” 22 C.F.R. § 40.6. However, the Executive Order does not make diversity visa applicants ineligible to receive a visa. Rather, the statutory authority cited by the President in promulgating the Executive Order concerns entry into the United States, not visa issuance. Under the Immigration and Nationality Act, possessing a visa does not automatically entitle one to entry; and conversely, being subject to a temporary suspension of entry does not make one ineligible to receive a visa. Nor is the issuance of a visa during a temporary suspension of entry pointless, as the visa could be used to enter the United States once the temporary suspension on entry is lifted.
34. The State Department’s policy will have draconian consequences, and impose irreparable harm, on otherwise-eligible diversity visa applicants to whom the Executive Order applies. Although the Executive Order’s six-country suspension of entry will expire on September 24, 2017, the State Department has admitted that it is extremely unlikely—if not impossible—that these individuals will be able to have their visa applications reconsidered, and their visas issued, prior to the end of the fiscal year on September 30, 2017. And, absent equitable relief by this Court, if their visas are not issued by September 30, 2017, their slot in the diversity visa program will expire and they will need to reenter the lottery—with a vanishingly small chance of winning a second time.
9

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 12 of 22
D. Plaintiffs-Petitioners. 35. Plaintiffs are diversity visa lottery winners, and their immediate family members,
from countries covered by the Executive Order and subject to its suspension on entry. But for the State Department’s cable illegally applying the Executive Order to ban visa issuance, they would have received diversity visas.
36. Mr. Almaqrami, Mr. Golsefid, Mr. Zadeh and Mr. Alsakkaf entered the 2017 diversity visa lottery. In May 2016 (for Mr. Almaqrami, Mr. Golsefid, and Mr. Zadeh) or July 2016 (for Mr. Alsakkaf), they each received a letter from the United States Department of State stating that they had been randomly selected as part of the diversity visa program.
37. Mr. Almaqrami had his interview on May 25, 2017. He traveled from India, where he is living for his doctoral studies, to Yemen to retrieve all of the necessary documents, and then came back to India for additional documents. He then went to Malaysia for his interview. He did not understand why he was not issued a visa, until he received a letter from the State Department on July 12, 2017, stating: “a visa applicant from one of the six affected countries who does not have a credible claim of a bona fide relationship with a person (i.e., a close familial relationship) in the United States or of a bona fide relationship with an entity in the United States (which relationship is formal, documented, and formed in the ordinary course, rather than to evade the Executive Order) is ineligible for a visa.” Mr. Almaqrami does not have any family in the United States, nor does he currently have a job offer or other connections to an organization in the United States that would qualify him for an exception to the Executive Order under the Supreme Court’s “bona fide relationship” standard.
38. Mr. Golsefid had his interview in December 2016. On June 20, 2017, he received
10

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 13 of 22
an email from the U.S. Embassy stating that the administrative processing in his case was complete. He and his family purchased plane tickets to the United States and were scheduled to travel on July 17, 2017.
39. On July 7, 2017, Mr. Golsefid received a letter from the U.S. Embassy informing him that the State Department had begun implementing the Executive Order, and that “[t]he Executive Order prohibits the issuance of U.S. visas to nationals of Iran.” On August 24, 2017, he received an email stating that “As of today, you are ineligible to receive a diversity visa per Executive Order 13780. Therefore, the status of your application is currently refused.” The August 24 email gave Mr. Golsefid until September 13, 2017 to demonstrate a bona fide relationship with a U.S. person or entity to establish an exception to the Executive Order, but Mr. Golsefid was unable to do so. Accordingly, he remains ineligible for a visa under the Executive Order.
40. Mr. Zadeh has his interview on May 4, 2017 and received a letter stating that he was being placed in administrative processing. On August 15, 2017, he received an email stating that administrative processing in his case was complete and asking him to demonstrate a bona fide relationship with a U.S. person or entity to establish an exception to the Executive Order, but Mr. Zadeh was unable to do so. Accordingly, he remains ineligible for a visa under the Executive Order.
41. Mr. Alsakkaf had his interview on July 27, 2017. At his interview, he was asked for additional information, which he provided on July 29, 2017, as well as additional documentation from the government of the United Arab Emirates, which was submitted on August 25, 2017. On September 12, 2017, Mr. Alsakkaf received a letter from the U.S. embassy
11

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 14 of 22
stating that he had been refused a visa. The letter did not indicate that any further administrative processing was needed; rather, the sole ground for the refusal was the Executive Order.
42. But for the State Department’s illegal implementation of the Executive Order, Plaintiffs would have received diversity visas. Plaintiffs are statutorily eligible to receive the visa. Mr. Almaqrami has a master’s degree in linguistics and is currently a Ph.D. student in linguistics at Annamalai University in India. Mr. Golsefid has a bachelor’s degree and 27 years of work experience in the business sector. Mr. Zadeh has a bachelor’s degree and 14 years of experience as a civil engineer. Mr. Alsakkaf has a high school diploma and works in international direct marketing. They do not fall within any of the grounds of inadmissibility under 8 U.S.C. § 1182(a). Nor do Masoumeh Fotohi, Mr. Golsefid’s spouse, their child Behnam Nozari Golsefid, Mr. Zadeh’s spouse, Zhreh Babadi, or SZ and RZ, their 10 year old and six month old daughters. Indeed, Mr. Golsefid and his family and Mr. Zadeh and their family have been told that administrative processing was complete. Mr. Golsefid and their family had purchased plane tickets to travel to the United States. However, based on its illegal implementation of the Executive Order, the State Department has refused to issue their visas. Accordingly, Plaintiffs petition for a writ of mandamus directing consular officials to issue diversity visas to applicants who are statutorily eligible to receive them; for declaratory relief declaring that the State Department’s application of the Executive Order to refuse diversity visas to otherwise-eligible applicants is arbitrary, capricious, an abuse of discretion, and in violation of law; and for injunctive relief directing the State Department and its employees to place Plaintiffs in the same position they would have been in, but for the State Department’s illegal implementation of the Executive Order.
CLASS ACTION ALLEGATIONS
12

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 15 of 22
43. Plaintiffs reallege the foregoing allegations as if set forth fully herein. 44. Plaintiffs bring this class action on behalf of themselves and all others similarly situated for the purpose of asserting claims alleged in this Petition and Complaint on a common basis. 45. Plaintiffs propose the following class:
a. The proposed class is defined under Rule 23(b)(1)(A), (b)(2), and (b)(3) as all persons who: (a) have been selected, or are the spouse or child of someone who has been selected, in the diversity visa lottery for FY2017 and has submitted an application to receive a diversity immigrant visa, but have not yet received a visa; and (b) are subject to the Executive Order and do not qualify for the “bona fide relationship” exception, and therefore are prohibited from entering the United States until the Executive Order expires in late September 2017.
b. There are likely hundreds of members of the proposed class. The total number of class members is such that the joinder of claims of all class members would be impracticable.
46. Plaintiffs propose the following subclass A: a. The proposed subclass is defined under Rule 23(b)(1)(A), (b)(2), and (b)(3) as all persons who fall within the proposed class and who have cleared administrative processing, but were refused a visa based on the Executive Order.
13

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 16 of 22
b. There are likely hundreds of members of the proposed subclass A. The total number of class members is such that the joinder of claims of all subclass members would be impracticable.
47. Plaintiffs propose the following subclass B: a. The proposed subclass B is defined under Rule 23(b)(1)(A), (b)(2), and (b)(3) as all persons who fall within the proposed class, who have cleared administrative processing, and who were the subject of an Advisory Opinion concerning the applicability of the Executive Order, that served as the basis for denying their application for a visa. b. The government has admitted that up to 103 persons fall within this subclass.
48. Plaintiffs’ claims are typical of the claims of the proposed class and subclasses, and Plaintiffs will fairly and adequately protect the interests of the proposed class and subclass. Plaintiffs have no relevant conflicts of interest with other members of the proposed class and subclass and have retained competent and experienced counsel.
49. There are multiple questions of law and fact common to the members of the proposed class. These common questions include, but are not limited to, whether consular officials have a non-discretionary duty to issue immigrant visas to diversity visa applicants who are statutorily eligible to receive them, notwithstanding the Executive Order; and whether the State Department order purporting to direct that such visas be refused is arbitrary, capricious, or otherwise in violation of law.
50. Individual actions in this case would create a risk of inconsistent adjudications that would result in incompatible standards of conduct for the government. Some diversity visa
14

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 17 of 22
plaintiffs might prevail in their challenge and escape the effect of the policy while other might remain subject to it.
51. The government has created a policy that applies to the class as a whole on grounds that apply generally to them, namely their nationality in one of the six identified countries. As a result, the requested injunctive, declaratory and other relief is appropriate for the class as a whole to eliminate the illegal effects of the policy.
52. Common questions of law predominate in this case. The legality of the policy is the central issue in this case and applies identically to all class members. A class action is also superior to any other method for fairly and efficiently adjudicating the controversy. Individual actions by particular members of the class are unlikely to have particular interest in controlling the litigation, this district court is a particularly appropriate forum given the nature of the legal issues and the identity of the parties, and the class action will not be difficult to manage given the limited scope of the issues involved.
CAUSES OF ACTION COUNT ONE (Administrative Procedure Act) 53. Plaintiffs reallege the foregoing allegations as if set forth fully herein. 54. The State Department’s policy, directing consular officials to deny diversity immigrant visas to statutorily eligible applicants whose entry to the United States would temporarily be prohibited under the Executive Order, is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). 55. The State Department policy is final agency action. It is the consummation of the State Department’s process on this matter. The agency has nothing further to do in order to issue direction to consular officials. Furthermore, rights and obligations have been determined by the
15

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 18 of 22
policy and legal consequences will flow from it. The agency has denied and will continue to refuse to issue visas as a result of its policy purporting to implement the Executive Order.
56. Under 22 C.F.R. § 40.6, a consular official may refuse a visa “only upon a ground specifically set out in the law or implementing regulations.”
57. Under 8 U.S.C. § 1152(a)(1)(A), consular officials are prohibited from discriminating against any individual in the issuance of an immigrant visa because of the person’s nationality, except as expressly authorized by Congress.
58. The Executive Order does not purport to prohibit the issuance of diversity visas that must be issued by September 30. Rather, it imposes a temporary bar on entrance for certain nationals of six countries, which is due to expire in late September 2017.
59. Accordingly, the State Department policy directing consular officials to refuse immigrant visas to individuals who are statutorily eligible to receive a visa, on the ground that they are covered by the Executive Order and so temporarily prohibited from entering the United States, is not authorized by any governing law, and is arbitrary, capricious, an abuse of discretion, and in violation of law.
COUNT TWO (Mandamus) 60. Plaintiffs reallege the foregoing allegations as if set forth fully herein. 61. Defendants/Respondents John Does #1-50, who are the unknown consular officials responsible for processing and issuing diversity visas, have a clear and nondiscretionary duty to adjudicate applications and issue visas to individuals who are eligible to receive them and who are not inadmissible under 8 U.S.C. § 1182(a), so long as visas remain available.
16

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 19 of 22
62. Under 22 C.F.R. § 42.81(a), a “consular officer must either issue or refuse the visa . . . .” Moreover, “[e]very refusal must be in conformance with the provisions of 22 C.F.R. 40.6.” Id.
63. Under 22 C.F.R. § 40.6, a consular official may refuse a visa “only upon a ground specifically set out in the law or implementing regulations.”
64. Under 8 U.S.C. § 1152(a)(1)(A), consular officials are prohibited from discriminating against any individual in the issuance of an immigrant visa because of the person’s nationality, except as expressly authorized by Congress.
65. The Executive Order does not purport to prohibit the issuance of diversity visas that must be issued by September 30. It simply issues a temporary bar on entrance for certain nationals of six countries, which is due to expire in late September 2017.
66. Consular official Defendants have a mandatory duty to adjudicate diversity immigrant visa applications and issue diversity immigrant visas to statutorily eligible individuals, and there is no legal bar to doing so. Accordingly, Plaintiffs have a clear and indisputable right to relief, and the consular official Defendants have a clear and non-discretionary duty to act.
67. No alternative remedy exists to compel action by the consular official Defendants John Does #1-50.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully prays that this Court: A. Declare that the State Department’s policy of deeming visa applicants from Iran, Syria, Sudan, Somalia, Yemen, and Libya ineligible for a diversity visa on account of the Executive Order, even when those applicants are statutorily eligible, is arbitrary, capricious, and otherwise in violation of law;
17

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 20 of 22

B. Enjoin the State Department and its employees, officers, and agents from

implementing the policy of refusing diversity visas to applicants from Iran, Syria, Sudan,

Somalia, Yemen, and Libya, notwithstanding these applicants’ statutory eligibility;

C. Issue an injunction directing Defendants to place Plaintiffs in the same position

they would have been but for the government’s illegal conduct, including directing the issuance

of visas that would have been issued but for the State Department’s illegal implementation of the

Executive Order;

D. Issue a writ of mandamus to Defendants John Does #1-50 directing that these

consular officials adjudicate diversity immigrant visa applications and issue diversity immigrant

visas to visa applicants from Iran, Syria, Sudan, Somalia, Yemen, and Libya who are statutorily

eligible to receive a visa before September 30, 2017; and

E. Award any other relief the Court deems just and proper.

September 21, 2017

Respectfully submitted,

/s/ Matthew E. Price

Samer E. Khalaf (pro hac vice) Yolanda Rondon AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE 1705 DeSales Street, N.W., Suite 500 Washington, D.C. 20036 Tel: 202-244-2990 Skhalaf@adc.org

Matthew E. Price (DC Bar #996158) Max J. Minzner (pro hac vice) JENNER & BLOCK LLP 1099 New York Ave. NW Suite 900 Washington, DC 20001 Tel. 202-639-6000 Fax: 202-639-6066 Email: mprice@jenner.com
mminzner@jenner.com

Karen C. Tumlin Esther Sung NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd, Suite 1600 Los Angeles, CA 90010 (213) 639-3900 tumlin@nilc.org

Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 ojadwat@aclu.org

18

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 21 of 22

Justin B. Cox NATIONAL IMMIGRATION LAW CENTER PO Box 170208 Atlanta, GA 30317 (678) 279-5441 cox@nilc.org
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 4301 Connecticut Avenue, NW, Suite 434 Washington, DC 20008 202-457-0800 aspitzer@acludc.org

Cody H. Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 cwofsy@aclu.org samdur@aclu.org

Counsel for Plaintiffs

19

Case 1:17-cv-01533-TSC Document 46 Filed 09/22/17 Page 22 of 22 CERTIFICATE OF SERVICE
I certify that, on September 21, 2017, I served the foregoing First Amended Petition for Mandamus and First Amended Complaint for Injunctive and Declaratory Relief on all counsel of record by filing it via this Court’s CM/ECF system.
/s/ Matthew E. Price
20

 
 Case 1:17-cv-01533-TSC Document 50 Filed 09/29/17 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.K., et al., Plaintiffs,
v.
REX W. TILLERSON, et al., Defendants.

)

)

)

)

)

)

Civil Action No. 17-cv-1533 (TSC)

)

)

)

)

)

)

ORDER

For the reasons set forth in the accompanying Memorandum Opinion, Plaintiffs’

Motion for Preliminary Injunction and Emergency Motion for Mandamus Relief (ECF

No. 2) is GRANTED in part and DENIED in part. Defendants are ordered to: (1)

report, by October 15, the number of visa numbers returned unused for fiscal year 2017;

and (2) hold those visa numbers to process Plaintiffs’ visa applications in the event the

Supreme Court finds the Executive Order to be unlawful.

Date: September 29, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

1

 
 Case 1:17-cv-01533-TSC Document 53 Filed 10/20/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

HAMED SUFYAN OTHMAN

)

ALMAQRAMI, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

REX W. TILLERSON, in his official

)

capacity as Secretary of State, et al.,

)

)

Defendants.

)

)

Civil Action No. 1:17-cv-01533-TSC

DEFENDANTS’ MOTION TO DISMISS

Under Federal Rules of Civil Procedure 12(b)(1) and (6), Defendants Secretary of State

Rex W. Tillerson and John Does #1–#50, in their official capacities (collectively, “Defendants”

or “the Government”), hereby move this Court to dismiss Plaintiffs’ Amended Complaint

because this Court no longer has jurisdiction over Plaintiffs’ claims and because Plaintiffs have failed to state a claim upon which relief may be granted. The grounds for this motion are set

forth in the accompanying memorandum of points and authorities. A proposed order is attached.

Dated: October 20, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

WILLIAM C. PEACHEY Director

GISELA A. WESTWATER Assistant Director

EREZ REUVENI Senior Litigation Counsel

Case 1:17-cv-01533-TSC Document 53 Filed 10/20/17 Page 2 of 2
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 Facsimile: (202) 305-7000 e-Mail: joshua.press@usdoj.gov
STEVEN A. PLATT Trial Attorney Attorneys for Defendants

 
 Case 1:17-cv-01533-TSC Document 53 Filed 10/20/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

HAMED SUFYAN OTHMAN

)

ALMAQRAMI, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

REX W. TILLERSON, in his official

)

capacity as Secretary of State, et al.,

)

)

Defendants.

)

)

Civil Action No. 1:17-cv-01533-TSC

DEFENDANTS’ MOTION TO DISMISS

Under Federal Rules of Civil Procedure 12(b)(1) and (6), Defendants Secretary of State

Rex W. Tillerson and John Does #1–#50, in their official capacities (collectively, “Defendants”

or “the Government”), hereby move this Court to dismiss Plaintiffs’ Amended Complaint

because this Court no longer has jurisdiction over Plaintiffs’ claims and because Plaintiffs have failed to state a claim upon which relief may be granted. The grounds for this motion are set

forth in the accompanying memorandum of points and authorities. A proposed order is attached.

Dated: October 20, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

WILLIAM C. PEACHEY Director

GISELA A. WESTWATER Assistant Director

EREZ REUVENI Senior Litigation Counsel

Case 1:17-cv-01533-TSC Document 53 Filed 10/20/17 Page 2 of 2
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 Facsimile: (202) 305-7000 e-Mail: joshua.press@usdoj.gov
STEVEN A. PLATT Trial Attorney Attorneys for Defendants

 
 Case 1:17-cv-01533-TSC Document 53 Filed 10/20/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

HAMED SUFYAN OTHMAN

)

ALMAQRAMI, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

REX W. TILLERSON, in his official

)

capacity as Secretary of State, et al.,

)

)

Defendants.

)

)

Civil Action No. 1:17-cv-01533-TSC

DEFENDANTS’ MOTION TO DISMISS

Under Federal Rules of Civil Procedure 12(b)(1) and (6), Defendants Secretary of State

Rex W. Tillerson and John Does #1–#50, in their official capacities (collectively, “Defendants”

or “the Government”), hereby move this Court to dismiss Plaintiffs’ Amended Complaint

because this Court no longer has jurisdiction over Plaintiffs’ claims and because Plaintiffs have failed to state a claim upon which relief may be granted. The grounds for this motion are set

forth in the accompanying memorandum of points and authorities. A proposed order is attached.

Dated: October 20, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

WILLIAM C. PEACHEY Director

GISELA A. WESTWATER Assistant Director

EREZ REUVENI Senior Litigation Counsel

Case 1:17-cv-01533-TSC Document 53 Filed 10/20/17 Page 2 of 2
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 Facsimile: (202) 305-7000 e-Mail: joshua.press@usdoj.gov
STEVEN A. PLATT Trial Attorney Attorneys for Defendants

 
 Case 1:17-cv-01533-TSC Document 59 Filed 12/12/17 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

HAMED SUFYAN OTHMAN

)

ALMAQRAMI, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

REX W. TILLERSON, in his official

)

capacity as Secretary of State, et al.,

)

)

Defendants.

)

)

Civil Action No. 1:17-cv-01533-TSC

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ STATUS UPDATE Defendants write in response to Plaintiffs’ Status Update (ECF No. 58), which provides two misleading statistics. First, Defendants previously informed the Court that the “total number of diversity visas

that were actually issued for fiscal year 2017 was 49,976.” (ECF No. 52-1 at ¶ 5). Citing

Defendants’ website, Plaintiffs now claim that Defendants’ report was inaccurate, and that only 49,067 diversity visas were issued in fiscal year 2017. (ECF No. 57 at 2 (citing Table III, Immigrant Visas Issued (by Foreign State of Chargeability or Place of Birth, Fiscal Year 2017, U.S. Dep’t of State, Bureau of Consular Affairs, https://travel.state.gov/content/dam/visas/

Statistics/AnnualReports/FY2017AnnualReport/FY17AnnualReport-TableIII.pdf)). To the

contrary, Defendants accurately reported the number of individuals who were issued diversity visas and/or became lawful permanent residents of the United States (also known as “LPRs” and “green card holders”) under the diversity program. Plaintiffs are pointing to the wrong statistic.

1

Case 1:17-cv-01533-TSC Document 59 Filed 12/12/17 Page 2 of 6
The problem with Plaintiffs’ statistic is that it is underinclusive, counting only the number of diversity visas issued for fiscal year 2017. While the parties and the Court have referred in writing and during oral argument to an annual statutory cap of 50,000 diversity visas, more precisely that cap actually limits the number of aliens that may obtain immigrant status through the diversity visa program each year. 8 U.S.C. § 1151(e) (“The worldwide level of diversity immigrants is equal to [50,000] for each fiscal year.” (emphasis added)). But being admitted to the United States on an immigrant visa is not the only path to becoming an immigrant. E.g., id. § 1255. As Defendants previously explained, an alien selected in the diversity lottery may seek to immigrate through one of two routes: either by applying for a visa from the Department of State and then being admitted to the United States if he or she is located abroad, or by applying for adjustment of status through U.S. Citizenship and Immigration Services (“USCIS”), a component of the Department of Homeland Security, if the alien is already present within the United States. Decl. of Charles Oppenheim (ECF No. 47-2 at ¶ 3); see 8 U.S.C. § 1255(a).1
The 50,000 cap for diversity immigrants encompasses both groups of aliens. See 8 U.S.C. § 1151(e). A large number of diversity-lottery selectees are already present in the United States when selected and, rather than leave the United States to process abroad, they apply to adjust status through the diversity lottery program, drawing from the same limited number of diversity visas available for allocation to individuals abroad. See id. § 1255(a)(2)–(3) (conditioning the adjustment of a domestically-present alien’s status on the availability of a visa number, even
1 Although USCIS refers to the “diversity visa” process in its public-facing materials, USCIS does not issue visas. See, e.g., Green Card Through the Diversity Immigrant Visa Program, U.S. Citizenship & Immigrant Servs., https://www.uscis.gov/greencard/diversity-visa (last visited Dec. 12, 2017).
2

Case 1:17-cv-01533-TSC Document 59 Filed 12/12/17 Page 3 of 6
though such alien does not need, and will not actually receive, a visa). The need to coordinate the two agencies’ issuance of diversity benefits and ensure they collectively stay under the statutory cap is part of the reason why the Department of State allocates diversity-visa numbers. See (ECF No. 42-3 at ¶¶ 3–4, 7–8).
Because Plaintiffs are all abroad, only visa applications have been at issue in this case. Nevertheless, Plaintiffs were competing during fiscal year 2017 with diversity-lottery selectees in the United States who were applying to adjust status without the need for a visa.
This background explains the supposed discrepancy between the figure Defendants reported to the Court and the number Plaintiffs found online. The title of the chart cited by Plaintiffs is “Immigrant Visas Issued,” and that chart’s “Worldwide Grant Total[]” of 49,067 refers to the number of diversity visas issued. Because that chart does not include aliens who became diversity immigrants by adjusting status through USCIS, it does not account for the total number of aliens who became diversity immigrants in fiscal year 2017 and thus does not completely answer the question of whether the statutory cap of 50,000 was reached.
On the same webpage cited by Plaintiffs, the Department of State has posted the total number of diversity immigrants – reflecting those who adjusted status within the United States as well as those who obtained visas abroad – in a separate, broader chart entitled “Immigrant Number Use for Visa Issuances and Adjustments of Status in the Diversity Immigrant Category.” Table IV, Immigrant Number Use for Visa Issuances and Adjustments of Status in the Diversity Immigrant Category, Fiscal Years 2008–2017, U.S. Dep’t of State, Bureau of Consular Affairs, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2017AnnualReport/FY17 AnnualReport-TableVII.pdf (emphasis added) (also attached as Ex. A). That chart lists the “Grand Total[]” of diversity immigrants in fiscal year 2017 as 49,976—the same exact number
3

Case 1:17-cv-01533-TSC Document 59 Filed 12/12/17 Page 4 of 6
Defendants previously reported to the Court. Id. at 6. In other words, Defendants provided visa numbers for visa issuance and adjustment of status for 49,976 diversity immigrants, or just 24 short of the statutory maximum.
The second figure cited by Plaintiffs’ Status Report is 27,241, the number of diversityvisa numbers for fiscal year 2017 that were returned unused over the fiscal year. Plaintiffs claim, “Because over 27,000 visa numbers were returned unused, a sufficient quantity of visas exist to issue an immigrant visa to each member of the proposed class.” (ECF No. 57 at ¶ 2).
As explained above and in past briefing, the diversity-visa number system is simply an administrative tool to ensure as many qualified aliens as possible become diversity immigrants without exceeding the statutory cap. Decl. of Charles Oppenheim (ECF No. 47-2 at ¶ 4). Many more visa numbers are allocated than Defendants anticipate will be used such that diversity-visa numbers are regularly returned. Id. A lottery selectee who is found eligible for a visa needs more than just a diversity-visa number to become a diversity immigrant; the fiscal year deadline must not have passed. 8 U.S.C. §§ 1151(e), 1154(a)(1)(I)(ii). Because fiscal year 2017 has ended, Plaintiffs thus cannot become diversity immigrants through that year’s program. See id. § 1154(a)(1)(I)(ii)(I); see generally Defs.’ Mot to Dismiss (ECF No. 53). But even if Plaintiffs could somehow surmount the statute’s clear language on that point, the number of fiscal year 2017 diversity-visa numbers available to Plaintiffs would be the total number of possible diversity immigrants, 50,000, minus the number of aliens who became diversity immigrants, 49,976. That would leave only 24 visas or opportunities to adjust status – not 27,241. The latter figure is thus irrelevant to whether Plaintiffs are currently eligible for diversity visas (which they are not). The number’s only relevance is to show that tens of thousands of individuals are in the position of Plaintiffs – diversity visa selectees who, due to the numerical and timing limits, were
4

Case 1:17-cv-01533-TSC Document 59 Filed 12/12/17 Page 5 of 6

unable to apply for or be issued a diversity visa. Preferring Plaintiffs over those many other disappointed selectees would be inappropriate and unwarranted.

Dated: December 12, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
CATHERINE H. DORSEY Attorney, Appellate Staff
WILLIAM C. PEACHEY Director, Office of Immigration Litigation District Court Section
GISELA A. WESTWATER Assistant Director
By: /s/ Steven A. Platt STEVEN A. PLATT Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4074 Email: steven.a.platt@usdoj.gov
JOSHUA S. PRESS Trial Attorney
Attorneys for Defendants

5

Case 1:17-cv-01533-TSC Document 59 Filed 12/12/17 Page 6 of 6 CERTIFICATE OF SERVICE
I hereby certify that on December 12, 2017, I electronically filed this document with the Clerk of the Court by using the CM/ECF system, which will provide electronic notice and an electronic link to this document to all attorneys of record.
By: /s/ Steven A. Platt STEVEN A. PLATT
6

Case 1:17-cv-01533-TSC Document 59-1 Filed 12/12/17 Page 1 of 7
EXHIBIT
A

Case 1:17-cv-01533-TSC Document 59-1 Filed 12/12/17 Page 2 of 7

Table VII Immigrant Number Use for Visa Issuances and Adjustments of Status in the Diversity Immigrant
Category Fiscal Years 2008-2017

Foreign State

2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Africa
Algeria Angola Benin Botswana Burkina Faso Burundi Cabo Verde Cameroon Central African Republic Chad Comoros Congo, Dem. Rep. of the Congo, Rep. of the Cote d'Ivoire Djibouti Egypt Equatorial Guinea Eritrea Ethiopia Gabon Gambia, The Ghana Guinea Guinea-Bissau Kenya Lesotho Liberia Libya Madagascar Malawi Mali Mauritania Mauritius Morocco
Western Sahara TOTAL Mozambique Namibia Niger Nigeria Rwanda Sao Tome and Principe Senegal Seychelles

823 4
183 10
117 9 0
1,190 0 7 1
511 43
194 15
3,310 1
302 3,549
18 7
1,868 109 0
2,187 0
580 23 13 20 34 3 22
2,129 0
2,129 0 0
42 3,425
44 0
104 0

798 14
198 0
92 22
8 1,530
3 10
2 601
20 215
11 3,651
0 392 3,690
5 26 1,912 86
0 2,365
0 831
56 27 13 43
8 21 2,004
0 2,004
1 10 21 3,275 32
0 163
3

797 6
223 9
109 42 0
1,581 11 6 5
924 34
230 9
3,253 2
368 3,774
7 15 2,660 268
0 2,420
1 848
70 15 17 38
2 20 1,782
0 1,782
3 0 20 2,834 65 0 128 0

846 15
220 5
117 28 10
1,706 2
16 2
1,522 45
297 18
3,268 0
381 3,536
7 14 2,460 185
1 1,918
0 1,003
44 17 13 23 12 24 987
0 987
0 4 20 2,810 64 0 128 0

343 7
82 0
103 11 0
847 0 3 0
1,221 12
156 8
2,013 0
144 1,419
10 11 1,689 113
0 752
4 786
60 3 1
20 3 7
376 0
376 2 2 3
1,887 43 0 51 1

1,058 13
230 1
223 28 7
1,619 3 10 1
2,235 47
325 18
3,383 0
245 2,393
6 11 1,895 257 7 1,281 0 1,231 82 23 16 29 7 4 894 0 894 0 7 18 3,274 158 0 91 0

971 10
182 2
120 37 2
1,289 1 9 0
2,442 55
376 13
3,500 0
173 2,543
18 7
1,460 264 0
1,216 3
1,754 51 17 15 21 0 6
864 0
864 5 0
18 2,467
139 0
109 0

1,093 8
193 4
122 47 12
1,455 3
15 0
2,641 49
377 18
3,456 0
186 2,469
12 13 526 262
2 903
0 1,744
72 9
11 23
6 16 912
0 912
1 7 15 199 0 104 3

1,277 37
282 1
132 64 0
1,625 8 18 0
2,778 50
510 33
2,855 0
149 2,143
9 6 432 293 0 1,116 0 1,553 127 29 0 39 6 11 1,115 0 1,115 0 3 15 242 0 139 0

996 12 237
3 138 75
2 1,214
2 10
1 2,669
42 442 32 3,580
0 81 2,560 13 15 803 205
1 1,014
0 997 115
2 10 15 13
2 1,080
0 1,080
3 5 6 161 0 98 0

Case 1:17-cv-01533-TSC Document 59-1 Filed 12/12/17 Page 3 of 7

Table VII Immigrant Number Use for Visa Issuances and Adjustments of Status in the Diversity Immigrant
Category Fiscal Years 2008-2017

Foreign State
Sierra Leone Somalia South Africa South Sudan Sudan Swaziland Tanzania Togo Tunisia Uganda Zambia Zimbabwe

2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

438 547 314 317 287 719 449 354 383 340

40 70 71 52 28 78 46 59 104 56

235 301 303 309 225 319 217 197 182 215

-

-

-

0

0

0

0

1 11

6

502 592 557 569 308 436 965 1,191 1,833 1,174

0

2

0

3

1

0

0

0

5

0

72 137 65 81 62 51 28 60 32 46

469 483 507 526 281 514 565 547 688 504

43 53 68 42 26 49 40 38 100 63

152 170 158 211 111 204 184 171 166 92

65 38 41 48 18 39 18 33 20 17

47 96 65 89 42 68 32 47 85 44

Africa Total

22,960 24,648 24,745 24,015 13,582 23,607 22,703 19,686 20,706 19,211

Asia

Afghanistan Bahrain Bangladesh Bhutan Brunei Burma Cambodia China - Taiwan born Hong Kong S.A.R. Indonesia Iran Iraq Israel Japan Jordan Korea, North Kuwait Laos Lebanon Malaysia Maldives Mongolia Nepal Oman Qatar Saudi Arabia Singapore Sri Lanka Syria Thailand

32 0
2,286 7 1
113 92
275 48
156 841
88 47 282 25
0 22
0 77 39
0 199 2,073
5 1 29 21 466 40 45

46 4
2,663 5 0
371 120 251
32 122 1,117
50 43 207 95
0 10
1 83 30
0 129 1,615
1 0 37 14 548 53 49

66 1
3,017 0 0
282 132 231
23 122 1,854
37 30 199 72
0 29
3 46 41
0 108 1,936
2 0 34 11 441 37 32

25 2
3,090 4 1
253 168 214
27 89 2,023 57 41 177 87
0 25
0 56 48
0 209 2,017
0 0 41 12 336 67 36

43 10 295
4 0 197 188 158 10 100 2,428 36 45 216 62 0 31 0 94 27 0 91 1,953 2 3 56 14 217 72 22

59 4 8 1 267 399 160 40 66 3,802 66 74 287 122 0 66 2 87 20 0 116 3,377 1 14 88 6 296 91 31

95 2 7 1
200 334 215
46 68 2,386 49 58 269 181
0 58
0 58 38
0 79 3,504
2 15 109 32 301 138 19

28 2 1 0
88 152 103
34 44 2,661 23 20 143 72
0 29
0 52 14
0 55 3,370
1 15 89
2 201 134
26

192 2 9 0
140 266 167
55 45 2,788 146 35 194 176 0 59 0 72 48 0 157 3,247 4 16 124 12 324 164 31

144 1 7 0
148 198 160 18 41 2,106 150 34 117 96
0 45
0 41 30
0 97 3,477
6 9 111 9 160 128 19

Case 1:17-cv-01533-TSC Document 59-1 Filed 12/12/17 Page 4 of 7

Table VII Immigrant Number Use for Visa Issuances and Adjustments of Status in the Diversity Immigrant
Category Fiscal Years 2008-2017

Foreign State
Timor-Leste United Arab Emirates Yemen

2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

0

1

0

0

0

0

0

0

0

0

3 11

5 22 41 40 36 40 28 31

22 51 33 40 66 195 200 171 397 267

Asia Total

7,335 7,759 8,824 9,167 6,481 9,785 8,500 7,570 8,898 7,650

Europe

Albania Andorra Armenia Austria Azerbaijan Belarus Belgium Bosnia and Herzegovina Bulgaria Croatia Cyprus Czech Republic Denmark
Faroe Islands Greenland TOTAL Estonia Finland France French Guiana French Polynesia French Southern and Antarctic Lands Guadeloupe Martinique New Caledonia Reunion St. Barthelemy Saint Martin St. Pierre and Miquelon Wallis and Futuna TOTAL Georgia Germany Greece Hungary Iceland Ireland Italy Kazakhstan

2,057 2,033 1,645 965 528 994 1,571 1,910 1,506 2,436

0

0

0

0

0

0

0

2

0

0

837 950 1,001 1,013 644 903 1,272 1,556 1,000 1,566

30 54 56 69 34 42 24 48 10 34

163 217 207 222 149 190 190 289 204 434

769 780 734 684 285 848 844 868 568 801

32 39 54 26 47 39 24 34 13 42

31 62 37 33 44 30 39 77 48 84

1,093 753 571 653 456 965 1,026 834 614 540

18 36 29 20 34 20 41 30 22 27

5 14

8

2

2

3

7

8

8

8

81 37 42 34 23 30 41 38 28 20

23 12 34 17 17 20 21 17 14 21

-

-

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

23 12 34 17 17 20 21 17 14 21

19 16 13 21 12 23 17 21 10 13

9 22 34 40 35 25 16 29 22 29

308 241 272 275 186 228 326 346 211 258

0

0

0

0

-

-

-

-

-

-

0

0

0

0

1

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

0

0

-

-

-

-

-

-

4

1

0

0

-

-

-

-

-

-

0

0

0

0

0

0

1

0

0

0

0

1

0

0

-

-

-

-

-

-

-

-

0

0

0

0

0

0

0

0

-

-

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

314 243 272 275 187 229 327 346 211 258

284 360 441 461 293 411 345 507 368 548

817 910 964 860 595 584 497 535 293 284

84 76 43 42 30 54 79 98 54 96

82 138 65 125 80 112 103 121 79 83

4

9 30 13 15 15 10 11

1

9

51 51 61 87 76 52 44 50 36 31

128 161 167 186 207 157 282 289 194 244

172 200 201 236 237 316 325 460 243 460

Case 1:17-cv-01533-TSC Document 59-1 Filed 12/12/17 Page 5 of 7

Table VII Immigrant Number Use for Visa Issuances and Adjustments of Status in the Diversity Immigrant
Category Fiscal Years 2008-2017

Foreign State
Kosovo Kyrgyzstan Latvia Liechtenstein Lithuania Luxembourg Macedonia Malta Moldova Monaco Montenegro Netherlands
Aruba Curacao Netherlands Antilles Sint Maarten TOTAL Northern Ireland Norway Svalbard TOTAL Poland Portugal Macau TOTAL Romania Russia San Marino Serbia Slovakia Slovenia Spain Sweden Switzerland Tajikistan Turkey Turkmenistan Ukraine Uzbekistan Vatican City

2008
2 132
19 0
128 3
219 0
279 1 8
68 6 3 -
77 3
10 -
10 -
12 11 23 876
0 351 67 6 56 50 71 66 972 78 1,914 2,274 0

2009
50 122
41 0
106 0
205 0
273 0 4
103 4 -
12 -
119 13 11 11 16 3 19
343 0
211 45 7 75 46 96 80
1,041 59
1,714 2,388
0

2010
91 130
36 0
133 0
150 5
399 0
11 80
0 1 81 10 12 0 12 9 8 17 366 1,095 0 158 43 5 80 54 79 121 1,058 77 1,807 3,356 0

2011
83 147
70 1
167 2
177 0
582 0 4
52 1 1 0 0
54 17 12
0 12
17 2 19 482 1,552 0 156 37 2 86 43 69 182 993 85 1,676 3,596 0

2012
71 182
22 0
129 3
68 4
684 0 5
61 1 2 0
64 15
9 0 9 16 6 22 589 1,096 0 120 17 2 75 62 50 152 899 72 1,439 3,212 0

2013
126 189
57 0 141 3 148 0 906 0 11 35 0 4 0 39 14 16 0 16 829 20 4 24 423 1,680 0 171 36 4 95 62 40 209 712 70 1,844 3,385 0

2014
95 235
57 0
156 0
183 0
1,211 4
11 71
0 0 0 71 18 0 0 0 500 27 3 30 498 1,928 0 206 36 1 183 35 61 248 1,084 106 1,770 3,032 0

2015
146 286
30 0
167 0
263 0
1,566 0 6
46 0 0 1
47 15
4 0 4 412 29 17 46 539 2,028 0 216 44 5 183 48 56 339 1,245 105 1,313 2,524 0

2016
164 135
31 0 91 0 206 0 1,189 0 7 40 0 0 0 40 6 3 0 3 327 11 8 19 342 1,401 0 213 26 8 101 46 31 239 796 75 1,787 2,378 0

2017
318 223 22
0 96
2 235
0 1,369
0 13 31
0 0 0 31 4 9 0 9 287 15 1 16 321 1,812 0 314 31 12 108 53 35 419 1,386 93 2,040 3,199 0

Europe Total

14,788 14,241 16,083 16,378 13,093 17,296 18,904 19,811 15,207 20,516

North America

Bahamas, The

5

1 13

2

3 16

2

7

5

3

Case 1:17-cv-01533-TSC Document 59-1 Filed 12/12/17 Page 6 of 7

Table VII Immigrant Number Use for Visa Issuances and Adjustments of Status in the Diversity Immigrant
Category Fiscal Years 2008-2017

Foreign State
North America Total

2008
5

2009
1

2010
13

2011
2

2012
3

2013
16

2014
2

2015
7

2016
5

2017
3

Oceania
Australia Christmas Island Cocos (Keeling) Islands Norfolk Island TOTAL
Fiji Kiribati Marshall Islands Micronesia, Federated States of Nauru New Zealand
Cook Islands Niue Tokelau TOTAL Palau Papua New Guinea Samoa Solomon Islands Tonga Tuvalu Vanuatu
Oceania Total
South America, Central America, and the Caribbean
Antigua and Barbuda Argentina Barbados Belize Bolivia Chile Costa Rica Cuba Dominica Ecuador Grenada Guatemala Guyana Honduras

238 187 285 275 292 433 406 486 331 398

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

-

-

0

0

0

0

0

5

0

0

238 187 285 275 292 433 406 491 331 398

313 291 232 174 174 254 218 185 130 214

2

2

0

0

2

0

0

3

3

0

0

0

0

0

4

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

6

0

0

0

0

0

0

117 84 80 109 87 131 132 149 66 127

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

-

-

0

0

0

0

0

0

0

0

117 84 80 109 87 131 132 149 66 127

0

0

3

0

0

0

0

0

0

0

2 12

8

1

0

9

2

1

0

1

11

2

9

4

2

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

27 27 22

9

1 11

2 15

1 24

0

0

0

0

0

0

0

0

0

2

0

0

0

0

0

0

0

0

1

0

710 605 639 578 562 838 761 844 532 766

0

1

6

1

60 62 91 57

2

3 14

6

7

5

3

8

79 53 76 30

14 31 11 16

3

2 17 12

256 190 140 231

3 21 15 10

113

-

-

-

1

1

4

2

30

-

-

-

7 19 32 30

14 10 26 26

0

6

6

4

0

1

37 32 73 52 30 36

4

0

8

6

0

2

1 12

1

0

0

3

28 33 26 23 24 10

6 12 24 10

1 13

2 20 25

6 10 13

70 193 302 474 536 384

9 11

6

2

4

3

-

-

-

-

-

-

7

1

6

2

1

6

-

- 44 20

9 13

7 16

6 14

4

2

23 24 38 31 26 30

Case 1:17-cv-01533-TSC Document 59-1 Filed 12/12/17 Page 7 of 7

Table VII Immigrant Number Use for Visa Issuances and Adjustments of Status in the Diversity Immigrant
Category Fiscal Years 2008-2017

Foreign State
Nicaragua Panama Paraguay Saint Kitts and Nevis Saint Lucia Saint Vincent and the Grenadines Suriname Trinidad and Tobago Uruguay Venezuela

2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

14 26 20 22

7 28

2

4

5

3

5

9 17

5

7

5

7

5

1

0

5

3 17

4

6

4

1

2

2

2

2

2

2

0

3

5

0

1

0

0

2

4

7

9

1

9 15

5

1 10

1

3

5

4

1

9

5

3

2

0

2

1

3

0

1

3

4

2

2

0

48 76 103 53 43 45 62 53 20 17

12

7

8

4

3

1

9

5

8

8

155 253 391 448 476 560 802 735 684 1,274

South America, Central America, and the Caribbean Total

835 782 1,008 978 742 1,029 1,472 1,459 1,370 1,830

Grand Totals

46,633 48,036 51,312 51,118 34,463 52,571 52,342 49,377 46,718 49,976

 
 Case 1:17-cv-01533-TSC Document 60 Filed 01/05/18 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

P.K., et al.,

)

on behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs/Petitioners,

)

)

v.

)

)

REX W. TILLERSON, et al.,

)

)

Defendants/Respondents. )

)

____________________________________)

No. 1:17-cv-01533-TSC

PLAINTIFFS’ STATUS UPDATE

Plaintiffs respectfully submit the following Status Update. On December 22, 2017, the

United States Court of Appeals for the Ninth Circuit issued its decision in Hawaii v. Trump, No.

17-17168, 2017 WL 6554184 (9th Cir. Dec. 22, 2017). This decision affirmed a district court

decision enjoining the enforcement of the current and third version of the entry restriction,

Proclamation 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017) (“EO-3”). That injunction is currently

stayed. As the Court is aware, the instant litigation does not involve EO-3 and instead relates to

an earlier Executive Order, Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017 (“EO-

2”). However, the reasoning of the Court of Appeals invalidating EO-3 supports denying

Defendants’ motion to dismiss.

First, the Ninth Circuit held that consular nonreviewability did not bar judicial review.

Because the plaintiffs there challenged a policy determination by the Executive Branch, judicial

review was available. “[C]ourts do not hesitate to reach challenges to the substance and

implementation of immigration policy.” Hawaii, 2017 WL 6554184, at *6 (internal quotation

1

Case 1:17-cv-01533-TSC Document 60 Filed 01/05/18 Page 2 of 4
marks omitted). This Court previously came to the same conclusion on similar reasoning in its decision granting a preliminary injunction in part. See ECF No. 49 at 15. The Court should adhere to its prior decision, as supported by the decision of the Ninth Circuit in Hawaii, and deny the motion to dismiss on the grounds of consular nonreviewability.
Second, the Ninth Circuit concluded that EO-3 violated the Immigration and Nationality Act. Most significantly for purposes of this case, the Court held that the prohibition on national origin discrimination in immigrant visa issuance, 8 U.S.C. § 1152(a)(1)(A), “cabin[ed]” the authority to deny entry under 8 U.S.C. § 1182(f). Hawaii, 2017 WL 6554184, at *20. Because EO-3 expressly discriminated on the basis of national origin, the Court of Appeals found that it was invalid. Id. at *20-21. The Ninth Circuit was not persuaded by the government’s reliance on two prior Executive Orders issued by President Carter and Reagan, noting that “those restrictions were never challenged in court and . . . [m]oreover, both orders are outliers among the forty-plus presidential executive orders restricting entry, and therefore cannot support a showing of congressional acquiescence.” Id. at 21.
In its motion to dismiss, Defendants have presented virtually identical arguments to those rejected by the Court of Appeals and have relied on the same two prior outlier Executive Orders. ECF No. 53-1 at 26-28. This Court should reach the same conclusion here and deny the motion to dismiss.
2

Case 1:17-cv-01533-TSC Document 60 Filed 01/05/18 Page 3 of 4

January 5, 2018

Respectfully submitted,

Samer E. Khalaf (pro hac vice) Abed A. Ayoub Yolanda Rondon AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE 1705 DeSales Street, N.W., Suite 500 Washington, D.C. 20036 Tel: 202-244-2990 Skhalaf@adc.org

/s/ Matthew E. Price Matthew E. Price (DC Bar # 996158) Max J. Minzner (pro hac vice) JENNER & BLOCK LLP 1099 New York Ave. NW Suite 900 Washington, DC 20001 Tel. 202-639-6000 Fax: 202-639-6066 Email: mprice@jenner.com
mminzner@jenner.com

Karen C. Tumlin Esther Sung NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd, Suite 1600 Los Angeles, CA 90010 (213) 639-3900 tumlin@nilc.org sung@nilc.org

Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 ojadwat@aclu.org

Justin B. Cox NATIONAL IMMIGRATION LAW CENTER PO Box 170208 Atlanta, GA 30317 (678) 279-5441 cox@nilc.org
Arthur B. Spitzer (D.C. Bar # 235960) Scott Michelman (D.C. Bar # 1006945) AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, D.C. 20005 202-457-0800 aspitzer@acludc.org

Cody H. Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 cwofsy@aclu.org samdur@aclu.org

Counsel for Plaintiffs

3

Case 1:17-cv-01533-TSC Document 60 Filed 01/05/18 Page 4 of 4
CERTIFICATE OF SERVICE I certify that, on January 5, 2018, I served the foregoing Plaintiffs’ Status Update on all counsel of record by filing it via this Court’s CM/ECF system.
/s/ Matthew E. Price

 
 Case 1:17-cv-01533-TSC Document 61 Filed 01/12/18 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

HAMED SUFYAN OTHMAN

)

ALMAQRAMI, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

REX W. TILLERSON, in his official

)

capacity as Secretary of State, et al.,

)

)

Defendants.

)

)

Civil Action No. 1:17-cv-01533-TSC

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ STATUS UPDATE

Defendants, by and through undersigned counsel, respectfully submit this Response to

Plaintiffs’ Status Update (ECF No. 60) (hereinafter, “Plaintiffs’ Status Update” or “Pls.’ Status

Update”). Contrary to Plaintiffs’ suggestion, the Ninth Circuit’s decision in Hawaii v. Trump, —

F.3d —, 2017 WL 6554184 (9th Cir. Dec. 22, 2017) (per curiam), does not support denial of

Defendants’ motion to dismiss.

First, the Ninth Circuit’s decision has no relevance to the fact that Plaintiffs’ alleged

injury is not redressable by this Court, given that the fiscal year has ended, and that their claims

are therefore moot. See Zixiang Li v. Kerry, 710 F. 3d 995, 1002 (9th Cir. 2013) (noting how

“[t]here is no statute or regulation authorizing [the State Department] to take a visa number from

one year and allocate it to another year” and specifically discussing the diversity-visa lottery).

Second, because the Plaintiffs’ amended complaint (ECF No. 46) does not challenge the

proclamation at issue in Hawaii, that decision is not directly applicable here.

1

Case 1:17-cv-01533-TSC Document 61 Filed 01/12/18 Page 2 of 4
Finally, to the extent that this Court concludes the Ninth Circuit’s decision in Hawai‘i
may be relevant because that case involves similar legal issues, the Ninth Circuit’s decision
nevertheless does not support denial of Defendants’ pending motion to dismiss (ECF No. 53).
Indeed, the Supreme Court granted a stay of the district court’s order enjoining the enforcement
of the proclamation pending potential Supreme Court review, Trump v. Hawaii, No. 17A550,
2017 WL 5987406 (Dec. 4, 2017), which suggests that the Government established a likelihood
of success on the merits of those legal issues. At most, however, if this Court is of the view that
the Supreme Court’s potential review in Hawaii could be relevant, this Court should stay its
resolution of Defendants’ motion to dismiss until after the Supreme Court has decided whether
to grant the Government’s petition for certiorari (filed January 5, 2018) and, if granted, pending
its ultimate disposition.
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General CATHERINE H. DORSEY Counsel to the Assistant Attorney General
WILLIAM C. PEACHEY Director GISELA A. WESTWATER Assistant Director STEVEN A. PLATT Trial Attorney
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section
2

Case 1:17-cv-01533-TSC Document 61 Filed 01/12/18 Page 3 of 4

Dated: January 12, 2018

P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 e-Mail: joshua.press@usdoj.gov
Attorneys for Defendants

3

Case 1:17-cv-01533-TSC Document 61 Filed 01/12/18 Page 4 of 4 CERTIFICATE OF SERVICE
I hereby certify that on January 12, 2018, I electronically filed this document with the Clerk of the Court by using the CM/ECF system, which will provide electronic notice and an electronic link to this document to all attorneys of record.
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney
4

 
 Case 1:17-cv-01533-TSC Document 57 Filed 12/04/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

P.K., et al.,

)

on behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs/Petitioners,

)

)

v.

)

)

REX W. TILLERSON, et al.,

)

)

Defendants/Respondents. )

)

____________________________________)

No. 1:17-cv-01533-TSC
PLAINTIFFS’ STATUS UPDATE AND MOTION TO SCHEDULE ORAL ARGUMENT

PLAINTIFFS’ STATUS UPDATE AND MOTION TO SCHEDULE ORAL ARGUMENT

Plaintiffs respectfully submit this status update and motion to schedule oral argument.

Pursuant to Local Civ. R. 7(m), Plaintiffs consulted with the government concerning this motion

and it stated that “[w[e have no objection and agree that an argument would be appropriate prior

to the Court taking any acting on our motion to dismiss. We cannot yet take any position on when

such a hearing should take place (or should be requested) without further discussion with you and

the courtroom deputy regarding what dates are on the table.” In support of this motion, Plaintiffs

state:

A. Status Update.

1. On September 29, 2017, the Court partially granted Plaintiffs’ request for a

preliminary injunction. See ECF No. 50. In particular, the Court ordered Defendants to: “(1)

report, by October 15, the number of visa numbers returned unused for fiscal year 2017; and (2)

hold those visa numbers to process Plaintiffs’ visa applications in the event the Supreme Court

finds the Executive Order to be unlawful.” Id.

1

Case 1:17-cv-01533-TSC Document 57 Filed 12/04/17 Page 2 of 5
2. In response to the Court’s order, the Government reported that “a total of 27,241 diversity-visa numbers for fiscal year 2017 have been returned unused.” ECF No. 52 at 1. The Court has required the government to “hold those visa numbers to process Plaintiffs’ visa applications in the event the Supreme Court finds the Executive Order to be unlawful.” ECF No. 50. Because over 27,000 visa numbers were returned unused, a sufficient quantity of visas exist to issue an immigrant visa to each member of the proposed class.
3. In its status update, Defendants also indicated that the “total number of diversity visas that were actually issued for fiscal year 2017 was 49,976.” Id. However, the State Department recently released data suggesting that Defendants’ report to this Court was inaccurate. The State Department’s website reports that only 49,067 diversity visas were issued in 20171— more than 900 fewer than Defendants reported to this Court. Plaintiffs continue to believe that, to the extent any numerical cap exists on the number of visas available in this litigation, it is no less than the 27,241 unused visa numbers identified by Defendants. However, if the Court were to disagree and conclude that no more than 50,000 visas could be issued for 2017, this new information indicates that at least 933 visas are available for use by the proposed class.
B. Motion to Schedule Oral Argument 4. Defendants filed a motion to dismiss in this matter on October 20, 2017. ECF No. 53. On November 3, Plaintiffs filed an opposition to the motion to dismiss, ECF No. 54, and Defendants filed their reply on November 13. ECF No. 56. As a result, the motion to dismiss is
1 Report of the Visa Office 2017, Table III, Immigrant Visas Issued (by Foreign State of Chargeability or Place of Birth): Fiscal Year 2017, at 6, available at https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2017AnnualReport/FY17 AnnualReport-TableIII.pdf
2

Case 1:17-cv-01533-TSC Document 57 Filed 12/04/17 Page 3 of 5

fully briefed and is ready for oral argument. In addition, Plaintiffs filed a motion for class

certification on August 3, 2017, ECF No. 3, to which Defendants never responded.

5. Plaintiffs seek oral argument on the pending motions as soon as the Court’s

schedule permits. As the Court is aware, the stakes in this litigation could not be higher for

Plaintiffs and members of the proposed class. The government’s continuing illegal denial of their

visas poses significant ongoing harm to Plaintiffs. Furthermore, if the Court denies the motion to

dismiss, Plaintiffs believe that they will be able to file a motion for summary judgment quickly

and resolve the litigation expeditiously. As a result, a rapid resolution of the motion to dismiss is

in the best interests of the Court and the parties.

6. Counsel for Plaintiffs are available to present argument on the pending motions any

day except for December 5-7 and December 11, 2017.

December 4, 2017

Respectfully submitted,

Samer E. Khalaf (pro hac vice) Abed A. Ayoub Yolanda Rondon AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE 1705 DeSales Street, N.W., Suite 500 Washington, D.C. 20036 Tel: 202-244-2990 Skhalaf@adc.org

/s/ Matthew E. Price Matthew E. Price (DC Bar # 996158) Max J. Minzner (pro hac vice) JENNER & BLOCK LLP 1099 New York Ave. NW Suite 900 Washington, DC 20001 Tel. 202-639-6000 Fax: 202-639-6066 Email: mprice@jenner.com
mminzner@jenner.com

Karen C. Tumlin Esther Sung NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd, Suite 1600 Los Angeles, CA 90010 (213) 639-3900 tumlin@nilc.org sung@nilc.org

Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 ojadwat@aclu.org

Justin B. Cox NATIONAL IMMIGRATION LAW CENTER

Cody H. Wofsy Spencer E. Amdur

3

Case 1:17-cv-01533-TSC Document 57 Filed 12/04/17 Page 4 of 5

PO Box 170208 Atlanta, GA 30317 (678) 279-5441 cox@nilc.org
Arthur B. Spitzer (D.C. Bar # 235960) Scott Michelman (D.C. Bar # 1006945) AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 4301 Connecticut Avenue, NW, Suite 434 Washington, DC 20008 202-457-0800 aspitzer@acludc.org

AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 cwofsy@aclu.org samdur@aclu.org

Counsel for Plaintiffs

4

Case 1:17-cv-01533-TSC Document 57 Filed 12/04/17 Page 5 of 5 CERTIFICATE OF SERVICE
I certify that, on December 4, 2017, I served the foregoing Plaintiffs’ Motion to Schedule Oral Argument and Status Update on all counsel of record by filing it via this Court’s CM/ECF system.
/s/ Matthew E. Price
1

Case 1:17-cv-01533-TSC Document 57-1 Filed 12/04/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.K., et al.,

)

on behalf of themselves and all

)

others similarly situated,

)

)

Plaintiffs/Petitioners,

)

)

v.

)

)

REX W. TILLERSON, et al.,

)

)

Defendants/Respondents. )

)

____________________________________)

No. No. 1:17-cv-01533-TSC

[PROPOSED] ORDER

Upon consideration of the foregoing Plaintiffs’ Motion to Schedule Oral Argument, it is hereby ORDERED that the motion is
GRANTED.

Entered: December ___, 2017

_____________________________ United States District Judge

 
 Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HAMED SUFYAN OTHMAN ALMAQRAMI, et al.,
Plaintiffs, v. REX W. TILLERSON, et al.,
Defendants.

)

)

)

)

)

)

)

)

Case No. 17-cv-1533 (TSC)

)

)

)

)

)

)

MEMORANDUM OPINION

Plaintiffs—citizens of Yemen and Iran—allege that Defendants unlawfully failed to

process their diversity immigrant visa applications based on President Trump’s March 6, 2017

Executive Order. ECF No. 46 (Am. Compl.). Defendants now move to dismiss Plaintiffs’

Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which

relief can be granted. ECF No. 53 (Mot.). For the reasons explained below, the court will

GRANT Defendants’ motion to dismiss for lack of subject matter jurisdiction.

I. BACKGROUND

The facts of this case are set forth in more detail in the court’s September 29, 2017

Memorandum Opinion regarding Plaintiffs’ motion for a preliminary injunction. ECF No. 49

(Mem. Op.) at 1–7. On March 6, 2017, President Trump issued Executive Order 13,780

(“Executive Order”), which imposed, in section 2(c), a 90-day suspension on entry into the

United States for nationals of six countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 2 of 13
Protecting the Nation from Foreign Terrorist Entry into the United States, Exec. Order No. 13780, 82 Fed. Reg. 13209, 13213 (2017). By the end of March 2017, section 2(c) of the Executive Order was enjoined, and two U.S. Courts of Appeals—the Fourth and Ninth Circuits—largely upheld both injunctions. See Int’l Refugee Assistance Project (IRAP) v. Trump, 857 F.3d 554 (4th Cir. 2017), cert. granted, 137 S. Ct. 2080 (2017), and vacated and remanded sub nom. Trump v. IRAP, 138 S. Ct. 353 (2017); Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017), cert. granted sub nom. Trump v. IRAP, 137 S. Ct. 2080 (2017), and cert. granted, judgment vacated, 138 S. Ct. 377 (2017), and vacated, 874 F.3d 1112 (9th Cir. 2017). On June 26, 2017, the U.S. Supreme Court granted a stay in part of the injunctions “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Trump, 137 S. Ct. at 2087. In light of the Executive Order and the Supreme Court’s stay, the State Department issued a cable advising consular officers to refuse diversity visas to applicants who were not exempt from the Executive Order’s suspension of entry provision and who did not qualify for a waiver. ECF No. 2-2 (State Department Cable) at 3.
On August 3, 2017, Plaintiffs filed a Petition for Mandamus and Complaint for Injunctive and Declaratory Relief, as well as a Motion for Preliminary Injunction, in which they argued that the State Department’s cable unlawfully applied President Trump’s Executive Order to diversity immigrant visa applicants for fiscal year 2017 (“FY 2017”). In the operative complaint, Plaintiffs allege that: (1) the State Department’s practice of requiring diversity visa applicants to provide documentation evidencing a bona fide relationship with the United States was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and that (2) in applying the policy, consular officers violated their clear, non-discretionary duty to issue diversity visas to applicants who are statutorily eligible. Am. Compl. at 15–17.
2

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 3 of 13
In their Motion for Preliminary Injunction, Plaintiffs asked the court to issue an order: (1) enjoining the State Department from implementing the policy set forth in its cable; and (2) requiring consular officers to process Plaintiffs’ applications pursuant to the Immigration and Nationality Act. ECF No. 2 (Injunction Mot.) at 10. Plaintiffs subsequently sought additional relief, requesting that this court order the State Department to: (1) process the diversity visas of, and/or issue diversity visas to, eligible applicants who had previously been refused pursuant to the Executive Order under the program for FY 2017, even in excess of the statutory cap and/or past the statutory deadline; or (2) issue diversity visas to eligible 2017 applicants who had been refused pursuant to the Executive Order under the program for fiscal year 2018. ECF No. 43 at 3–4. Alternatively, Plaintiffs asked the court to order the State Department to “reserve any unused visa numbers until after the [Supreme Court’s decision]” regarding the legality of the Executive Order. ECF No. 45 at 5.
On September 29, 2017, the court granted in part and denied in part Plaintiffs’ motion for a preliminary injunction and emergency mandamus relief. ECF No. 50 (Order, Sept. 29, 2017); Mem. Op. at 17. After reviewing the Fourth and Ninth Circuits’ decisions in IRAP and Hawaii, the court found that the Supreme Court’s June 26 decision permitting the Executive Order’s execution with respect to individuals without a bona fide relationship with the United States applied not only to entry into the U.S., but to visa issuance as well. Mem. Op. at 8–11. Given the Supreme Court’s June 26 decision and the Court’s continuing jurisdiction to consider the legality of the Executive Order—including with respect to visa issuance—the court found that it was precluded from finding the State Department’s policy illegal and from ordering the State Department to process and issue visas. Id. However, the court did invoke its mandamus jurisdiction to grant Plaintiffs’ alternative relief, and ordered the Defendants to: (1) report, by
3

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 4 of 13
October 15, the number of visa numbers returned unused for FY 2017; and (2) hold those visa numbers to process Plaintiffs’ visa applications in the event the Supreme Court found the Executive Order to be unlawful. Order, Sept. 29, 2017; Mem. Op. at 15. On October 15, 2017, the State Department complied with part of the court’s order, reporting that 27,241 diversity visa numbers were returned unused and that 49,976 diversity visas were issued for FY 2017. ECF No. 52 at 1.
Five days earlier, on October 10, 2017, the Supreme Court found that because section 2(c) of the Executive Order expired by its own terms on September 24, 2017, the appeal in IRAP no longer presented a live case or controversy. Trump v. IRAP, 138 S. Ct. 353, 353 (2017). Accordingly, the Court vacated the Fourth Circuit’s judgment enjoining section 2(c) of the Executive Order, and remanded the case to the Circuit “with instructions to dismiss as moot the challenge to Executive Order No. 13,780.” Id. Fourteen days later, on October 24, 2017, the Supreme Court dismissed the appeal in Hawaii based on the same reasoning and with the same instructions it provided in IRAP. Trump v. Hawaii, 138 S. Ct. 377, 377 (2017).
II. LEGAL STANDARD A. Rule 12(b)(1)
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint for lack of subject matter jurisdiction. The law presumes that “a cause lies outside [a federal court’s] limited jurisdiction” unless the party asserting jurisdiction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Georgiades v. Martin–Trigona, 729 F.2d 831, 833, n.4 (D.C. Cir. 1984) (“It is the burden of the party claiming subject matter jurisdiction to demonstrate that it exists.”). In evaluating a motion to dismiss under Rule 12(b)(1), a court must assume the truth of all factual allegations and must review
4

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 5 of 13
“‘the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). Nevertheless, “‘the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the [c]ourt accept plaintiff’s legal conclusions.’” Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). Additionally, a court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citation omitted). Finally, a “‘court may appropriately dispose of a case under 12(b)(1) on mootness grounds.” Mykonos v. United States, 59 F. Supp. 3d 100, 103–04 (D.D.C. 2014) (citing Comm. in Solidarity with the People of El Sal. v. Sessions, 929 F.2d 742, 744 (D.C. Cir. 1991)). B. Rule 12(b)(6)
Rule 12(b)(6) permits a party to move for dismissal on the grounds that the complaint has failed “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also Rollins v. Wackenhunt Servs., Inc., 703 F.3d 122, 129–130 (D.C. Cir. 2012).
5

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 6 of 13
III. ANALYSIS Defendants argue that Plaintiffs’ claims should be dismissed because the claims are nonjusticiable and Plaintiffs have failed to state a claim upon which relief can be granted. Defendants argue that Plaintiffs’ claims are moot because (1) the September 30, 2017 statutory deadline for issuing diversity visas for FY 2017 has passed, and (2) section 2(c) of the Executive Order has expired on its own terms. These two events, Defendants argue, preclude this court from ordering the State Department to process Plaintiffs’ visas, and therefore Plaintiffs’ “alleged injuries are no longer redressable.” Mot. at 2. Because “[f]ederal courts lack jurisdiction to decide moot cases,” Larsen v. United States Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (quoting Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983)), the court’s threshold—and in this case, ultimately dispositive—question is whether this case is moot. A. Mootness Article III of the Constitution confers jurisdiction to federal courts to adjudicate “Cases” or “Controversies.” U.S. Const. art. III, § 2. This case or controversy requirement extends only to “actual, ongoing controversies,” Honig v. Doe, 484 U.S. 305, 317 (1988), and precludes courts from deciding moot cases, Larsen, 525 F.3d at 4. A case is “‘moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’” Munsell v. Dep’t of Agriculture, 509 F.3d 572, 581 (D.C. Cir. 2007) (quoting Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). In a case where “events outrun the controversy such that the court can grant no meaningful relief, the case must be dismissed as moot.” McBryde v. Comm. to Review, 264 F.3d 52, 55 (D.C. Cir. 2001) (citing Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992)).
6

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 7 of 13
i. Mootness Based on the September 30, 2017 Statutory Deadline Defendants first argue that Plaintiffs’ claims are moot because the statutory deadline for issuing diversity visas for FY 2017 has passed, and therefore this court cannot provide Plaintiffs the relief they seek: the processing of their diversity visa applications. Mot. at 8–14. In support of this argument, Defendants cite to section 1154 of the Immigration and Nationality Act, which states that “[a]liens who qualify, through random selection, for a visa under section 1153(c) . . . shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected.” 8 U.S.C. § 1154(a)(1)(I)(ii)(II). Defendants argue that this statutory provision prohibits them from “issu[ing] diversity visas after midnight on September 30,” and therefore “there is no ‘likelihood’ that Plaintiffs’ alleged injury can be ‘redressed by a favorable decision.’” Mot. at 10 (quoting Ark Initiative v. Tidwell, 749 F.3d 1071, 1075 (D.C. Cir. 2014)). The court considered and rejected this argument in its September 29, 2017 decision on Plaintiffs’ motion for a preliminary injunction. Mem. Op. at 14–15. The court, persuaded by the courts’ reasoning in Paunescu v. Immigration & Naturalization Serv., 76 F. Supp. 2d 896 (N.D. Ill. 1999), and Przhebelskaya v. United States Bureau of Citizenship & Immigration Servs., 338 F. Supp. 2d 399 (E.D.N.Y. 2004), found that it had the equitable power to order the State Department to process visas after the statutory deadline. Mem. Op. at 14 (“Specifically, as shown in Przhebelskaya and Paunescu, the court may order the State Department to process visas past the statutory deadline where Plaintiffs have sought relief prior to the end of the fiscal year, as Plaintiffs have here.”). Invoking its equitable power, the court ordered the State Department to hold unused visa numbers for FY 2017 “to process Plaintiffs’ visa applications in the event the Supreme Court finds the Executive Order to be unlawful.” Order, Sept. 29, 2017.
7

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 8 of 13
Nonetheless, Defendants maintain that the September 30 statutory deadline bars relief, and support this contention with arguments similar to those rejected in the court’s previous decision. 1 Mot. at 8–12. In light of the court’s reliance on Paunescu and Przhebelskaya, Defendants argue for the first time that this court misinterpreted the import of these two cases, and therefore its reliance on these cases was incorrect. Mot. at 14. The significance of these two cases, Defendants argue, “is not that equity overcomes statutory limitations on relief, but rather that courts have inherent power to enforce their prior orders.” Id.
Assuming, for the sake of argument, that Defendants are correct, and Paunescu and Przhebelskaya merely confirm the inherent power of courts to enforce their prior orders, the court could rely on this power to grant Plaintiffs’ requested relief. If the court were to now order the State Department to use the unused visa numbers to process Plaintiffs’ visa applications, it would be requiring the State Department to fulfill its obligations under a prior order—the September 29 Order. Under that Order, the State Department was required to not merely reserve the unused visa numbers, but to do so for a specific purpose: the future processing of Plaintiffs’ visa applications. As in Paunescu and Przhebelskaya, the court issued an order directing the State Department to act prior to the September 30 deadline, and if it were to require the State
1 Defendants expound on their argument that the court lacks authority to override the September 30 deadline on visa issuance, noting that “[p]rinciples of equity do not override” section 1154’s statutory deadline. Mot. at 10. Defendants’ reliance on this general proposition is contradicted by their failure to specifically argue that the courts in Paunescu and Przhebelskaya improperly ordered the adjudication of visa applications after the statutory deadline. Instead, Defendants merely “take issue with the holdings in those cases,” ECF No. 56 (Reply) at 3, suggest that “aspects” of the two cases may have been wrongly decided, Reply at 7 n.4, and argue that a court can override the statutory deadline only when a court orders the adjudication of visas prior to the deadline. Mot. at 14. In the court’s view, in so arguing, Defendants concede that under certain circumstances, equity permits a court to order the processing of visas after September 30.
8

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 9 of 13
Department’s full compliance with its prior order, it would be within its “inherent power to enforce prior orders” to do so.
Defendants argue that the prior orders in Paunescu and Przhebelskaya directed the State Department to process visas, whereas this court’s order directed the State Department to reserve visa numbers for future processing. Mot. at 12, 14. This difference is immaterial for two reasons. First, the Paunescu and Przhebelskaya courts did not limit their holdings to situations in which a court’s prior order specifically compels the immediate processing of visa applications.
Second, the difference in wording between this court’s September 29 Order and the orders in Paunescu and Przhebelskaya is attributable, at least in part, to the unique posture of this case on September 29, 2017. On that date, this court was precluded from ordering the State Department to immediately process Plaintiffs’ visa applications because the legality of the Executive Order—the ultimate source of Plaintiffs’ injuries—was pending before the Supreme Court. See Mem. Op. at 8–11. As in Paunescu and Przhebelskaya, Plaintiffs sought relief before the September 30 deadline. But unlike in Paunescu and Przhebelskaya, this court was permitted to order—at most—only the possible future processing of Plaintiffs’ visa applications. None of the cases on which Defendants rely suggest that the court is prohibited from ordering and later enforcing the future processing of diversity visas after the statutory deadline in such a situation. Indeed, some of the cases suggest the opposite is true. See, e.g., Coraggioso v. Ashcroft, 355 F.3d 730, 734 n.8 (3d Cir. 2004), as amended (Jan. 29, 2004) (“Had Coraggioso sought relief prior to the expiration of the 1998 fiscal year, our analysis may have been different.”); Keli v. Rice, 571 F. Supp. 2d 127, 135 (D.D.C. 2008) (“Both the Third and Seventh Circuits have hinted that the entry of injunctive relief prior to the end of the applicable fiscal year may preserve a case’s justiciability.”) (citing Coraggioso, 355 F.3d at 734 n.8; Ahmed v. Dep’t of
9

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 10 of 13
Homeland Sec., 328 F.3d 383, 387 (7th Cir. 2003); Iddir v. Immigration & Naturalization Serv., 301 F.3d 492, 501 n.2 (7th Cir. 2002)).
Accordingly, whether a district court orders the immediate or future processing of diversity visas—as long as plaintiffs seek relief and the court issues an order granting relief prior to the September 30 deadline—the court is entitled to enforce its prior order. Therefore, if the court deemed it appropriate, it could order the State Department to process Plaintiffs’ diversity visa applications, and the passing of the September 30 deadline did not moot Plaintiffs’ claims.
ii. Mootness Based on the Expiration of Section 2(c) of the Executive Order Defendants next argue that because section 2(c) of the Executive Order expired on its own terms, the case no longer presents a “live case or controversy.” Mot. at 15–17. In support of this argument, Defendants cite to the Supreme Court’s orders mooting the challenges to the Executive Order in IRAP and Hawaii. In its order in IRAP, the Court explained: We granted certiorari in this case to resolve a challenge to ‘the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.’ Because that provision of the Order ‘expired by its own terms’ on September 24, 2017, the appeal no longer presents a ‘live case or controversy.’ Burke v. Barnes, 479 U.S. 361, 363 (1987). IRAP, 138 S. Ct. at 353; Hawaii, 138 S. Ct. at 377 (similar). The Court vacated the lower courts’ decisions, remanded the cases with instructions to dismiss the challenges to the Executive Order as moot, and “express[ed] no view on the merits” of those challenges. Id. Defendants argue that in light of the Supreme Court’s actions, the court should dismiss this case as moot. Plaintiffs respond that the expiration of the Executive Order does not moot their claims because their Amended Complaint challenges the State Department’s policy of refusing to process their visa applications, not the Executive Order itself. ECF No. 54 (Opp.) at 19. Plaintiffs further argue that “even though [the Executive Order] has expired, Defendants’
10

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 11 of 13
justification for their actions, based on [the Executive Order] persists,” and therefore their “claims cannot possibly be moot.” Id. Lastly, Plaintiffs argue that the Supreme Court’s decision to express no view on the challenges to the Executive Order does not moot this case, but instead “clears the way for this litigation to proceed.” Id. at 17. The court finds all three arguments unpersuasive.
Although Plaintiffs do not challenge the Executive Order directly, their claims challenge a State Department policy that was promulgated pursuant to the Executive Order. If, as the Supreme Court has found, section 2(c)’s expiration moots challenges to the Executive Order, it necessarily follows that challenges to a State Department’s policy promulgated pursuant to that section of the Executive Order are moot as well. Defendants’ continuing assertion that the State Department’s policy was a lawful implementation of the Executive Order does not save Plaintiffs’ claims. It is likely that the defendants in Hawaii and IRAP also maintain that the Executive Order was a lawful exercise of the President’s power. Even so, the Supreme Court concluded that it was appropriate to dismiss those cases as moot, and thus this court must do the same here.
Plaintiffs’ argument that the Supreme Court’s decision to express no view on the legality of the Executive Order “clears the way for this litigation to proceed” does not convince this court otherwise. This court’s September 29, 2017 Order was unambiguous; it expressly predicated a future order requiring the State Department to process Plaintiffs’ visa applications on “the Supreme Court find[ing] the Executive Order to be unlawful.” Order, Sept. 29, 2017. The Supreme Court declined to do so. IRAP, 138 S. Ct. at 353; Hawaii, 138 S. Ct. at 377. Accordingly, a condition precedent to the court granting Plaintiffs the ultimate relief they seek— the processing of their visa applications—was not satisfied. Given the Supreme Court’s decision
11

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 12 of 13
to moot the challenges to the Executive Order and its decision not to rule on the legality of the
Executive Order, events have “outrun the controversy,” and there is no longer any meaningful
relief this court can provide. Therefore, it must dismiss this case as moot. See McBryde, 264
F.3d at 55 (citation omitted).2
B. Defendants’ Additional Arguments for Dismissal
Having concluded that Plaintiffs’ claims are moot, the court need not reach Defendants’
additional arguments, especially those relating to the merits of Plaintiffs’ claims.3 See Larsen,
525 F.3d at 4 (“‘Federal courts lack jurisdiction to decide moot cases because their constitutional
authority extends only to actual cases or controversies.’”) (quoting Iron Arrow Honor Soc’y, 464
U.S. at 70).
IV. CONCLUSION
The court acknowledges the enormous statistical odds Plaintiffs faced and overcame in
being chosen to interview and apply for a diversity visa in FY 2017. Millions of individuals
enter the diversity visa lottery every year, hoping to have the chance to enter the United States.
2 The court’s decision is further supported by Plaintiffs’ inability to demonstrate a bona fide relationship with the United States. Am. Compl. ¶ 45 (“The proposed class is defined . . . as all persons who . . . are subject to the Executive Order and do not qualify for the ‘bona fide relationship’ exception.”). Following the Supreme Court’s June 26, 2017 decision, courts considering challenges to Executive Orders on travel have limited their injunctions to individuals with bona fide relationships with the United States, thereby permitting the government to enforce the executive actions as to individuals with no such relationships. See Hawaii v. Trump, 878 F.3d 662, 701–03 (9th Cir. 2017) (narrowing the scope of an injunction to “give relief only to those with a credible bona fide relationship with the United States, pursuant to the Supreme Court’s decision in IRAP”); see also IRAP v. Trump, 883 F.3d 233, 273–74 (4th Cir. 2018), as amended (Feb. 28, 2018); Doe v. Trump, No. 17-0178, 2017 WL 6551491, at *26 (W.D. Wash. Dec. 23, 2017). Plaintiffs have not articulated why this court should depart from this application of the Supreme Court’s June 26 decision and order the processing of visa applications for individuals without the requisite relationships with the United States. 3 The court notes that it has already rejected Defendants’ argument that the doctrine of consular non-reviewability renders this case nonjusticiable in its opinion on Plaintiffs’ motion for a preliminary injunction. Mem. Op. 15–17.
12

Case 1:17-cv-01533-TSC Document 65 Filed 03/27/18 Page 13 of 13

The fact that Plaintiffs—merely by virtue of their citizenship—are unable to take full advantage of this rare opportunity is unfortunate. Nevertheless, even the most unfortunate of circumstances do not permit this court to rule on the merits of claims for which there is no longer a meaningful remedy available. For the foregoing reasons, Defendants’ motion to dismiss will be GRANTED.
A corresponding order will issue separately.

Date: March 27, 2018

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

13

 
 ORAL ARGUMENT NOT YET SCHEDULED
No. 18-5156
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________________
HAMED SUFYAN OTHMAN ALMAQRAMI; ALIAKBAR NOWZARI GOLSEFID; MASOUMEH FOTOHI; BEHNAM NOZARI GOLSEFID; FARZAD ABDOLLAHI ZADEH;
ZHREH BABADI; SZ; RZ; AIMAN ALSAKKAF, Plaintiffs-Appellants
v.
MICHAEL R. POMPEO, in his official capacity as Secretary of State; JOHN DOES, #1-#50, in their official capacity as the consular officials responsible
for issuing diversity visas, Defendants-Appellees
________________________
On Appeal from the United States District Court for the District of Columbia, No. 1:17-cv-1533 (TSC)
BRIEF FOR PLAINTIFFS-APPELLANTS
Matthew E. Price Max J. Minzner Benjamin M. Eidelson JENNER & BLOCK LLP 1099 New York Ave. NW, Suite 900 Washington, DC 20001 (202) 639-6000 – Telephone (202) 639-6066 – Fax mprice@jenner.com
Counsel for Plaintiffs-Appellants
September 4, 2018
Additional Counsel Listed On Inside Cover

Samer E. Khalaf Abed A. Ayoub Yolanda Rondon AMERICAN-ARAB ANTIDISCRIMINATION COMMITTEE 1705 DeSales Street, N.W., Suite 500 Washington, D.C. 20036 Tel: 202-244-2990 Skhalaf@adc.org
Karen C. Tumlin Esther Sung NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd, Suite 1600 Los Angeles, CA 90010 Tel: (213) 639-3900 tumlin@nilc.org

Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 ojadwat@aclu.org
Cody H. Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 cwofsy@aclu.org samdur@aclu.org

Justin B. Cox NATIONAL IMMIGRATION LAW CENTER PO Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 cox@nilc.org

Arthur B. Spitzer Scott Michelman AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, DC 20005 Tel: (202) 457-0800 aspitzer@acludc.org

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES (A) Parties. The parties before the District Court were Plaintiffs P.K. (termi-
nated Sept. 5, 2017), N.H. (terminated Sept. 5, 2017), M.K. (terminated Aug. 3, 2017), M.K.1 (terminated Sept. 5, 2017), M.K.2 (terminated Sept. 5, 2017), Afshan Asadi Sorkhab (terminated Sept. 14, 2017), Neda Heidari Dehkordi (terminated Sept. 14, 2017), Y.S.1 (terminated Sept. 14, 2017), Y.S.2 (terminated Sept. 14, 2017), Y.S.3 (terminated Sept. 14, 2017), Hamed Sufyan Othman Almaqrami, Radad Fauiz Furooz (terminated Aug. 28, 2017), Aliakbar Nowzari Golsefid, Masoumeh Fotohi, Behnam Nozari Golsefid, Farzad Abdollahi Zadeh, Zhreh Babadi, SZ, RZ, and Aiman Alsakkaf; and Defendants Rex W. Tillerson and John Does #1#50.
The parties before this Court are Plaintiffs-Appellants Hamed Sufyan Othman Almaqrami, Aliakbar Nowzari Golsefid, Masoumeh Fotohi, Behnam Nozari Golsefid, Farzad Abdollahi Zadeh, Zhreh Babadi, SZ, RZ, and Aiman Alsakkaf; and Defendants-Appellees Michael Pompeo and John Does #1-#50.
(B) Rulings Under Review. The ruling under review is the district court order and accompanying memorandum opinion dismissing the case below with prejudice. Judge Tanya S. Chutkan issued both on March 27, 2018. The order is entry 66 on the district court docket and is reprinted at J.A. 154. The opinion is published at 304 F. Supp. 3d 1 (D.D.C. 2018) and is reprinted at J.A. 141-153.
i

(C) Related Cases. Plaintiffs-Appellants are unaware of any related cases.

Dated: September 4, 2018

/s/ Matthew E. Price Matthew E. Price

ii

TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i TABLE OF AUTHORITIES .....................................................................................v GLOSSARY............................................................................................................. ix INTRODUCTION .....................................................................................................1 JURISDICTIONAL STATEMENT ..........................................................................3 STATEMENT OF THE ISSUES...............................................................................4 STATUTES AND REGULATIONS.........................................................................4 STATEMENT OF THE CASE..................................................................................4
A. The Diversity Visa Program.......................................................................4 B. The Entry Suspension.................................................................................6 C. The Challenged Policy. ..............................................................................7 D. Plaintiffs’ Lawsuit And The Preliminary Injunction..................................9 E. The Decision Below. ................................................................................13 SUMMARY OF ARGUMENT ...............................................................................15 ARGUMENT ...........................................................................................................18 I. Standard of Review........................................................................................18 II. This Case Is Not Moot...................................................................................19 A. Plaintiffs Have An Ongoing Interest In The Relief They Seek. ..............19 B. The Expiration Of EO-2 Does Not Moot This Case. ...............................21 C. The Supreme Court’s Failure To Reach The Merits In Hawaii and
IRAP Does Not Moot This Case...............................................................24 D. The End Of The Fiscal Year Does Not Moot This Case Or Bar
Plaintiffs’ Claims......................................................................................28
iii

1. The Fiscal-Year Deadline Does Not Moot This Case.........................28 2. The Fiscal-Year Deadline Also Does Not Warrant Dismissal
On The Merits. ....................................................................................30 E. The Current Entry Suspension Does Not Moot This Case. .....................34 CONCLUSION ........................................................................................................38
iv

TABLE OF AUTHORITIES* CASES Ahmed v. DHS, 328 F.3d 383 (7th Cir. 2003)..........................................................31 Anderson v. Carter, 802 F.3d 4 (D.C. Cir. 2015) ....................................................20 CC Distributors, Inc. v. United States, 883 F.2d 146 (D.C. Cir. 1989) ..................36 *Chafin v. Chafin, 568 U.S. 165 (2013) ................................... 16, 19, 20, 28, 29, 30 Colorado v. Connelly, 479 U.S. 157 (1986) ............................................................25 Cooper v. Harris, 137 S. Ct. 1455 (2017) ...............................................................27 Coraggioso v. Ashcroft, 355 F.3d 730 (3d Cir. 2004) .............................................31 Crystal Clear Communications, Inc. v. Southwestern Bell Telephone Co.,
415 F.3d 1171 (10th Cir. 2005) ..........................................................................27 Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980)...........................37 Ethyl Corp. v. Browner, 67 F.3d 941 (D.C. Cir. 1995) ...........................................34 Gjertsen v. Board of Election Commissioners of City of Chicago, 751 F.2d
199 (7th Cir. 1984)..............................................................................................27 Iddir v. INS, 301 F.3d 492 (7th Cir. 2002).........................................................30, 31 Keli v. Rice, 571 F. Supp. 2d 127 (D.D.C. 2008) ....................................................31 Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct. 1421 (2017).........25 Knox v. SEIU, 567 U.S. 298 (2012).........................................................................19 Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ..........................................19 Marcetic v. INS, No. 97-C-7018, 1998 WL 173129 (N.D. Ill. Apr. 6, 1998) ...30, 31 Marmet Health Care Center, Inc. v. Brown, 565 U.S. 530 (2012) .........................25
* Authorities upon which we chiefly rely are marked with an asterisk.
v

Miller v. Christopher, 96 F.3d 1467 (D.C. Cir. 1996), aff’d sub nom. Miller v. Albright, 523 U.S. 420 (1998) ........................................................................19
Mitchell v. Overman, 103 U.S. 62 (1880)................................................................34 Munsell v. Department of Agriculture, 509 F.3d 572 (D.C. Cir. 2007) ..................18 *Nken v. Holder, 556 U.S. 418 (2009) ....................................................................33 *Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. Ill. 1999)...............................12, 30, 31 Powell v. McCormack, 395 U.S. 486 (1969) ...........................................................29 *Przhebelskaya v. United States Bureau of Citizenship & Immigration Ser-
vices, 338 F. Supp. 2d 399 (E.D.N.Y. 2004) ................................................12, 30 *In re Thornburgh, 869 F.3d 1503 (D.C. Cir. 1989)...................................16, 19, 37 *Trump v. Hawaii, 138 S. Ct. 2392 (2018)....................................................7, 35, 36 Trump v. Hawaii, 138 S. Ct. 377 (2017)..................................................................13 Trump v. IRAP, 137 S. Ct. 2080 (2017)...................................................................11 Trump v. IRAP, 138 S. Ct. 353 (2017).....................................................................13 Weisberg v. United States Department of Justice, 543 F.2d 308 (D.C. Cir.
1976) ...................................................................................................................37 Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981) ...............................................37 STATUTES 5 U.S.C. § 705..........................................................................................................33 8 U.S.C. § 1151(e) .....................................................................................................4 8 U.S.C. § 1153(c) .....................................................................................................4 8 U.S.C. § 1153(c)(1).................................................................................................5 8 U.S.C. § 1153(c)(1)(E)............................................................................................5 8 U.S.C. § 1154(a)(1)(I)(ii)(II) ........................................................................ 5-6, 28
vi

8 U.S.C. § 1182(f)......................................................................................................7 8 U.S.C. § 1201(c)(1).................................................................................................6 8 U.S.C. § 1201(g) .....................................................................................................9 8 U.S.C. § 1202(b) .....................................................................................................5 28 U.S.C. § 1291........................................................................................................4 28 U.S.C. § 1331........................................................................................................4 28 U.S.C. § 1361........................................................................................................4 28 U.S.C. § 1651(a) .................................................................................................32 Immigration Act of 1990, Pub. L. No. 101-649, § 131, 104 Stat. 4978, 5000..........4 Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-
100, 111 Stat. 2193, 2199 (1997) (codified at 8 U.S.C. § 1151 note)..................4 REGULATIONS AND EXECUTIVE ORDERS 22 C.F.R. § 40.6 .........................................................................................................5 22 C.F.R. § 42.33(a)...................................................................................................5 22 C.F.R. § 42.33(a)(1) ..............................................................................................6 22 C.F.R. § 42.33(c)...................................................................................................5 22 C.F.R. § 42.33(f) ...................................................................................................6 22 C.F.R. § 42.33(g) ..................................................................................................5 22 C.F.R. § 42.61-67..................................................................................................5 22 C.F.R. § 42.81(a)...................................................................................................5 Executive Order 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) ..............................1, 7 Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017)...............................35 Proclamation No. 9723, 83 Fed. Reg. 15,937 (Apr. 10, 2018)................................35
vii

OTHER AUTHORITIES First Amended Complaint, IRAP v. Trump, No. 8:17-cv-361-TDC (D. Md.
Mar. 10, 2017), Dkt. 93 ......................................................................................22 Order, IRAP v. Trump, No. 8:17-cv-361-TDC (D. Md. Mar. 16, 2017), Dkt.
150 ....................................................................................................................... 22 Second Amended Complaint, Hawaii v. Trump, No. 1:17-cv-50-DKW (D.
Haw. Mar. 8, 2017), Dkt. 64...............................................................................22 Order, Hawaii v. Trump, No. 1:17-cv-50-DKW (D. Haw. Mar. 29, 2017),
Dkt. 270...............................................................................................................22 United States Department of State, Visa Bulletin for July 2016 (June 9,
2016), zcxsuaytravel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2016/visa-bulletin-for-july-2016.html .......................................................... 5 1 William B. Rubenstein, Newberg on Class Actions (5th ed. 2011)......................37
viii

GLOSSARY DV ........................................................................................................ Diversity Visa EO-2 ....................................... Executive Order 13,780, 82 Fed. Reg. 13,209 (2017) EO-3 .......................Presidential Proclamation No. 9645, 82 Fed. Reg. 45,161 (2017) INA..........................................................................Immigration and Nationality Act
ix

INTRODUCTION Under the “diversity visa” program, 50,000 immigrant visas are reserved each year for applicants from countries that send few immigrants to this country through other channels. Millions of people around the world enter the annual lottery for these prized visas. A lucky few are selected to finalize their visa applications and, if legally eligible, immigrate to the United States. Time is of the essence in this process, because a lottery-winner’s visa eligibility generally expires at the end of the fiscal year in which she was selected. Plaintiffs, Yemeni and Iranian nationals, won the diversity lottery for Fiscal Year 2017. But Defendants, the Secretary of State and consular officials, refused to process Plaintiffs’ visa applications. Specifically, Defendants decided that there was no need to process Plaintiffs’ visa applications because, by executive order, the President had temporarily suspended entry by Yemenis and Iranians, among others, pending review. See Exec. Order 13,780, § 2(c), 82 Fed. Reg. 13,209 (Mar. 9, 2017) (“EO-2”). Because their visa eligibility would ordinarily lapse at the end of September 2017, Plaintiffs brought suit in August of that year. Plaintiffs did not challenge the legality of the President’s entry suspension, and they conceded that they would not be able to enter the United States while it remained in effect. Nonetheless, they
1

wanted their visa applications processed in order to preserve their chance of immigrating later if and when entry restrictions are lifted. Under the controlling statute and regulations, Plaintiffs explained, a president’s suspension of entry provides no legal warrant for refusing to process and issue diversity visas.
On the eve of the September 30, 2017, deadline for issuing diversity visas, the district court intervened and enjoined the government to hold “visa numbers”—essentially, placeholders for future visa processing—available for Plaintiffs. The court opted not to resolve the merits of Plaintiffs’ legal theory at that time, however, because it preferred to await the Supreme Court’s resolution of two pending cases involving challenges to the entry suspension. A few weeks later, the Supreme Court disposed of those cases without addressing the merits, explaining that the Executive Order’s expiration had rendered the appeals moot. The Supreme Court therefore provided none of the guidance the district court had hoped for.
At that point, the merits of Plaintiffs’ claims were squarely presented in the district court, and the district court should have decided whether Defendants’ continuing refusal to process Plaintiffs’ visa applications was (and is) lawful. Instead, however, the district court granted Defendants’ motion to dismiss the case as moot. The court reasoned that because the Executive Order had expired, there could no longer be any live controversy about how Defendants had applied that Executive
2

Order in deciding not to process Plaintiffs’ visa applications. The court also appeared to construe its earlier injunctive order as holding potential visas available for Plaintiffs’ use only if the Supreme Court found the Executive Order unlawful. Because the Supreme Court had not resolved that question either way, the court said, there was no live dispute between the parties.
But this case cannot possibly be moot. Plaintiffs still want their visa applications processed, and Defendants still refuse to do that. To be sure, Plaintiffs’ ultimate entitlement to relief depends on a number of unresolved merits issues. All that matters for mootness purposes, however, is that if the district court sides with Plaintiffs on those issues, it can grant them effectual relief: namely, it can order Defendants to process Plaintiffs’ visa applications on the merits, and to grant Plaintiffs their visas if they are legally entitled to them. That means there is still a live controversy for the district court to resolve. Nothing in the Supreme Court’s disposition of the challenges to the entry suspension casts any doubt on that commonsense conclusion. This Court should therefore reverse and remand for the district court to resolve the merits of Plaintiffs’ claims.
JURISDICTIONAL STATEMENT Plaintiffs appeal from a final judgment of the U.S. District Court for the District of Columbia, entered on March 27, 2018, dismissing their suit against Defendants for injunctive, declaratory, and mandamus relief. J.A. 141-153. The
3

district court had jurisdiction under 28 U.S.C. § 1331 because Plaintiffs’ claims arise under federal law. The court also had jurisdiction of Plaintiffs’ mandamus claim under 28 U.S.C. § 1361. Plaintiffs filed their timely notice of appeal on May 24, 2018. J.A. 155. This Court has appellate jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES The issue presented in this appeal is whether the expiration of an executive order temporarily barring entry to the United States mooted Plaintiffs’ challenge to Defendants’ ongoing refusal to process Plaintiffs’ visa applications.
STATUTES AND REGULATIONS The pertinent statutes and regulations are reproduced in the addendum to this brief at pages 1a-6a.
STATEMENT OF THE CASE A. The Diversity Visa Program. Congress created the diversity visa program in 1990 to promote immigration from countries with low rates of immigration to the United States. See Immigration Act of 1990, Pub. L. No. 101-649, § 131, 104 Stat. 4978, 5000 (codified as amended at 8 U.S.C. § 1153(c)). The statute sets a target of 50,000 diversity immigrants per fiscal year. See 8 U.S.C. § 1151(e).1 To implement the program, the Secretary of
1 Although the statute sets the worldwide target at 55,000, 5,000 of that number are set aside for another purpose. See Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2193, 2199 (1997) (codified at 8 U.S.C. § 1151 note).
4

Homeland Security first identifies countries and regions with low rates of immigration and applies a statutory formula to allocate available visas among those places. See 8 U.S.C. § 1153(c)(1)(E); 22 C.F.R. § 42.33(a). The State Department then conducts a lottery to select a small number of individuals from each place who will be allowed to submit applications for the available visas. See 22 C.F.R. § 42.33(c). The sheer number of lottery-entrants makes the process intensely competitive. For Fiscal Year 2017, more than 19 million people entered the lottery, and 83,910 of them were selected to apply for a visa—a success rate of one-half of one percent.2
Once selected, lottery winners must finalize their applications, be interviewed by a consular official, and complete other procedural steps. See 8 U.S.C. § 1202(b); 22 C.F.R. §§ 42.33(g), 42.61-67. By statute and regulation, the government must then issue visas to applicants who satisfy the relevant statutory criteria. See 8 U.S.C. § 1153(c)(1); 22 C.F.R § 42.81(a) (“When a visa application has been properly completed and executed . . . , the consular officer must either issue or refuse the visa[.]”); id. § 40.6 (“A visa can be refused only upon a ground specifically set out in the law or implementing regulations.”). Eligible lottery winners whose cases are processed by the end of the fiscal year (September 30) thus receive visas that allow them to immigrate and become lawful permanent residents. See 8 U.S.C.
2 U.S. Dep’t of State, Visa Bulletin for July 2016 (June 9, 2016), https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2016/visabulletin-for-july-2016.html.
5

§ 1154(a)(1)(I)(ii)(II) (specifying that lottery-winners are “eligible to receive” diversity visas “only through the end of the specific fiscal year for which they were selected”); 22 C.F.R. § 42.33(a)(1). Once a visa is issued, it is generally valid for six months. See 8 U.S.C. § 1201(c)(1).
During the period between the lottery drawing and the end of the fiscal year, the State Department closely manages the worldwide application process in order to ensure that approximately 50,000 actual diversity visas are issued. See Oppenheimer Decl. ¶¶ 4-7 (J.A. 92-93). The Department uses “visa numbers”—abstract placeholders for potential visas—for this purpose. Id. ¶¶ 4-5; see 22 C.F.R. § 42.33(f). Each of these “numbers” represents, in effect, a license for a consular post to go forward with processing one application. Defendants issue many more than 50,000 visa numbers per year, because they expect a significant fraction to go unused for a variety of reasons. But by monitoring and regulating the distribution of visa numbers to consular posts, Defendants ensure that any deviation from the 50,000 target is relatively slight. See J.A. 45 (setting out government statistics for recent years, which reflect that as few as 46,000 and as many as 54,000 diversity immigrants are sometimes allowed).
B. The Entry Suspension. On March 6, 2017, President Trump issued Executive Order 13,780, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (hereinafter
6

“EO-2”). 82 Fed. Reg. 13,209 (Mar. 9, 2017). Relying on his authority to “suspend the entry of … any class of aliens,” 8 U.S.C. § 1182(f), the President suspended “entry into the United States” by nationals of six countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—while the government undertook a ninety-day review. EO-2, § 2(c), 82 Fed. Reg. at 13,213. In keeping with the President’s statutory authority under § 1182(f), the order did not purport to impose any limit on the processing or issuance of visas.
C. The Challenged Policy. On June 28, 2017, shortly before the entry suspension became effective, the Secretary of State issued a cable to all consular posts announcing the policy challenged here. J.A. 13-20. The cable purported to be “implementing” EO-2. J.A. 15. In fact, however, it converted EO-2’s suspension of entry into a ban on issuing visas—casting aside “the basic distinction between admissibility determinations and visa issuance that runs throughout the [Immigration and Nationality Act (INA)].” Trump v. Hawaii, 138 S. Ct. 2392, 2414 (2018) (“Hawaii II”); see id. at 2414 n.4 (noting that the “concepts of entry and admission . . . are used interchangeably in the INA,” but that “issuance of a visa” is distinct). Specifically, with respect to diversity visas, the cable instructs as follows:
For Diversity Visa (DV) applicants already scheduled for interviews falling after the [EO-2] implementation date of 8:00
7

p.m. EDT June 29, 2017, post should interview the applicants. Posts should interview applicants following these procedures:
a.) Officers should first determine whether the applicant is eligible for the DV, without regard to the E.O. If the applicant is not eligible, the application should be refused according to standard procedures.
b.) If an applicant is found otherwise eligible, the consular officer will need to determine during the interview whether the applicant is exempt from the E.O.’s suspension of entry provision (see paragraphs 10-13), and if not, whether the applicant qualifies for a waiver (paragraphs 14 and 15).
c.) DV applicants who are not exempt from the E.O.’s suspension of entry provision and who do not qualify for a waiver should be refused 221(g) and the consular officer should request an advisory opinion … following current guidance in 9 FAM [Foreign Affairs Manual] 304.3-1.
Based on the Department’s experience with the DV program, we anticipate that very few DV applicants are likely to be exempt from the E.O.’s suspension of entry or to qualify for a waiver. [Consular Affairs] will notify DV applicants from the affected nationalities with scheduled interviews of the additional criteria to allow the potential applicants to determine whether they wish to pursue their application. …
The Kentucky Consular Center (KCC) will continue to schedule additional DV-2017 appointments for cases in which the principal applicant is from one of these six nationalities.
J.A. 16-17 (emphasis added). Defendants thus established a special procedure gov-
erning diversity visa applications by lottery winners whose countries of origin were
subject to entry suspension under EO-2. Under that procedure, Defendants would
first determine whether such a diversity-visa applicant is “otherwise eligible,” apart
8

from EO-2. Id. But even if the applicant was otherwise eligible, she was then “refused” a visa unless and until she established that EO-2 did not bar her entry. Id.3 Thus, anyone who was subject to EO-2’s entry ban was categorically barred from obtaining a visa under the Secretary of State’s visa procedures.
D. Plaintiffs’ Lawsuit And The Preliminary Injunction. Plaintiffs are four nationals of Iran and Yemen who won the diversity-visa lottery for Fiscal Year 2017 (as well as their immediate family members). All promptly submitted their visa applications and completed their consular interviews. See J.A. 99. But, pursuant to the policy described above, each was treated as ineligible for a visa—without respect to the merits of their applications or the statutory and regulatory criteria. Fearing that their applications would not be processed on the merits before the end of the fiscal year, when their eligibility would ordinarily expire, Plaintiffs brought suit on August 3, 2017.4 As Plaintiffs underscored in their complaint, “[t]his case does not challenge the President’s power to issue the Executive Order,” but rather concerns only “the
3 The cable’s instruction that applicants should be “refused 221(g)” is a reference to section 221(g) of the INA, which bars the granting of a visa when the consular official has reason to believe the applicant is “ineligible to receive a visa.” 8 U.S.C. § 1201(g).
4 Mr. Almaqrami was an original plaintiff, alongside others who have since voluntarily dismissed their claims. The other three plaintiff families joined the suit on September 22, 2017. See J.A. 99 & n.5.
9

government’s illegal decision to refuse to issue visas to individuals covered by the Executive Order’s prohibition on entry.” Am. Compl. ¶¶ 5, 7 (J.A. 59) (emphasis added).5 Plaintiffs challenged that refusal under the Administrative Procedure Act and sought declaratory, injunctive, and mandamus relief. Id. ¶¶ 53-67 & A-E (J.A. 72-75). The operative complaint thus asks the district court to, among other things, (1) issue a writ of mandamus compelling Defendants to process Plaintiffs’ visa applications notwithstanding the challenged policy, (2) enjoin Defendants from implementing that policy, and (3) enjoin Defendants to issue visas that would have been issued but for that policy. Id. Plaintiffs also moved for class certification, seeking to represent all winners of the Fiscal Year 2017 diversity lottery whose applications were refused for processing because their home countries were subject to EO-2. See Mot. for Class Cert. at 5, Dkt. 3-1.6
Plaintiffs immediately sought a preliminary injunction or emergency mandamus relief compelling Defendants to process their visa applications before the end
5 See also id. ¶ 10 (J.A. 60) (“Although other cases are currently pending that challenge the Executive Order’s suspension of entry, Plaintiffs do not challenge that suspension of entry here. Instead, Plaintiffs are simply asking that their visa applications be processed consistent with the statute and regulations, so that they can, if eligible, be issued visas before the September 30 deadline, or pursuant to a court order after the September 30 deadline. Plaintiffs do not seek an order permitting them to immediately enter the United States or striking down the Executive Order.”).
6 Citations to “Dkt. __” are to the docket in the district court, No. 1:17-cv1533 (D.D.C.).
10

of the fiscal year. At the time of Plaintiffs’ motion in August 2017, the Supreme

Court had granted certiorari in two cases involving challenges to the legality of EO-

2 itself. See Trump v. IRAP, 137 S. Ct. 2080 (2017) (“IRAP I”). The Court had also

stayed, with respect to foreign nationals without a bona fide relationship to a U.S.

person or entity, the lower courts’ injunctions against enforcement of EO-2. See id.

After the district court expressed concern that it might be improper to adjudicate

Plaintiffs’ claims on the merits while those cases were pending in the Supreme Court

(and while the injunctions against EO-2 were stayed), Plaintiffs added an alternative

request for relief:

J.A. 46.

While Plaintiffs believe that the pending litigation in the Supreme Court is irrelevant to this case, if the Court disagrees, it could also reserve any unused visa numbers until after that case is resolved. … Reserving unused visa numbers would permit this Court to maintain the status quo in advance of the decision of the Supreme Court.

On September 29, 2017, the day before the September 30 deadline, the district

court granted Plaintiffs’ motion in part and denied it in part. J.A. 95-112. First, the

court agreed that “Plaintiffs have a right to have their visa applications processed in

accordance with the INA” and that “State Department consular officers have a clear

duty to do so.” J.A. 106. Second, however, the court declined to “alter the status

quo and grant [Plaintiffs’] specific requests for injunctive and mandamus relief while

the legality of [EO-2] is currently before the Supreme Court.” J.A. 102. Instead, the

11

court “grant[ed] the alternative relief Plaintiffs request[ed] and order[ed] the State Department to reserve any unused visa numbers until after the Supreme Court’s ultimate decision in Trump.” Id.; see also J.A. 109 (directing Defendants to “hold those visa numbers to process Plaintiffs’ visa applications in the event the Supreme Court finds the Executive Order to be unlawful”). This remedy, the district court explained, would “address[] the potential irreparable harm that Plaintiffs face.” J.A. 107. Specifically, it would do so by ensuring that if Plaintiffs’ legal claims were later vindicated, neither the end of the fiscal year, nor an argument that available visa numbers have been exhausted, would prevent them from immigrating to this country. J.A. 107-109.
The district court modeled this relief on two analogous cases in which courts had ordered the processing of diversity-visa applications, notwithstanding the passage of the statutory deadline, because plaintiffs sought emergency relief before the deadline had passed. See Przhebelskaya v. U.S. Bureau of Citizenship & Immigration Servs., 338 F. Supp. 2d 399 (E.D.N.Y. 2004); Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. Ill. 1999). As the district court later explained, Defendants “fail[ed] to specifically argue that the courts in Paunescu and Przhebelskaya improperly ordered the adjudication of visa applications after the statutory deadline,” and Defendants had thereby “conced[ed] that under certain circumstances, equity permits a court to order the processing of visas after September 30.” J.A. 148 n.1. Defendants did not
12

appeal the preliminary injunction ordering them to hold visa numbers for processing after the deadline.
As part of the same injunctive order, the district court also directed Defendants to report, after the end of the fiscal year, the number of visa numbers that were issued but went unused. J.A. 112. Defendants responded that 27,241 visa numbers had been returned unused, and that they had approved only 49,976 diversity immigrants for Fiscal Year 2017. J.A. 118. Defendants thereby confirmed that, by any measure, an adequate number of visas remain available for Plaintiffs to obtain visas in the Fiscal Year 2017 program.
E. The Decision Below. In October 2017, just weeks after the district court ordered Defendants to hold visa numbers for Plaintiffs, the Supreme Court disposed of the challenges to EO-2 without reaching the merits. See Trump v. Hawaii, 138 S. Ct. 377 (2017) (“Hawaii I”); Trump v. IRAP, 138 S. Ct. 353 (2017) (“IRAP II”). Because the relevant provisions of EO-2 had “expired by [their] own terms,” Hawaii I, 138 S. Ct. at 377, the Court vacated the courts of appeals’ judgments upholding injunctions against enforcement of those provisions and remanded for those courts to dismiss the appeals as moot.
13

Defendants then moved to dismiss this case for lack of subject-matter jurisdiction based on mootness.7 They first argued that the September 30 statutory deadline barred them from issuing visas to Plaintiffs—notwithstanding the district court’s preliminary injunction—and that the passage of time had therefore mooted the case. Defendants also argued that Plaintiffs’ suit was, like the Hawaii and IRAP appeals before the Supreme Court, mooted by the expiration of EO-2. Finally, Defendants argued that the district court’s preliminary injunction had conditioned any further relief for Plaintiffs on a decision by the Supreme Court invalidating EO-2; because the Supreme Court had not done that, Defendants said, this case was moot.
The district court granted Defendants’ motion. J.A. 141-154. The court began by correctly rejecting the argument that the fiscal-year deadline barred the court from ordering the State Department to process Plaintiffs’ visa applications and (if appropriate) issue their visas. Because Plaintiffs had sought and obtained relief prior to the statutory deadline, the court explained, it had the equitable power to order the State Department to process Plaintiffs’ applications as the prior order contemplated and the law required. See J.A. 147-148. “[I]f the court deemed it appropriate,” the court concluded, “it could order the State Department to process Plaintiffs’ diversity
7 Defendants also raised merits arguments, but the district court did not reach those issues.
14

visa applications, and the passing of the September 30 deadline did not moot Plaintiffs’ claims.” J.A. 150.
The court then ruled, however, that Plaintiffs’ claims were mooted by the expiration of EO-2. J.A. 150-152. The court acknowledged that “Plaintiffs do not challenge the Executive Order directly.” J.A. 151. Nonetheless, the court reasoned that because “section 2(c)’s expiration moots challenges to the Executive Order, it necessarily follows that challenges to a State Department’s [sic] policy promulgated pursuant to that section of the Executive Order are moot as well.” Id. In responding to Plaintiffs’ contrary arguments, the court also suggested that its September order had predicated any future relief for Plaintiffs on the Supreme Court finding EO-2 unlawful. See id. “Given the Supreme Court’s decision to moot the challenges to the Executive Order and its decision not to rule on the legality of the Executive Order,” the court said, “there is no longer any meaningful relief this court can provide.” J.A. 151-152. This appeal followed.8
SUMMARY OF ARGUMENT Under bedrock Article III principles, this case is not moot. Mootness, like standing, does not concern whether the plaintiff is actually entitled to the requested
8 The district court deferred ruling on Plaintiffs’ class certification motion until after resolving Defendants’ motion to dismiss. See Tr. of 12/21/17 Hr’g at 21, Dkt. 70. Accordingly, the class-certification motion will remain pending on remand if this Court reverses or vacates the dismissal.
15

relief, but merely whether the plaintiff would benefit “if the requested relief were granted.” In re Thornburgh, 869 F.2d 1503, 1511 (D.C. Cir. 1989); see Chafin v. Chafin, 568 U.S. 165, 174 (2013). In other words, a case cannot be moot if the complaint seeks relief that, if granted, would benefit the plaintiff. Here, Plaintiffs seek declaratory, injunctive, and mandamus relief that would result in the processing of their visa applications and—assuming the substantive adequacy of their applications—the ultimate issuance of their visas. That relief would plainly benefit them: It would keep alive their once-in-a-lifetime chance to become Americans. Accordingly, the case cannot be moot.
The district court believed matters were more complicated only because it mischaracterized this case as another challenge to EO-2. In reality, however, this case does not challenge, and has never challenged, the legality of that Executive Order. Plaintiffs’ complaint assumes the validity of EO-2 and challenges only Defendants’ “policy of refusing diversity visas to applicants from Iran, Syria, Sudan, Somalia, Yemen, and Libya, notwithstanding these applicants’ statutory eligibility.” J.A. 75 (emphasis added). As Plaintiffs have maintained from the outset, that policy was never supported by EO-2 at all. The expiration of EO-2 thus has no bearing on Plaintiffs’ claims and in no way alleviates Plaintiffs’ asserted injury. So long as Defendants continue to refuse to process Plaintiffs’ visa applications on their merits,
16

Plaintiffs have a stake in the relief sought in their complaint, and the case cannot be moot.
Although the district court’s opinion is not clear on this point, the court may also have made a separate determination that this case is moot on another ground— namely, that the court’s prior injunctive order, issued in September 2017, contemplated that the Supreme Court would rule on the merits of EO-2. If the opinion below does encompass such an alternative holding, however, that reading of the court’s prior order—as somehow making a merits ruling by the Supreme Court, in other pending cases, a condition precedent for adjudicating Plaintiffs’ case at all— is erroneous and an abuse of discretion.
Indeed, this reading would render the court’s earlier order inexplicable and arbitrary. As the September opinion and order make plain, the injunction’s purpose was to hold potential visas in reserve for Plaintiffs so that they could obtain their visas if, when the district court later reached the question, it determined that Plaintiffs were legally entitled to have their applications processed on their merits. Answering that question might have been easy if the Supreme Court had invalidated EO-2, because EO-2 was the government’s only asserted rationale for violating the clear commands of the statutory and regulatory scheme governing the diversity visa program. But the question of whether the State Department should have processed
17

the visa applications remains live even though the Supreme Court did not have occasion to decide EO-2’s legality. Defendants’ refusal to process Plaintiffs’ visa applications contravened governing statutes and regulations, and still does today— regardless of whether EO-2 was lawful.
Finally, no alternative ground supports the judgment below. The district court correctly rejected the government’s reliance on the fiscal-year deadline because, as courts have unanimously held, a district court has the power to require the State Department to process an application after that deadline if the plaintiff sought and obtained predicate judicial relief beforehand. In an abundance of caution, Plaintiffs also explain below why the latest iteration of the President’s entry suspension— which is expressly temporary and sets forth an extensive waiver regime—does not divest Plaintiffs of their concrete stake in obtaining their visas.
In sum, the parties remain locked in a live dispute, and this Court should therefore reverse and remand for the district court to resolve that dispute on the merits.
ARGUMENT I. Standard of Review.
This Court “reviews de novo the District Court’s dismissal of a complaint for lack of subject matter jurisdiction.” Munsell v. Dep’t of Agric., 509 F.3d 572, 578 (D.C. Cir. 2007).
18

II. This Case Is Not Moot. A. Plaintiffs Have An Ongoing Interest In The Relief They Seek. Because the “case-or-controversy requirement subsists through all stages of
federal judicial proceedings,” federal courts lack jurisdiction to decide disputes that have become moot. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). But the test for mootness is demanding: “[A] case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Chafin, 568 U.S. at 172 (quoting Knox v. SEIU, 567 U.S. 298, 307-08 (2012)) (emphasis added). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Knox v. SEIU, 567 U.S. 298, 307-08 (2012).
Furthermore, both the Supreme Court and this Court have warned against “confus[ing] mootness with the merits.” Chafin, 568 U.S. at 174. To determine Article III jurisdiction, a court does not conduct “an inquiry into the scope of the court’s power to grant relief,” but rather “assumes that a decision on the merits would be favorable and that the requested relief would be granted; it then goes on to ask whether that relief would be likely to redress the party’s injury.” Thornburgh, 869 F.2d at 1511; see Miller v. Christopher, 96 F.3d 1467, 1470 (D.C. Cir. 1996), aff’d sub nom. Miller v. Albright, 523 U.S. 420 (1998). Doubts about “the legal availability of a certain kind of relief” and concerns that the district court “lacks the
19

authority” to award a requested remedy thus go to “the merits”; they say nothing about the court’s subject-matter jurisdiction. Chafin, 568 U.S. at 174.
Here, Plaintiffs have a clear, continuing interest in obtaining the relief they seek in their complaint. Cf. Anderson v. Carter, 802 F.3d 4, 10 (D.C. Cir. 2015) (evaluating mootness by examining “[t]he prayer for relief in [the plaintiff’s] complaint”). If Plaintiffs prevail in full, they will obtain a declaration that Defendants’ policy of refusing to process their visa applications is unlawful; an injunction against enforcement of that policy; an injunction “directing the issuance of visas that would have been issued but for the State Department’s” policy; and a writ of mandamus directing Defendants to adjudicate Plaintiffs’ visa applications and issue their visas. Am. Compl. ¶¶ A-E (J.A. 74-75). Naturally, it matters a great deal to Plaintiffs whether they obtain that relief. As the district court acknowledged, they “faced and overcame” “enormous statistical odds” in the diversity lottery. J.A. 152. If this case concludes without the adjudication of their applications, most of them will lose forever that rare opportunity to become Americans, and their significant sacrifices in pursuit of that dream (including leaving jobs, selling homes, and leaving school in anticipation of coming to America) will be for naught. If their applications are processed according to the governing law and regulations, by contrast, their visas will issue and their hopes of immigrating to this country will remain very much alive. Thus, this case is not moot.
20

As explained below, none of the alleged mooting events undermines that straightforward conclusion. First, the expiration of EO-2 does not moot this case because it has not prompted Defendants to process Plaintiffs’ visa applications. See infra § II.B. Second, the Supreme Court’s failure to resolve challenges to EO-2 on their merits does not moot this case because it is simply irrelevant to Plaintiffs’ interest in having their visa applications adjudicated. See infra § II.C. Third, the passage of the September 30, 2017 deadline does not moot this case, as the district court correctly held, because it has no bearing on the district court’s jurisdiction— and, in any event, the deadline was properly suspended with respect to Plaintiffs by the court’s September injunction. See infra § II.D. And fourth, although neither the government nor the district court has suggested that the latest iteration of the President’s entry suspension deprives Plaintiffs of a concrete stake in obtaining their visas, Plaintiffs explain below why that circumstance does not moot this case either. See infra § II.E.
B. The Expiration Of EO-2 Does Not Moot This Case. Instead of asking whether Plaintiffs have a continuing stake in the relief they have sought—the traditional measure of mootness—the district court simply pointed to the Supreme Court’s decision to vacate, on mootness grounds, two court of appeals decisions upholding injunctions against enforcement of EO-2. See J.A. 150 (citing IRAP, 138 S. Ct. at 353, and Hawaii, 138 S. Ct. at 377). Because the Supreme
21

Court concluded that those appeals “no longer present[ ] a ‘live case or controversy,’” the district court reasoned, this case must not present one either. Id. (quoting IRAP, 138 S. Ct. 353).
But that reasoning fails to account for fundamental differences between the relief sought in this case and the relief sought in the challenges to EO-2. The Hawaii and IRAP appeals were mooted by the expiration of EO-2 for a simple reason: The Executive Order’s expiration made the relief sought and obtained in those cases meaningless. Specifically, in both cases, the government had appealed from district court orders enjoining the government “from enforcing Section 2(c) of Executive Order 13,780.” Order at 2, IRAP v. Trump, No. 8:17-cv-361-TDC (D. Md. Mar. 16, 2017), Dkt. 150; see Order at 23, Hawaii v. Trump, No. 1:17-cv-50-DKW (D. Haw. Mar. 29, 2017), Dkt. 270 (similar). Likewise, the underlying complaints sought only declaratory and injunctive relief barring enforcement of “President Trump’s Executive Order of March 6, 2017.” Second Amended Complaint at 37, Hawaii v. Trump, No. 1:17-cv-50-DKW (D. Haw. Mar. 8, 2017), Dkt. 64; see First Amended Complaint at 52, IRAP v. Trump, No. 8:17-cv-361-TDC (D. Md. Mar. 10, 2017), Dkt. 93 (similar). Once EO-2 ceased to exist, the plaintiffs lost all stake in enjoining that order and the government lost all stake in overturning the decisions enjoining that order.
22

The relief that Plaintiffs seek here is entirely different. As detailed above, Plaintiffs do not seek relief from the operation or enforcement of EO-2, but rather seek relief from the State Department’s refusal to process their visa applications as part of the Fiscal Year 2017 diversity visa program—a refusal that continues to this day. Supra, at 20. Thus, the expiration of EO-2 in no way vitiates Plaintiffs’ various specific demands for relief—including for an injunction against “implementing the policy of refusing diversity visas to applicants from Iran, Syria, Sudan, Somalia, Yemen, and Libya, notwithstanding these applicants’ statutory eligibility”; an injunction “directing the issuance of visas that would have been issued but for the State Department’s illegal implementation of the Executive Order”; and a writ of mandamus “directing … consular officials [to] adjudicate diversity immigrant visa applications and issue diversity immigrant visas to visa applicants from Iran, Syria, Sudan, Somalia, Yemen, and Libya.” Id.
To be sure, Plaintiffs alleged that Defendants’ reason for refusing to process their applications was Defendants’ mistaken view that this refusal was warranted by EO-2. See Am. Compl. ¶¶ 6, 30-34 (J.A. 59, 64-66). But Plaintiffs simply want an order directing Defendants to process their visa applications under the ordinary, merits-based criteria, as part of the Fiscal Year 2017 program. See id. ¶¶ A-E (J.A. 7475). Indeed, Defendants have never claimed that their firm stance against processing Plaintiffs’ visa applications (or those of other Fiscal Year 2017 lottery-winners from
23

their countries) changed with the expiration of EO-2 at all. Thus, the expiration of EO-2 cannot moot this case.
C. The Supreme Court’s Failure To Reach The Merits In Hawaii and IRAP Does Not Moot This Case.
The district court’s mootness holding rested mainly on the expiration of EO2, as just discussed. See J.A. 150-152; see also J.A. 150 (“Mootness Based on the Expiration of Section 2(c) of the Executive Order”). After laying out that rationale, however, the district court briefly responded to “Plaintiffs’ argument that the Supreme Court’s decision … ‘clears the way for this litigation to proceed’”—i.e., Plaintiffs’ argument that the non-merits disposition of the Hawaii and IRAP cases should free the district court of its prior hesitation to address Plaintiffs’ claims while allegedly related issues were pending in the Supreme Court. J.A. 151. By way of answering that argument, the court said that its September injunction holding visa numbers for Plaintiffs had “expressly predicated a future order requiring the State Department to process Plaintiffs’ visa applications on ‘the Supreme Court find[ing] the Executive Order to be unlawful,’” thereby making a merits ruling in the Hawaii and IRAP cases “a condition precedent to the court granting Plaintiffs the ultimate relief they seek.” Id. (quoting J.A. 112).
Because this analysis is both curt and interwoven with the district court’s faulty analysis based on the expiration of EO-2, it should not be regarded as an independent alternative holding at all. Rather, if this Court agrees that the district
24

court’s principal mootness theory is erroneous, see supra § II.B, it would be appropriate to vacate and remand so that the district court can reconsider its conclusion freed of the error that drove its analysis. See, e.g., Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1429 (2017) (vacating and remanding where “[t]he court’s opinion leaves us uncertain as to whether … [there was] an impermissible taint” of one holding by another); Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530, 534 (2012) (similar); Colorado v. Connelly, 479 U.S. 157, 171 n.4 (1986) (similar).
If this Court does consider the district court’s “condition precedent” reasoning as an alternative holding, however, it should reject it. There are two problems with this theory. First, the district court’s narrow reading of its prior order, even if sound, has nothing to do with mootness. As the court acknowledged elsewhere in its opinion, “if the court deemed it appropriate, it could order the State Department to process Plaintiffs’ diversity visa applications.” J.A. 150. And Plaintiffs stand to benefit from such an order, irrespective of the terms of the district court’s earlier injunction. See supra § II.A. That fact resolves the mootness question. The district court’s contrary conclusion—that the court somehow divested itself of subject-matter jurisdiction by including particular language in its earlier order—does not make sense and lacks any apparent precedent.
Second, in any event, the district court’s reading of its earlier order as establishing a rigid and unexplained “condition precedent” is simply untenable. As the
25

court explained in its preliminary injunction opinion, the point of preliminary relief is “to preserve the relative positions of the parties until a trial on the merits can be held.” J.A. 102 (citation omitted). Here, the court did that by “grant[ing] the alternative relief Plaintiffs request[ed] and order[ing] the State Department to reserve any unused visa numbers until after the Supreme Court’s ultimate decision in Trump.” Id. That way, the court explained, it could resolve the merits of Plaintiffs’ claims with the benefit of any Supreme Court guidance and without risking intruding on the interim status quo established by the Supreme Court’s stay order—and yet could also avoid subjecting Plaintiffs to the ordinary consequences of the fiscal-year deadline on account of the court-imposed delay. See J.A. 107 (explaining that the order “address[ed] the potential irreparable harm that Plaintiffs face” through the imminent lapsing of their eligibility).
It is true that the court’s separate order, by its terms, directed Defendants to “hold [unused] visa numbers to process Plaintiffs’ visa applications in the event the Supreme Court finds the Executive Order to be unlawful.” J.A. 112; accord J.A. 107 (“Defendants are ordered to … reserve any unused visa numbers for FY 2017 for processing following the Supreme Court’s decision (should the Court rule in Plaintiffs’ favor)[.]”). But the court’s references to a favorable outcome in the Supreme Court litigation simply reflected the recognition that, if the Supreme Court invalidated EO-2, Plaintiffs would prevail in this case a fortiori. That is because the
26

government offered no defense of its actions here other than the argument that the State Department’s policy was authorized by EO-2. In the end, the Supreme Court did not make the district court’s task that straightforward. But while the absence of a controlling decision by the Supreme Court may have complicated the task before the district court, it in no way undermines Plaintiffs’ legal theory or entitlement to relief in this case. Indeed, neither the district court nor Defendants have even attempted to explain why the non-merits resolution of the Hawaii and IRAP cases should foreclose Plaintiffs’ case from being heard, with or (as it turns out) without guidance on EO-2 from the Supreme Court.
The September injunction should not be interpreted in a fashion that renders it arbitrary and irrational, particularly when the actual purpose and scope of the injunction—to preserve the availability of relief—are so clear from the accompanying opinion (as well as the request for relief that it purported to grant). See Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171, 1178 (10th Cir. 2005) (discerning the “inten[t]” of a “district court’s order” by “[v]iewing the order as a whole and in context”); Gjertsen v. Bd. of Election Comm’rs of City of Chicago, 751 F.2d 199, 201 (7th Cir. 1984) (determining the “proper characterization of [an] order” based on “the reasons the district judge gave for entering [it]”); see also Cooper v. Harris, 137 S. Ct. 1455, 1480-81 (2017) (rejecting a proposed interpretation of an opinion because the opinion “nowhere attempts to explicate or justify the categorical rule
27

that the [party] claims to find there,” and because “given the strangeness of that rule … we cannot think that the Court adopted it without any explanation”). Because the district court’s construction of the September order is manifestly wrong (and would not go to mootness in any event, see supra at 25), it cannot independently support the court’s judgment.
D. The End Of The Fiscal Year Does Not Moot This Case Or Bar Plaintiffs’ Claims.
In the district court, Defendants argued that this case should be dismissed because the ordinary deadline for issuing diversity visas (September 30, 2017) has passed. See 8 U.S.C. § 1154(a)(1)(I)(ii)(II) (specifying that lottery-winners are “eligible to receive” diversity visas “only through the end of the specific fiscal year for which they were selected”). The district court correctly rejected that argument, but Plaintiffs anticipate that Defendants may ask this Court to affirm on that alternative ground. Plaintiffs also recognize that, insofar as the deadline issue is cast as a matter of mootness (albeit wrongly, see infra § II.D.1), this Court has an independent obligation to determine subject-matter jurisdiction. Plaintiffs therefore address the issue briefly here.
1. The Fiscal-Year Deadline Does Not Moot This Case. Initially, any suggestion that the fiscal-year deadline bears on mootness—an aspect of subject-matter jurisdiction—is misplaced. The Supreme Court’s decision in Chafin v. Chafin, 568 U.S. 165 (2013), explains why. In Chafin, a father sought
28

a court order, pursuant to the Child Abduction Convention, “re-returning” his child to the United States (after she had been “returned” to her mother in Scotland). As the Court explained, the mother “argue[d] that th[e] case [was] moot because the District Court lacks the authority to issue a re-return order either under the Convention or pursuant to its inherent equitable powers.” Id. at 174 (emphasis added). The Court continued: “But that argument—which goes to the meaning of the Convention and the legal availability of a certain kind of relief—confuses mootness with the merits.” Id. As long as an order in the father’s favor could benefit him, and as long as the father’s claim was not “so implausible that it is insufficient to preserve jurisdiction,” the case was not moot. Id.9
The same analysis holds here. Whether the district court can properly order the relief Plaintiffs seek, in light of the statutory deadline, is a pure merits question concerning “equitable principles” and the “legal availability of a certain kind of relief” under the circumstances. Chafin, 568 U.S. at 174. It does not affect whether
9 Powell v. McCormack, 395 U.S. 486 (1969), stands for the same proposition. See Chafin, 568 U.S. at 174. In Powell, the plaintiff’s only surviving claim sought backpay, and the defendants argued that he had brought that claim in the wrong court—meaning that, according to the defendants, the court had no authority to grant him any relief. 395 U.S. at 500. But there, too, the Supreme Court rejected the defendants’ claim that this state of affairs mooted the case, explaining that the defendants’ argument “confuse[d] mootness with whether [the plaintiff] has established a right to recover.” Id.
29

Plaintiffs would benefit from such an order, so it has no bearing on mootness or jurisdiction.10
2. The Fiscal-Year Deadline Also Does Not Warrant Dismissal On The Merits.
Because the fiscal-year deadline raises no mootness issue, this Court need go no further to reverse the district court’s jurisdictional dismissal. Even if the Court elects to consider the significance of the deadline for the merits, however, the district court correctly determined that the statutory deadline is no bar to relief here.
At least three courts have now held that a court has equitable authority to compel the processing of visa applications, even after the September 30 deadline, if the court intervenes in the administrative process before the deadline has passed. See J.A. 147-150 (opinion below); Przhebelskaya v. U.S. Bureau of Citizenship & Immigration Servs., 338 F. Supp. 2d 399 (E.D.N.Y. 2004); Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. Ill. 1999); see also Marcetic v. INS, No. 97-C-7018, 1998 WL 173129, at *1 (N.D. Ill. Apr. 6, 1998) (similar based on immigration judge’s order). And several other courts, addressing cases in which plaintiffs did not obtain relief
10 Defendants have not claimed that they would defy a court order to process Plaintiffs’ visa applications on their merits. Nor is there any indication that the government has ever refused to comply with such orders in the past. See Iddir v. INS, 301 F.3d 492, 500 (7th Cir. 2002) (noting that “the INS has, in the past, adjudicated the status of DV Program participants after the end of the fiscal year of the program and issued visas”). In any event, the prospect of a defendant’s noncompliance cannot moot a case. See Chafin, 568 U.S. at 175-76.
30

prior to the deadline, have taken care to distinguish that scenario from this one.11
Conversely, Defendants have been unable to identify any case in which relief has
ever been denied to a lottery-winner who secured a judicial order compelling adju-
dication or freezing the status quo before the end of the fiscal year.
This rule makes sense. Courts have clear authority to compel the government
to process visa applications in accordance with the law. But if a court had no power
to compel action after the September 30 deadline, this authority would be meaning-
less: The government could just sit on applications through the end of the fiscal year.
As the Seventh Circuit has explained, “[a]llowing [Defendants] to claim inability to
issue visas at that point would impinge the authority of the court.” Iddir v. INS, 301
F.3d 492, 501 n.2 (7th Cir. 2002) (citing Paunescu, 76 F. Supp. 2d at 902-03, and
Marcetic, 1998 WL 173129, at *2-3). Thus, there is little dispute that when a court
orders visa-processing before the deadline, but the government fails to comply, the
court has continuing authority to vindicate its order. In fact, as the district court said,
Defendants have “conced[ed] that under [those] circumstances, equity permits a
11 See, e.g., Ahmed v. DHS, 328 F.3d 383, 387 (7th Cir. 2003) (explaining that under Seventh Circuit precedent, “the case would have been different if it had been filed before the end of the visa year … and if the district court had acted within that time period”); Coraggioso v. Ashcroft, 355 F.3d 730, 734 n.8 (3d Cir. 2004) (noting that if petitioner had “sought relief prior to the expiration of the 1998 fiscal year, our analysis may have been different,” and that “[t]he Seventh Circuit has explicitly approved” cases to that effect); Keli v. Rice, 571 F. Supp. 2d 127, 135 (D.D.C. 2008) (distinguishing between cases in which courts had “order[ed] any injunctive relief before the applicable fiscal year ended” and those in which they had not).
31

court to order the processing of visas after September 30.” J.A. 148 n.1; see Defts.’ Mem. of Points and Authorities at 14, Dkt. 53-1 (“The takeaway from Paunescu and Przhebelskaya … [is] that courts have inherent power to enforce their prior orders.”).
But as the district court also correctly explained, there is no material difference between the district court’s September order holding visa numbers for Plaintiffs for later processing and an order directing the government to immediately process visa applications. Under the district court’s September order—which Defendants did not appeal—“the State Department was required to not merely reserve the unused visa numbers, but to do so for a specific purpose: the future processing of Plaintiffs’ visa applications.” J.A. 148. Thus, in this case as in others, “the court is entitled to enforce its prior order” by directing the processing of visa applications, according to law, after the deadline has passed. J.A. 150. Certainly, the district court’s decision to delay its ultimate decision in deference to the Supreme Court does not strip the district court of its equitable powers.
In addition, the district court’s order freezing the pre-deadline status quo with respect to Plaintiffs fits comfortably within the letter and spirit of the All Writs Act, in which Congress expressly authorized courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). As the Supreme Court has explained in construing this traditional authority, a “court must bring considered judgment to bear
32

on the matter before it, but that cannot always be done quickly enough to afford relief.” Nken v. Holder, 556 U.S. 418, 427 (2009). In such circumstances, “[t]he choice for a reviewing court should not be between justice on the fly or participation in what may be an ‘idle ceremony.’” Id. (citation omitted). Rather, a court’s “traditional equipment for the administration of justice” permits it to grant “interim relief” that temporarily suspends legal consequences, preserving the court’s jurisdiction and ensuring that it can “act responsibly” and resolve the merits in due course. Id. That is exactly what the district court did here.12
In any event, Defendants are certainly in no position to complain about the district court’s decision not to simply order immediate visa-processing in September, as the courts in Przhebelskaya and Paunescu did. That choice only benefited Defendants, by sparing them an immediate directive to process visa applications they did not wish to process. It would be perverse in the extreme if the district court’s decision to defer resolution of the merits—to Defendants’ benefit, and over Plaintiffs’ objection—had the effect of denying Plaintiffs any opportunity to prove their entitlement to relief.
12 Because this is an APA case, the district court also enjoyed comparable, overlapping authority to “issue all necessary and appropriate process … to preserve status or rights pending conclusion of the review proceedings.” 5 U.S.C. § 705.
33

Finally, if this Court concludes that the district court’s decision not to order visa processing in September 2017 somehow bars Plaintiffs’ claims, it should remand and permit the district court to enter an order mandating visa-processing as of that time nunc pro tunc. “An order nunc pro tunc (literally ‘now for then’) is an equitable remedy traditionally used to apply a court’s own order or judgment retroactively.” Ethyl Corp. v. Browner, 67 F.3d 941, 945 (D.C. Cir. 1995). Such orders are “available in order to promote fairness to the parties, and as justice may require.” Id. (quotation marks omitted). They are particularly appropriate where, as here, “the delay in rendering a judgment or a decree arises from the act of the court” or “any other cause not attributable to the laches of the parties.” Mitchell v. Overman, 103 U.S. 62, 64-65 (1880). In this case, Plaintiffs sought relief nearly two months before the end of the fiscal year, and the district court found it appropriate to postpone resolution of the merits until after the fiscal year. If this Court determines that an order actually compelling visa processing needed to issue before that time to be enforceable after the deadline, the district court will have the power (indeed, the “duty”) to enter such an order retroactively and “see that the parties shall not suffer by the delay.” Id. at 65.
E. The Current Entry Suspension Does Not Moot This Case. Because this appeal concerns mootness, one other circumstance warrants comment. When EO-2 lapsed, the President ordered a new entry suspension for
34

nationals of Iran and Yemen, among other countries. See Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 24, 2017) (“EO-3”). As a result, Plaintiffs may not be able to use their visas immediately upon issuance. But the government has never suggested that EO-3 moots this case, and for good reason.
First, EO-3, like its predecessor, is expressly temporary. As the Supreme Court emphasized in reversing the preliminary injunctions against enforcement of this latest order, the order’s “‘conditional restrictions’ will remain in force only so long as necessary to ‘address’ the identified ‘inadequacies and risks’ within the covered nations,” and the government claims that it will “‘relax or remove’ the entry restrictions ‘as soon as possible.’” Hawaii II, 138 S. Ct. at 2410 (quoting EO-3, pmbl. and §1(h)) (alterations omitted; emphasis added). “To that end, [EO-3] establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be modified or terminated.” Id. (citing EO-3, §§ 4(a), 4(b)). “Indeed, after the initial review period, the President determined that Chad had made sufficient improvements to its identity-management protocols, and he accordingly lifted the entry suspension on its nationals.” Id.; see Proclamation No. 9723, 83 Fed. Reg. 15,937, 15,938 (Apr. 10, 2018) (delisting Chad and reporting that “identity-management and information-sharing practices are improving globally”). The President has also removed Sudan and Iraq from the entry suspension since he first imposed it in January 2017—further confirming that the scope of the
35

suspension is far from static. See Hawaii II, 138 S. Ct. at 2422. Plaintiffs thus have reasonable grounds to expect that the entry suspensions for their countries might soon be lifted as well.
Second, Plaintiffs also have reason to expect that they may qualify for a waiver under EO-3 at some point during the validity period of their visas. See Hawaii II, 138 S. Ct. at 2422 (emphasizing that EO-3 “creates a waiver program open to all covered foreign nationals seeking entry as immigrants”); see also id. at 242930 (Breyer, J., dissenting) (detailing “the Proclamation’s elaborate system of exemptions and waivers” and explaining that “[t]he Proclamation does not exclude individuals from the United States if they meet the criteria for a waiver or exemption” (quotation marks omitted)). But Defendants’ refusal to process Plaintiffs’ applications, if it becomes final, will preclude Plaintiffs from seeking entry waivers on various grounds, pursuant to EO-3’s criteria, during the pendency of their visas. Cf. CC Distributors, Inc. v. United States, 883 F.2d 146, 150 (D.C. Cir. 1989) (“[A] plaintiff suffers a constitutionally cognizable injury by the loss of an opportunity to pursue a benefit … even though the plaintiff may not be able to show that it was certain to receive that benefit had it been accorded the lost opportunity.”). For this
36

reason, too, Plaintiffs stand to benefit from an order compelling the processing and
ultimate issuance of their visas.13
Finally, because Sudan was covered by EO-2 but is not covered by EO-3, EO-
3 is irrelevant for Sudanese members of the putative class. Accordingly, if the Court
somehow found that EO-3 mooted this case with respect to the named plaintiffs, the
proper course would be to remand so that Sudanese class members may intervene as
new lead plaintiffs. See 1 William B. Rubenstein, Newberg on Class Actions § 2:17
(5th ed. 2011) (“When mootness of the named plaintiff’s claims occurs, intervention
by absentee members is freely allowed in order to substitute them as class represent-
atives.”); see also Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 331 (1980)
(explaining that “when questions touching on justiciability are presented in the class
action context,” a court must account for “the rights of putative class members as
potential intervenors”); Thornburgh, 869 F.2d at 1509 (collecting cases).
13 At a minimum, both of the issues noted above—i.e., how long the remaining countries will likely remain subject to a travel suspension, and how likely Plaintiffs are to qualify for waivers—turn on factual issues that were not raised or developed below. Accordingly, dismissal on the existing record would be improper. See, e.g., Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981) (explaining that, while “factual determinations decisive of a motion to dismiss for lack of jurisdiction are within the court’s power,” “the district court must give the plaintiff an opportunity for discovery and for a hearing that is appropriate to the nature of the motion to dismiss”); see also Weisberg v. U.S. Dep’t of Justice, 543 F.2d 308, 310 (D.C. Cir. 1976) (holding that a dismissal on mootness grounds based on matter outside the pleadings is held to the summary judgment standard).
37

CONCLUSION For the foregoing reasons, this Court should reverse the district court’s order and remand for further proceedings.
38

Dated: September 4, 2018

Respectfully submitted,

Samer E. Khalaf Abed A. Ayoub Yolanda Rondon AMERICAN-ARAB ANTIDISCRIMINATION COMMITTEE 1705 DeSales Street, N.W., Suite 500 Washington, D.C. 20036 Tel: 202-244-2990 Skhalaf@adc.org

/s/ Matthew E. Price Matthew E. Price Max J. Minzner Benjamin M. Eidelson JENNER & BLOCK LLP 1099 New York Ave. NW, Suite 900 Washington, DC 20001 Tel: (202) 639-6000 Fax: (202) 639-6066 mprice@jenner.com

Karen C. Tumlin Esther Sung NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd, Suite 1600 Los Angeles, CA 90010 Tel: (213) 639-3900 tumlin@nilc.org
Justin B. Cox NATIONAL IMMIGRATION LAW CENTER PO Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 cox@nilc.org
Arthur B. Spitzer Scott Michelman AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, DC 20005 Tel: (202) 457-0800 aspitzer@acludc.org

Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 ojadwat@aclu.org
Cody H. Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 cwofsy@aclu.org samdur@aclu.org

39

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 9,164 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f) and Circuit Rule 32(e)(1). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2013, Times New Roman 14-point. Dated: September 4, 2018
/s/ Matthew E. Price Matthew E. Price

CERTIFICATE OF SERVICE I hereby certify that on September 4, 2018, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Matthew E. Price Matthew E. Price

ADDENDUM

INDEX 8 U.S.C. § 1153(c) ................................................................................................... 1a 8 U.S.C. § 1154(a)(1)(I)...........................................................................................4a 8 U.S.C. § 1182(f) .................................................................................................... 4a Exec. Order No. 13780, § 2(c), 82 Fed. Reg. 13209 (Mar. 9, 2017).......................5a 22 C.F.R § 40.06 ...................................................................................................... 6a 22 C.F.R. § 42.33(a)(1), (g) ..................................................................................... 6a

8 U.S.C. § 1153 § 1153. Allocation of immigrant visas
**** (c) Diversity immigrants
(1) In general Except as provided in paragraph (2), aliens subject to the worldwide level specified in section 1151(e) of this title for diversity immigrants shall be allotted visas each fiscal year as follows:
(A) Determination of preference immigration The Attorney General shall determine for the most recent previous 5-fiscalyear period for which data are available, the total number of aliens who are natives of each foreign state and who (i) were admitted or otherwise provided lawful permanent resident status (other than under this subsection) and (ii) were subject to the numerical limitations of section 1151(a) of this title (other than paragraph (3) thereof) or who were admitted or otherwise provided lawful permanent resident status as an immediate relative or other alien described in section 1151(b)(2) of this title. (B) Identification of high-admission and low-admission regions and high-admission and low-admission states The Attorney General--
(i) shall identify-(I) each region (each in this paragraph referred to as a “high-admission region”) for which the total of the numbers determined under subparagraph (A) for states in the region is greater than 1/6 of the total of all such numbers, and (II) each other region (each in this paragraph referred to as a “low-admission region”); and
(ii) shall identify-(I) each foreign state for which the number determined under subparagraph (A) is greater than 50,000 (each such state in this paragraph referred to as a “high-admission state”), and (II) each other foreign state (each such state in this paragraph referred to as a “low-admission state”).
1a

(C) Determination of percentage of worldwide immigration attributable to high-admission regions
The Attorney General shall determine the percentage of the total of the numbers determined under subparagraph (A) that are numbers for foreign states in high-admission regions.
(D) Determination of regional populations excluding high-admission states and ratios of populations of regions within low-admission regions and highadmission regions
The Attorney General shall determine--
(i) based on available estimates for each region, the total population of each region not including the population of any high-admission state;
(ii) for each low-admission region, the ratio of the population of the region determined under clause (i) to the total of the populations determined under such clause for all the low-admission regions; and
(iii) for each high-admission region, the ratio of the population of the region determined under clause (i) to the total of the populations determined under such clause for all the high-admission regions.
(E) Distribution of visas
(i) No visas for natives of high-admission states
The percentage of visas made available under this paragraph to natives of a high-admission state is 0.
(ii) For low-admission states in low-admission regions
Subject to clauses (iv) and (v), the percentage of visas made available under this paragraph to natives (other than natives of a high-admission state) in a low-admission region is the product of--
(I) the percentage determined under subparagraph (C), and
(II) the population ratio for that region determined under subparagraph (D)(ii).
(iii) For low-admission states in high-admission regions
Subject to clauses (iv) and (v), the percentage of visas made available under this paragraph to natives (other than natives of a high-admission state) in a high-admission region is the product of--
(I) 100 percent minus the percentage determined under subparagraph (C), and
2a

(II) the population ratio for that region determined under subparagraph (D)(iii). (iv) Redistribution of unused visa numbers If the Secretary of State estimates that the number of immigrant visas to be issued to natives in any region for a fiscal year under this paragraph is less than the number of immigrant visas made available to such natives under this paragraph for the fiscal year, subject to clause (v), the excess visa numbers shall be made available to natives (other than natives of a highadmission state) of the other regions in proportion to the percentages otherwise specified in clauses (ii) and (iii). (v) Limitation on visas for natives of a single foreign state The percentage of visas made available under this paragraph to natives of any single foreign state for any fiscal year shall not exceed 7 percent. (F) “Region” defined Only for purposes of administering the diversity program under this subsection, Northern Ireland shall be treated as a separate foreign state, each colony or other component or dependent area of a foreign state overseas from the foreign state shall be treated as part of the foreign state, and the areas described in each of the following clauses shall be considered to be a separate region: (i) Africa. (ii) Asia. (iii) Europe. (iv) North America (other than Mexico). (v) Oceania. (vi) South America, Mexico, Central America, and the Caribbean. (2) Requirement of education or work experience An alien is not eligible for a visa under this subsection unless the alien-(A) has at least a high school education or its equivalent, or (B) has, within 5 years of the date of application for a visa under this subsection, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience. (3) Maintenance of information
3a

The Secretary of State shall maintain information on the age, occupation, education level, and other relevant characteristics of immigrants issued visas under this subsection.
****
8 U.S.C. § 1154
§ 1154. Procedure for granting immigrant status
(a) Petitioning procedure
****
(1)(I)(i) Any alien desiring to be provided an immigrant visa under section 1153(c) of this title may file a petition at the place and time determined by the Secretary of State by regulation. Only one such petition may be filed by an alien with respect to any petitioning period established. If more than one petition is submitted all such petitions submitted for such period by the alien shall be voided.
(ii)(I) The Secretary of State shall designate a period for the filing of petitions with respect to visas which may be issued under section 1153(c) of this title for the fiscal year beginning after the end of the period.
(II) Aliens who qualify, through random selection, for a visa under section 1153(c) of this title shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected.
(III) The Secretary of State shall prescribe such regulations as may be necessary to carry out this clause.
(iii) A petition under this subparagraph shall be in such form as the Secretary of State may by regulation prescribe and shall contain such information and be supported by such documentary evidence as the Secretary of State may require.
****
8 U.S.C. § 1182
§ 1182. Inadmissible aliens
****
(f) Suspension of entry or imposition of restrictions by President
Whenever 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, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose
4a

on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
**** Executive Order No. 13780, 82 Fed. Reg. 13209 (Mar. 9, 2017) Protecting the Nation From Foreign Terrorist Entry Into the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:
**** Sec. 2. Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period.
**** (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.
****
5a

22 C.F.R. § 40.6 § 40.6 Basis for refusal. A visa can be refused only upon a ground specifically set out in the law or implementing regulations. The term “reason to believe”, as used in INA 221(g), shall be considered to require a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa as provided in the INA and as implemented by the regulations. Consideration shall be given to any evidence submitted indicating that the ground for a prior refusal of a visa may no longer exist. The burden of proof is upon the applicant to establish eligibility to receive a visa under INA 212 or any other provision of law or regulation.
**** 22 C.F.R. § 42.33 § 42.33 Diversity immigrants.
(a) General—(1) Eligibility to compete for consideration under section 203(c). An alien will be eligible to compete for consideration for visa issuance under INA 203(c) during a fiscal year only if he or she is a native of a low-admission foreign state, as determined by the Secretary of Homeland Security pursuant to INA 203(c)(1)(E), with respect to the fiscal year in question; and if he or she has at least a high school education or its equivalent or, within the five years preceding the date of application for a visa, has two years of work experience in an occupation requiring at least two years training or experience. The eligibility for a visa under INA 203(c) ceases at the end of the fiscal year in question. Under no circumstances may a consular officer issue a visa or other documentation to an alien after the end of the fiscal year during which an alien possesses diversity visa eligibility.
**** (g) Further processing. The Department will inform applicants whose petitions have been approved pursuant to paragraph (c) of this section of the steps necessary to meet the requirements of INA 222(b) in order to apply formally for an immigrant visa.
****
6a

 
 933 F.3d 774 (2019)
Hamed Sufyan Othman ALMAQRAMI, et al., Appellants v.
Michael R. POMPEO, in His Official Capacity as Secretary of State and John Does, #1-#50, In Their Official Capacity as the Consular Officials
Responsible for Issuing Diversity Visas, Appellees.
No. 18-5156.
United States Court of Appeals, District of Columbia Circuit.
Argued December 14, 2018. Decided August 13, 2019.
Appeal from the United States District Court for the District of Columbia, (No. 1:17-cv01533).
Benjamin M. Eidelson, Washington, DC, argued the cause for appellants. With him on the briefs were Matthew E. Price, Max J. Minzner, Washington, DC, Yolanda Rondon, Arthur B. Spitzer, and Scott Michelman, Washington, DC.
Scott G. Stewart, Attorney, U.S. Department of Justice, argued the cause for appellees. On the brief were Gisela A. Westwater and Erez Reuveni, Assistant Directors, and Joshua S. Press, Trial Attorney.
Before: Tatel and Griffith, Circuit Judges, and Williams, Senior Circuit Judge.
776*776 Griffith, Circuit Judge:
Plaintiffs were offered the chance to apply for a select number of "diversity visas." The government never granted them visas, and the statutory deadline to do so has now passed. But this case is not moot because whether the district court retains the authority to award plaintiffs relief is a merits question. We reverse the district court's decision to the contrary.
I
A
In general, a citizen of a foreign country who wishes to come to the United States must first obtain a U.S. visa, which is placed in the traveler's passport. A visa does not guarantee entry into the United States; it only confers the right to travel to a port of entry and apply for admission to enter the country. 8 U.S.C. § 1201(h). Failure to satisfy certain requirements in the Immigration and Nationality Act (INA) will render an alien ineligible for a

visa and ineligible for entry. For example, an alien cannot receive a visa if she has "a communicable disease of public health significance," and if she contracts such a disease after receiving her visa, she will be denied entry. 8 U.S.C. § 1182(a)(1)(A). Other parts of the INA apply to only visas or entry. The Secretary of State may, for instance, decline to issue a visa to an alien who abused a position of power to expropriate American property, id. § 1182d, and the Attorney General may decide that certain aliens must pay bonds before entering the country, id. § 1183.
Each fiscal year, the State Department grants approximately 50,000 diversity immigrant visas to individuals from countries underrepresented in the immigration process, which allow recipients who are granted admission to enter the country as lawful permanent residents who may live and work here indefinitely. See 8 U.S.C. §§ 1151(e), 1153(c)(1); Pls.' Br. 4 & n.1.[1] The process by which the State Department awards diversity visas is competitive and complicated. An applicant must first apply for and win the diversity visa "lottery." Pls.' Br. 5; see 8 U.S.C. § 1153(e); 22 C.F.R. § 42.33(b)-(c). A lottery winner or "selectee" must submit an application and various documents to be eligible for a visa number—an administrative device used by 777*777 the State Department to ensure that it does not grant more than 50,000 visas per year. Gov't Br. 9-10; see 8 U.S.C. § 1202(b); 22 C.F.R. §§ 42.33(f)-(g), 42.61-67. A selectee is eligible to receive a visa number only during the fiscal year in which he applied and was selected ("selection FY"). 8 U.S.C. § 1153(e)(2); 22 C.F.R. § 42.33(f). Visa number in hand, the selectee may schedule a consular interview, and if he meets the criteria to obtain one, the State Department "shall" issue him a diversity visa. 8 U.S.C. § 1153(c), (e)(1); 22 C.F.R. §§ 40.6, 42.81(a); see 8 U.S.C. § 1202(h). Consulates return unused visa numbers to the State Department at the end of each month so that they may be reassigned, but the State Department stops granting visa numbers altogether once it projects that it will issue all available visas to existing visa number holders. Gov't Br. 9-10. Because the diversity visa program restarts each fiscal year, consular officers may not issue diversity visas after midnight on September 30 of the selection FY. 8 U.S.C. §§ 1153(c)(1), 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(a)(1), (d); see 31 U.S.C. § 1102.
B
In March 2017, President Trump invoked his authority under 8 U.S.C. § 1182(f) to "suspend the entry of all aliens or any class of aliens as ... he may deem to be appropriate" and issued the second iteration of his "travel ban"—an Executive Order that temporarily prohibited nationals of specific countries from entering the United States, subject to exemptions and waivers. Exec. Order No. 13,780 ("EO-2"), Protecting the Nation From Foreign Terrorist Entry Into the United States §§ 2(c), 3(c), 12(e), 82 Fed. Reg. 13,209, 13,213-15, 13,218 (2017); see Trump v. Hawaii, ___ U.S. ___, 138 S. Ct. 2392, 2437, 201 L.Ed.2d 775 (2018). Several district courts issued preliminary injunctions preventing the government from enforcing EO-2's entry restriction, which were largely affirmed by the courts of appeals. See Hawaii, 138 S. Ct. at 2437. But in June 2017, the Supreme Court held that EO-2's entry restriction could take effect while the Court considered the appeals of the preliminary injunctions, except as to foreign nationals with "a credible claim of a bona

fide relationship with a person or entity in the United States." Trump v. Int'l Refugee Assistance Project (IRAP I), ___ U.S. ___, 137 S. Ct. 2080, 2088, 198 L.Ed.2d 643 (2017) (per curiam).
Two days after the Supreme Court's ruling, the State Department issued a "Guidance Memo" instructing consular officers reviewing diversity visa applications about how EO-2's entry ban affected visa eligibility: A consular officer should first determine whether the selectee "is eligible for the [visa], without regard to [EO-2]." J.A. 17. If so, and if he is from a country subject to EO-2, the officer must evaluate whether the selectee qualifies for an exemption or waiver, or can establish a bona fide relationship with the United States. If he cannot, his visa will be refused.
C
Plaintiffs won the 2017 diversity visa lottery but were denied visas pursuant to the Guidance Memo. Consular officers interviewed plaintiffs and, in accordance with the Memo, determined that they would have been eligible for diversity visas but for the issuance of EO2. However, because plaintiffs were from Iran and Yemen—countries subject to the entry ban—and could not qualify for exemptions or waivers or satisfy IRAP I's bona fide relationship requirement, the consular officers determined that plaintiffs were "not exempt from [EO-2's] suspension of entry" and denied them visas. See J.A. 17.
778*778 Plaintiffs filed suit in the U.S. District Court for the District of Columbia in August 2017. The amended complaint alleges that the Guidance Memo directed consular officers to make visa determinations on the basis of nationality in violation of 8 U.S.C. § 1152(a)(1)(A). It further alleges that § 1182(f) only authorized the President to restrict entry, so by relying on EO-2 to deny plaintiffs visas, consular officers violated their duty under the INA to issue visas to all statutorily eligible applicants. Among other relief, plaintiffs asked the district court to "enjoin[] the State Department from implementing the policy set forth in [the Guidance Memo]" and order "consular officers to process [p]laintiffs' applications pursuant to the [INA]." P.K. v. Tillerson, 302 F. Supp. 3d 1, 6 (D.D.C. 2017).
The next month, the State Department informed the district court that it was on track to issue all 50,000 visas allocated for FY 2017 prior to October 1 and would no longer process additional requests for visa numbers made during FY 2017. The government argued that this development "counsel[ed] against" an order that it give plaintiffs visa numbers or process their applications. J.A. 33-34. Plaintiffs presented the district court with several options. From past practice, it appeared that the State Department would not reallocate visa numbers returned in September. Instead of "wast[ing]" those numbers, plaintiffs suggested that the court could order the government to reassign them to plaintiffs. J.A. 46. Recognizing that the district court might have reservations about issuing such a ruling while the Supreme Court was reviewing the orders enjoining EO-2's entry restriction as unlawful, plaintiffs explained that the district court could instead "maintain the status quo" by ordering the State Department to "reserve any unused visa numbers until" IRAP I was "resolved." Id.

On September 24, 2017, EO-2 expired and was replaced by the third iteration of President Trump's travel ban, the "Proclamation." Proclamation No. 9,645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, 82 Fed. Reg. 45,161 (2017); see P.K., 302 F. Supp. 3d at 3-4. Although the Proclamation modified the scope and duration of EO-2's entry restrictions, the restrictions on Iranians and Yemenis remained largely the same.
Five days later, on September 29—one day before the end of FY 2017—the district court issued its first ruling. Plaintiffs had argued that the litigation over EO-2's entry restrictions was "irrelevant" to their case about visas, J.A. 46, but the district court concluded otherwise. Relying on language equating visas and entry in the courts of appeals decisions affirming the injunctions of EO-2 and the nature of the relief sought in those cases, the district court determined that the Supreme Court's order staying challenges to EO-2's entry ban also necessarily stayed challenges to EO-2's effect on visas. P.K., 302 F. Supp. 3d at 7-8 & n.7. But in the midst of the uncertainty about the strength and status of the legal challenges before the Supreme Court, and with only one day before the end of plaintiffs' selection FY, the district court sought to preserve the status quo and thus keep alive the possibility that plaintiffs could yet receive their visas. The court therefore ordered the State Department to report the number of unused visa numbers for FY 2017 and "hold those visa numbers to process [p]laintiffs' visa applications in the event the Supreme Court finds [EO-2] to be unlawful." J.A. 112 ("September 29 Order"). The government has since advised that 27,241 diversity visa numbers were returned unused and that it issued 49,976 779*779 diversity visas in FY 2017-24 shy of the statutory target. This appeal primarily concerns whether the district court may order the government to keep those unused visas available in the event these plaintiffs eventually prevail on their claims.
In October 2017, the Supreme Court explained that challenges to the expired entry restrictions of EO-2 were moot. Trump v. Hawaii, ___ U.S. ___, 138 S. Ct. 377, 377, 199 L.Ed.2d 275 (2017); Trump v. IRAP, ___ U.S. ___, 138 S. Ct. 353, 353, 199 L.Ed.2d 203 (2017). That same month, the government filed a motion to dismiss this case as moot, arguing that once FY 2017 ended, the court lacked the power to order the government to issue plaintiffs FY 2017 diversity visas. The district court rejected that theory, but agreed that the case was moot because the Guidance Memo was issued to implement the nowexpired EO-2 and the September 29 Order had "expressly predicated" any future order requiring the government to process plaintiffs' applications upon "the Supreme Court find[ing] [EO-2] to be unlawful," which it had not done. Almaqrami v. Tillerson, 304 F. Supp. 3d 1, 7-8 (D.D.C. 2018) (first alteration in original) (internal quotation marks omitted). Plaintiffs appeal.
While this litigation was ongoing, other plaintiffs challenged the Proclamation's entry ban on grounds similar to those argued to enjoin EO-2. Once again, district courts enjoined that ban, and the courts of appeals affirmed. In June 2018, the Supreme Court held that those plaintiffs were not likely to show that the Proclamation was unlawful. Hawaii, 138 S. Ct. 2392.

II
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is de novo, though we accept as true the facts plaintiffs have alleged. Schnitzer v. Harvey, 389 F.3d 200, 202 (D.C. Cir. 2004).
A federal court's jurisdiction is limited to "Cases or Controversies." U.S. Const. art. III, § 2, cl. 1. A lawsuit becomes moot—and is therefore no longer a "Case" or "Controversy"— "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Chafin v. Chafin, 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013)). But a case becomes moot only if, assuming the plaintiff prevails, "it is impossible for a court to grant [her] any effectual relief whatever." Id. (quoting Knox v. Serv. Emps. Int'l Union, 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012)). We must assume that the plaintiff will "prevail" unless her argument that the relief sought is legally available and that she is entitled to it is "so implausible that it is insufficient to preserve jurisdiction." Id. at 174, 133 S.Ct. 1017. And if there is "any chance" that relief will be effective in securing what she seeks, she has an interest in obtaining it. Mission Prod. Holdings, Inc. v. Tempnology, LLC, ___ U.S. ___, 139 S. Ct. 1652, 1660, 203 L.Ed.2d 876 (2019); see Chafin, 568 U.S. at 175-76, 133 S.Ct. 1017 ("[T]he fact that a defendant is insolvent does not moot a claim for damages.").
Under this "demanding standard," plaintiffs' claims are not moot. See Tempnology, 139 S. Ct. at 1660. They seek a court order instructing the government to stop implementing the Guidance Memo, process their visa applications, and issue them diversity visas. Neither their claim that such relief is legally available nor their claim that they are entitled to that relief is so implausible as to deprive the district court of jurisdiction. And there is some chance that 780*780 this relief will be effective at securing their immigration to the United States.
A
The parties dispute whether the district court may lawfully take steps to grant plaintiffs relief, notwithstanding the fact that FY 2017 is over. This question goes to the merits, and because plaintiffs' argument that the district court may do so is not "so implausible that it is insufficient to preserve jurisdiction," the case is not moot. Chafin, 568 U.S. at 174, 133 S.Ct. 1017 (explaining that an argument about "the legal availability of a certain kind of relief" is a merits question).
Courts are often asked to intervene in disputes over diversity visas, and the end of the selection FY does often render those cases moot. In a straightforward case, a plaintiff who believed the government had erroneously denied her visa or was not processing her application quickly enough would file suit well in advance of the end of the selection FY. If the court agreed, it would order the government to correct the error, the government would timely comply, and the plaintiff would receive her visa before the selection FY ended. More

often, the plaintiff files suit after the selection FY has ended. Because diversity visas expire when the selection FY ends, 8 U.S.C. §§ 1153(c)(1), 1154(a)(1)(I)(ii)(II), that plaintiff does not have a statutory right to the requested visa and the government does not have a duty to issue her one. Courts faced with this situation have dismissed these lawsuits as moot. Zixiang Li v. Kerry, 710 F.3d 995 (9th Cir. 2013); Mohamed v. Gonzales, 436 F.3d 79 (2d Cir. 2006) (per curiam); Nyaga v. Ashcroft, 323 F.3d 906 (11th Cir. 2003) (per curiam). But see Coraggioso v. Ashcroft, 355 F.3d 730 (3d Cir. 2004) (dismissing suit on the merits); Iddir v. INS, 301 F.3d 492 (7th Cir. 2002) (same).
Sometimes a plaintiff files suit before the selection FY ends but the court fails to act on that request until after September 30, at which point the State Department lacks authority to issue a diversity visa sought in the prior fiscal year. Courts have likewise dismissed these cases as moot. See Mwasaru v. Napolitano, 619 F.3d 545 (6th Cir. 2010); Zapata v. INS, 93 F. Supp. 2d 355 (S.D.N.Y. 2000).
Other cases involve a different twist. The plaintiff files suit and the court grants some relief—but not the visa—before October 1. In such a case, after the selection FY has ended, the court might lawfully take steps to compel the government to process the plaintiff's application and issue her a diversity visa anyway.
That is what happened here. On September 29, the district court ordered the government to reserve unused FY 2017 visa numbers so that, if it turned out that plaintiffs had erroneously been denied their diversity visas, the court could order the government "to process visas [for plaintiffs] past the statutory deadline." P.K., 302 F. Supp. 3d at 10-11. The district court cited two cases in which courts had done something similar: Przhebelskaya v. USCIS, 338 F. Supp. 2d 399 (E.D.N.Y. 2004) and Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. Ill. 1999). In both, before the selection FY ended, the district court ordered the government to timely process plaintiffs' diversity visa applications. Had the government complied, plaintiffs would have received visas. But the government did not, so the court invoked its equitable power to enforce prior orders and instructed the government to issue the plaintiffs visas even though the selection FY had ended. See also Marcetic v. INS, No. 97 C 7018, 1998 WL 173129, at *2 (N.D. Ill. Apr. 6, 1998) (ordering government to comply 781*781 with prior order entered by an immigration judge requiring it to do what was necessary to issue plaintiff's green card).
The question is whether, now that the selection FY has ended, the district court can order the State Department to do anything with the unused visa numbers held in reserve pursuant to the September 29 Order. Following Chafin, we hold that this is a merits question in the context of this case. There, a father sought a court order directing the mother of his daughter to return the child to the United States after taking her to live overseas. Chafin, 568 U.S. at 173, 133 S.Ct. 1017. The mother argued that the father did not have a legally cognizable interest in obtaining that order because the court "lack[ed] the authority to issue" it "pursuant to its inherent equitable powers." Id. at 174, 133 S.Ct. 1017. But that argument—"which goes to the ... legal availability of a certain kind of relief— confuse[d] mootness with the merits." Id. Because the husband's claim that the district court possessed the equitable power to issue such an order was not "so implausible that it is

insufficient to preserve jurisdiction," the court had to assume that claim would prevail, meaning the case was not moot. Id.
It is likewise not "implausible" that the district court here could rely on equity to take steps to compel the issuance of diversity visas, notwithstanding the end of FY 2017. Indeed, the government acknowledges that courts have that power, but in its view, that power is limited to cases like Przhebelskaya and Paunescu in which the court orders the government to process a visa application. By contrast, the district court here ordered the government to hold available visa numbers to potentially process plaintiffs' applications. Because there is no "prior court order that was not complied with," Gov't Br. 37, the court cannot even "arguabl[y]" invoke equity to provide plaintiffs relief, id. at 31, or so the argument goes, see id. at 28-37.
This argument assigns more determinacy to the meaning of the September 29 Order than it can bear, in our view, for purposes of our mootness analysis. That Order instructed the government to "hold [unused] visa numbers to process [p]laintiffs' visa applications in the event the Supreme Court finds [EO-2] to be unlawful." J.A. 112. We hold that the September 29 Order need not be read to limit the authority of the district court to grant additional relief to a scenario in which the Supreme Court finds EO-2 unlawful.[2] Rather, it is at least possible to read that Order as doing one or both of two other things.
First, the Order might simply have preserved the "status quo ... while the legality of [EO-2]" was pending before the Supreme Court, meaning it preserved the district court's ability, as of September 29, to rectify the erroneous denial of plaintiffs' visas based on a legally questionable Guidance Memo or erroneous interpretation of the INA. See P.K., 302 F. Supp. 3d at 7. Second, it may have told the government that if one specific eventuality arose—the Supreme Court found EO-2 unlawful—the State Department must process plaintiffs' visa applications. These readings may be combined. That is, the Order could be read as (1) instructing the State Department to "hold" these unused visa numbers for the 782*782 purpose of enabling a later judicial judgment, which might require the government "to process" plaintiffs' applications after any salient obstacles were removed, and (2) identifying the specific judgment that would issue if the Supreme Court took a certain action. Cf. Crystal Clear Commc'ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171, 117778 (10th Cir. 2005) (concluding from context that an order stating plaintiffs must submit "claims" to the FCC only intended to refer some claims, but not others, to the FCC); Gjertsen v. Bd. of Election Comm'rs of City of Chi., 751 F.2d 199 (7th Cir. 1984) (Posner, J.) (context and district court's intent demonstrated that an order styled as a "final judgment" was actually an order granting a preliminary injunction).
On that reading, the September 29 Order left open whether a later judgment would issue and, if so, what it would look like in the event the Supreme Court took any of myriad other tacks—for example, holding that the President could rely on § 1182(f) to restrict entry but not visas, that the IRAP I plaintiffs lacked standing, that their claims were nonjusticiable, or that the case must be dismissed as moot, which the district court knew was a possibility on September 29. See P.K., 302 F. Supp. 3d at 4 n.4 (explaining that the Court had vacated oral argument in IRAP I and ordered the parties to brief whether the Proclamation and

expiration of EO-2 mooted that case). We need not decide the merit of these various readings; we merely note that they are possible constructions of the September 29 Order.
That means plaintiffs' claim that further relief is legally available is not "so implausible" as to be "insufficient to preserve jurisdiction." Chafin, 568 U.S. at 174, 133 S.Ct. 1017. For example, if we were to read the Order as leaving open the possibility that a later judgment would issue, now that IRAP I—the primary obstacle the district court identified to granting plaintiffs additional relief—has been dismissed as moot, it is not "implausible" that the district court could grant plaintiffs additional relief. As the district court explained, if it "were to now order the State Department to use the unused visa numbers to process [p]laintiffs' visa applications, it would [arguably] be requiring the State Department to fulfill its obligations under" the September 29 Order, which instructed the State Department to "reserve the unused visa numbers ... for a specific purpose: the future processing of [p]laintiffs' visa applications." Almaqrami, 304 F. Supp. 3d at 6. Like in Paunescu and Przhebelskaya, such an order would give effect to the district court's prior directive, entered before the end of the selection FY, to preserve an essential (and otherwise expiring) ingredient of relief. To be sure, those cases required the government to comply with a prior order to process applications, see Gov't Br. 37, but they offer useful examples, not binding models, and neither of those courts limited their holdings to the precise scenario they confronted, see Almaqrami, 304 F. Supp. 3d at 7. And this case is more similar to Paunescu and Przhebelskaya than the cases dismissed as moot because the plaintiff filed too late or the court did not act in time. All told, this is enough to suggest that plaintiffs' argument that the district court could grant them additional relief, despite the end of the selection FY, is not so "completely devoid of merit as not to involve a federal controversy." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974)).
B
Three other issues warrant brief discussion. First, the district court concluded 783*783 that because the expiration of EO-2 rendered challenges to that order moot, the same was true for plaintiffs' challenges to the Guidance Memo that implemented EO-2, and therefore "this case" was moot. Almaqrami, 304 F. Supp. 3d at 8. But plaintiffs asked the district court to declare the policy in the Guidance Memo unlawful and enjoin the State Department from implementing it and to order consular officers to process their visa applications in accordance with the INA. See P.K., 302 F. Supp. 3d at 7. If the Guidance Memo is no longer in force, that arguably removes an obstacle to the plaintiffs' ability to obtain an order instructing the government to process their applications and issue them visas pursuant to the INA separate and apart from anything provided in the Memo. As for their challenges to the Memo itself, although courts generally cannot declare unlawful or enjoin policies that are no longer in force, the district court never actually found that the Guidance Memo "expired by its own terms" along with EO-2. See Almaqrami, 304 F. Supp. 3d at 7 (quoting IRAP, 138 S. Ct. at 353; and citing Hawaii, 138 S. Ct. at 377). Indeed, the present record suggests that the Memo did not. See Tr. of Oral Arg. at 5:10-12 (plaintiffs'

counsel explaining without contradiction that "there is nothing in the record suggesting that" the Guidance Memo or the policy it announced "was ever rescinded or modified"). Without making such a finding, the district court was too quick to conclude that plaintiffs' challenges to the Memo were moot. Compare Nat'l Ass'n of Mfrs. v. Dep't of Def., ___ U.S. ___, 138 S. Ct. 617, 627 n.5, 199 L.Ed.2d 501 (2018) ("Because the [challenged rule] remains on the books for now, the parties retain `a concrete interest' in the outcome of this litigation, and it is not `impossible for a court to grant any effectual relief ... to the prevailing party.'" (quoting Chafin, 568 U.S. at 172, 133 S.Ct. 1017)), with Safari Club Int'l v. Jewell, 842 F.3d 1280, 1288 (D.C. Cir. 2016) ("expiration of a government policy ordinarily moots a challenge to it"). See also Rembert v. Sheahan, 62 F.3d 937, 938 (7th Cir. 1995) (declining to address mootness in the face of an insufficient record).
Furthermore, whether the Memo has expired has no effect on the potential viability of plaintiffs' theories of relief, which we must assume are valid unless they are "wholly insubstantial and frivolous." Steel Co., 523 U.S. at 89, 118 S.Ct. 1003 (quoting Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). EO-2 prevented nationals of specific countries from entering the United States; it said nothing about diversity visas. Although "aliens who are inadmissible" to the United States for reasons described in certain provisions of the INA "are ineligible to receive visas," 8 U.S.C. § 1182(a), plaintiffs argue that § 1182(f), which the President relied on to issue EO-2 and the Proclamation, is not one of those designated provisions. Plaintiffs also argue that by denying them visas on the basis of nationality, the State Department and its consular officers violated 8 U.S.C. § 1152(a)(1)(A). They admit that some language in the Supreme Court's Hawaii opinion "is in tension with [their] claim[s]," but they contend that language is neither binding nor persuasive, and that other language in Hawaii is "profoundly helpful." Tr. of Oral Arg. at 6:14-17; see id. at 7:10-9:2, 23:17-25:20. We take no position on the merits of these arguments, or whether plaintiffs have "state[d] a claim to relief that is plausible on its face," as required by Federal Rule of Civil Procedure 12(b)(6). Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). We merely note that they are sufficient to preserve the district court's subject matter jurisdiction. See Chafin, 784*784 568 U.S. at 174, 133 S.Ct. 1017; Steel Co., 523 U.S. at 89, 118 S.Ct. 1003.
Finally, because there is some chance that this relief would be effective at securing plaintiffs' immigration to the United States, their "suit remains live." Tempnology, 139 S. Ct. at 1660; see Chafin, 568 U.S. at 172, 174-75, 133 S.Ct. 1017 (explaining that, unless it is impossible to grant relief that would be effective in securing the plaintiff's goal, the case is not moot). Although the Proclamation currently prevents nationals of Iran and Yemen from entering the country, plaintiffs could qualify for an exemption or waiver. Or the President might lift these particular entry restrictions, as he has done for nationals of Chad. Proclamation No. 9,723, Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, 83 Fed. Reg. 15,937, 15,938-39 (2018); see also Hawaii, 138 S. Ct. at 2422 (explaining other changes made since the initial entry restrictions took effect). These possibilities "may be uncertain or even unlikely," Tempnology, 139 S. Ct. at 1660, but that "does not typically render cases moot," Chafin, 568 at 175, 133 S.Ct. 1017; see Del. Riverkeeper Network v. FERC, 857 F.3d 388, 397 (D.C. Cir. 2017) (case was not moot

even though the court's order "would almost certainly have no real world consequences"). This case is no different.
III
On the present record, this case is not moot. We reverse the order dismissing this case for lack of subject matter jurisdiction and remand it to the district court for further proceedings.[3]
So ordered.
[1] A diversity visa applicant who is already living in the United States in another legal status would instead apply to U.S. Citizenship and Immigration Services (USCIS) for adjustment of status. If successful, he receives a lawful permanent resident identification card. There is no need to satisfy the entry requirements. We use the term "diversity visas" to describe both processes.
[2] In the district court's view, that is all it did, and because the Supreme Court never found EO-2 unlawful, the district court concluded that it could not grant plaintiffs further relief. Almaqrami, 304 F. Supp. 3d at 8. Although the government does not defend this reasoning on appeal, and plaintiffs argue this was not "an independent alternative holding," Pls.' Br. 24, we are obligated to address potential jurisdictional defects, Floyd v. District of Columbia, 129 F.3d 152, 155 (D.C. Cir. 1997).
[3] The government also moved to dismiss plaintiffs' amended complaint as nonjusticiable based on the doctrine of consular nonreviewability and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Mem. of Supporting Points and Authorities at 26-31, 34-39, No. 17-cv-01533 (D.D.C. Oct. 20, 2017), Dkt. No. 53-1. The district court had already rejected the government's consular nonreviewability argument. P.K., 302 F. Supp. 3d at 11-12. Because the court dismissed the case as moot, it did not reconsider that consular nonreviewability determination or reach the government's 12(b)(6) argument. Almaqrami, 304 F. Supp. 3d at 9 & n.3.
When we reverse the dismissal of a case as moot, our usual practice is to remand for the district court to consider arguments about the merits in the first instance, assuming no other threshold issues exist. E.g., Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 956 (D.C. Cir. 2016). Because courts "may assume without deciding that plaintiffs' statutory claims are reviewable" and proceed to the merits "notwithstanding consular nonreviewability," we see no need to address consular nonreviewability here. Hawaii, 138 S. Ct. at 2407; see Gov't Br. 38-43 (not arguing this doctrine is jurisdictional).

 
 Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.K., et al., Plaintiffs,
v.
REX W. TILLERSON, et al., Defendants.

)

)

)

)

)

)

Civil Action No. 17-cv-1533 (TSC)

)

)

)

)

)

)

MEMORANDUM OPINION

This case involves the State Department’s application of President Trump’s Executive

Order No. 13,780 (“Executive Order”) to individuals who have applied for diversity immigrant

visas in the fiscal year 2017 (“FY 2017”). Plaintiffs—citizens of Yemen and Iran—allege that

Rex W. Tillerson, in his official capacity as Secretary of State, and fifty State Department

consular officials (collectively, “Defendants”), have unlawfully refused or failed to process

Plaintiffs’ diversity immigrant visa applications based on their citizenship in one of the countries

subject to the Executive Order’s entry ban. (See ECF No. 46 (“Am. Compl.”)).1 Before this

court is Plaintiffs’ Motion for Preliminary Injunction and Emergency Motion for Mandamus

Relief. (ECF Nos. 2, 2-1 (“Mot.”)). The court heard oral argument on August 21, 2017, and at

Plaintiffs’ request, held an emergency status conference on September 19, 2017. Upon

1 Plaintiffs’ original complaint was filed on August 3, 2017. (See ECF No. 1). On September 21, 2017, Plaintiffs requested leave to file their First Amended Petition for Mandamus and First Amended Complaint for Injunctive and Declaratory Relief. (See ECF No. 44). The court granted Plaintiffs’ motion on September 22, 2017. (See Minute Order (9/22/2017)). The Amended Complaint includes additional plaintiffs and revised class allegations, but does not alter the nature of Plaintiffs’ claims.
1

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 2 of 17
consideration of the parties’ filings, the oral arguments of counsel, and for the reasons stated herein, Plaintiffs’ motion for a preliminary injunction and emergency mandamus relief is GRANTED in part and DENIED in part. I. BACKGROUND
A. The Diversity Visa Program Congress created the diversity visa program under the Immigration and Nationality Act
(“INA”) to allow for more immigration to the United States from countries with traditionally low rates of immigration. See 8 U.S.C. §§ 1153(c)(1)(B)(ii), 1153(c)(1)(E)(ii). The program permits the State Department to issue up to 50,000 visas to individuals from specified countries.2 8 U.S.C. § 1151(e). Millions of people enter the lottery every year. Those selected for the program are not guaranteed to receive a visa—only the opportunity to apply for one.
Those wishing to obtain a visa through the diversity visa program must enter the visa lottery by filing a petition. See 22 C.F.R. § 42.33(b)(3). The State Department randomly selects lottery applicants to become “selectees” of the program. Id. § 42.33(c). Selectees may then submit an application and complete an interview with State Department consular officers. Provided that an applicant is statutorily eligible, that there is a visa number available for the applicant, and that processing is complete by the end of the fiscal year, the statute directs the State Department to issue immigrant visas, allowing the applicant and their immediate family to live and work in the United States and become lawful permanent residents. See 8 U.S.C. § 1201(g); 22 C.F.R. §§ 40.6, 42.33(f). If an applicant is issued a visa by September 30, 2017 (the
2 The statute makes available up to 55,000 diversity visas annually, but 5,000 of those are reserved for aliens covered by the Nicaraguan Adjustment and Central American Relief Act of 1997. See Pub. L. No. 105–100, 111 Stat. 2193 (1997).
2

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 3 of 17
end of the fiscal year), he or she has six months within which to enter the United States. See 8
U.S.C. § 1201(c)(1).
B. The Executive Order and the Supreme Court Decision
President Trump issued the Executive Order on March 6, 2017. The Executive Order
expired on September 24, 2017.3 The Executive Order imposed a 90-day suspension on entry
into the United States for nationals of six countries—Iran, Libya, Somalia, Sudan, Syria, and
Yemen. Section 2(c) of the Executive Order provides:
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.
Protecting the Nation from Foreign Terrorist Entry into the United States, Exec. Order No.
13780, 82 Fed. Reg. 13209, 13213 (2017). The Executive Order was challenged on
constitutional and statutory grounds in several different courts, and by the end of March, two
injunctions prohibited the enforcement of Section 2(c). Two U.S. Courts of Appeals—the Fourth
Circuit and the Ninth Circuit—largely upheld both injunctions. See Int’l Refugee Assistance
Project v. Trump, 857 F.3d 554 (4th Cir. 2017), cert. granted, 137 S. Ct. 2080 (2017); Hawaii v.
Trump, 859 F.3d 741 (9th Cir. 2017), cert. granted sub nom. Trump v. Int'l Refugee Assistance
Project, 137 S. Ct. 2080 (2017). The government filed a petition for certiorari in International
3 On September 25, 2017, President Trump signed a revised version of the Executive Order. The court agrees with Plaintiffs that the revised version does not impact this litigation.
3

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 4 of 17
Refugee Assistance Project (IRAP), as well as applications to stay the preliminary injunctions entered by the lower courts.
On June 26, 2017, the U.S. Supreme Court granted the government’s petition for certiorari, and granted, in part, the government’s motions to stay the preliminary injunctions pending resolution of the merits.4 Trump, 137 S. Ct. at 2087. The Court granted a stay of the injunctions as applied to section 2(c) of the Executive Order “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Id. The Court left the injunctions in place “with respect to respondents and those similarly situated”—that is, those who had relationships with people or entities in the United States “whose rights might be affected if those foreign nationals were excluded.” Id. The Court reasoned that “[d]enying entry to [a foreign national with no connection to the United States at all] does not burden any American party by reason of that party’s relationship with the foreign national.” Id. at 2088. In addition, the court noted that “the Government’s interest in enforcing § 2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.” Id.
C. The State Department’s Implementation of the Executive Order Two days after the Supreme Court’s decision, the State Department issued guidance to its
consular officers regarding the Executive Order’s impact on visa issuance. With respect to diversity visas, the State Department advised consular officers to “first determine whether the
4 The Court originally scheduled oral argument for the first session of October Term 2017. See Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2086 (2017). However, after the President signed the revised Order on September 25, the Supreme Court vacated the scheduled oral argument and ordered the parties to address whether the revised Order and the expiration of the most recent Executive Order rendered the cases moot. Trump v. Int’l Refugee Assistance Project, 2017 WL 2405595, at *1 (U.S. Sept. 25, 2017).
4

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 5 of 17
applicant is eligible for the DV [(diversity visa)], without regard to the [Executive Order].” (ECF No. 2-2 (“State Department Cable”) at 3). Next, if an applicant is “found otherwise eligible,” the consular officer was instructed to determine “whether the applicant is exempt from the [Executive Order]’s suspension of entry provision” or “qualifies for a waiver.” (Id.). Lastly, consular officers were advised that applicants who were not exempt from the Executive Order’s suspension of entry provision and who did not qualify for a waiver should be refused a visa:
c.) DV applicants who are not exempt from the [Executive Order]’s suspension of entry provision and who do not qualify for a waiver should be refused [pursuant to] 221(g) [of the INA] and the consular officer should request an advisory opinion from VO/L/A following current guidance in 9 FAM 304.3-1. (Id.). D. Plaintiffs5 Plaintiffs are four individuals—Hamed Sufyan Othman Almaqrami, Aliakbar Nowzari Golsefid, Farzad Abdollahi Zadeh, and Aiman Alsakkaf—and their immediate family members, who are from countries affected by section 2(c) of the Executive Order. (See Am. Compl. ¶¶ 12– 19). Almaqrami and Alsakkaf are from Yemen, and Golsefid and Zadeh are from Iran. (Id. ¶¶ 12–13, 16, 19). Almaqrami, Golsefid, and Zadeh were selected as diversity lottery winners in May 2016. (Id. ¶¶12–13, 16, 36). Alsakkaf was selected as a diversity lottery winner in July 2016. (Id. ¶¶ 19, 36). Plaintiffs have submitted their visa applications and have completed their consular interviews. (See id. ¶¶ 37, 38, 40, 41). However, on various dates since the Supreme Court’s June 26, 2017 decision and the State Department’s June 28, 2017 cable, Plaintiffs have
5 Plaintiffs’ original Complaint named four individual plaintiffs. (See ECF No. 1 ¶¶ 11–18, 34– 40). In the month and a half since this litigation began, three of those original plaintiffs and their families have been issued diversity immigrant visas. Accordingly, those plaintiffs, Radad Fauiz Furooz, (see ECF No. 32); P.K., N.H., M.K.1 and M.K.2, (see ECF No. 39); and Afshin Asadi Sorkhab, Neda Heidari Dehkordi, Y.S.1, Y.S.2, and Y.S.3, (see ECF No. 42) voluntarily dismissed their claims without prejudice.
5

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 6 of 17
been notified by the State Department that they were ineligible for diversity visas unless they could demonstrate a bona fide relationship with the United States. (Id. ¶¶ 37, 39, 40, 41). Plaintiffs were unable to do so and therefore remained ineligible for a visa during the State Department’s implementation of the Executive Order. (Id.).
E. Plaintiffs’ Requested Relief Plaintiffs claim that (1) the State Department’s policy of applying the Executive Order’s
ban to visa issuance is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and (2) in applying the policy, consular officers violated their clear, nondiscretionary duty to issue diversity visas to applicants who are statutorily eligible. (Am. Compl. at 15–17). Accordingly, Plaintiffs ask this court to issue an order: (1) enjoining the State Department from implementing the policy set forth in its cable; and (2) requiring consular officers to process Plaintiffs’ applications pursuant to the statute. (Mot. at 10).
On September 11, 2017, Defendants filed a status report indicating that the State Department is likely to reach the statutory cap of 50,000 visas before September 30, 2017 (ECF No. 40 (“Defs. Status Report”) at 1). Plaintiffs subsequently sought additional relief, requesting that this court, in light of the State Department’s allegedly illegal interpretation of the Executive Order, order the State Department to: (1) process the diversity visas of and/or issue diversity visas to eligible applicants who had previously been refused under the Executive Order under the program for FY 2017, even in excess of the statutory cap and/or past the statutory deadline; or (2) issue diversity visas to eligible 2017 applicants who had been refused under the Executive Order under the program for fiscal year 2018 (“FY 2018”). (ECF No. 43 (“Pls. Mot. Em. Conf.”) at 3–4). In a Status Update filed on September 21, Plaintiffs requested that, in the
6

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 7 of 17
alternative, the court order the State Department to “reserve any unused visa numbers until after the [Supreme Court’s decision].” (ECF No. 45 at 5). II. LEGAL STANDARD
A. Preliminary Injunction Standard In order to prevail on a motion for a preliminary injunction, the movant must show that: “[1] he is likely to succeed on the merits, [2] . . . he is likely to suffer irreparable harm in the absence of preliminary relief, [3] . . . the balance of equities tips in his favor, and [4] . . . an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is an “extraordinary and drastic remedy” that is “never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689–90 (2008) (citations omitted). “[T]he standard for obtaining an injunction is significantly heightened when a plaintiff requests affirmative injunctive relief.” Tex. Children’s Hosp. v. Burwell, 76 F. Supp. 3d 224, 247 (D.D.C. 2014) (citing Bradshaw v. Veneman, 338 F. Supp. 2d 139, 144 (D.D.C. 2004)). B. Mandamus Standard The mandamus statute grants district courts “jurisdiction of any action in the nature of mandamus 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. Mandamus relief is proper only 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 plaintiff.” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005) (quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)). The remedy of mandamus is “‘a drastic one, to be invoked only in extraordinary circumstances.’” Power, 292 F.3d at 784 (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)).
7

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 8 of 17
III. ANALYSIS The court finds that, for the reasons detailed below, the Supreme Court’s June 26, 2017
Order precludes the court from granting most of the injunctive and mandamus relief Plaintiffs request. The court will, however, grant the alternative relief Plaintiffs request and order the State Department to reserve any unused visa numbers until after the Supreme Court’s ultimate decision in Trump.
A. The Supreme Court’s Order Precludes Granting the Majority of Plaintiffs’ Requested Relief
A preliminary injunction is designed “to preserve the relative positions of the parties until a trial on the merits can be held.” Tex. Children’s Hosp., 76 F. Supp. 3d at 235 (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). Here, Plaintiffs request that the court alter the status quo by: (1) finding that the State Department’s policy set forth in its cable is illegal; (2) enjoining the State Department from implementing the policy; and (3) ordering the State Department to process and issue visas despite the Executive Order and the Supreme Court’s order. (Mot. at 10; Pls. Mot. Em. Conf. at 3–4). The court declines to alter the status quo and grant these specific requests for injunctive and mandamus relief while the legality of the Executive Order is currently before the Supreme Court. See, e.g., Aamer v. Obama, 742 F.3d 1023, 1044 (D.C. Cir. 2014) (affirming the denial of a preliminary injunction enjoining the government’s force-feeding protocol where “the Supreme Court [could] later determine[ ] that the petitioners’ claims lacked merit.”).
Plaintiffs argue that the Supreme Court’s stay of the injunctions in Trump does not preclude the court from granting the relief they request, since the issue before the Supreme Court is “entirely about the ability to enter the country” and “the claims before the Supreme Court are distinct from the issues here.” (ECF No. 26 (“Pls. Rep.”) at 7, 8). In support of these arguments,
8

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 9 of 17
Plaintiffs cite to sentences throughout the Court’s Order in Trump that discuss entry into the United States, rather than the issuance of visas. (Id. at 7). Plaintiffs also argue that the cases before the Supreme Court only “consider whether the Executive Order violates the Establishment Clause, the Immigration and Nationality Act, whether the scope of injunctive relief ordered by the lower court was appropriate, and whether the cases are now moot.” (Id. at 8).
However, the court agrees with Defendants that “the Supreme Court is currently considering the validity of the Executive Order, and . . . has already balanced the equities in determining how that Order may be implemented pending its consideration.” (ECF No. 24 (“Defs. Opp.”) at 15). Although it did not explicitly address this issue, the Supreme Court appears to have considered the Executive Order’s implementation with respect to both entry and visa issuance.
In the two cases before the Supreme Court, appellate courts upheld the lower courts’ injunctions as to section 2(c) of the Executive Order. In IRAP, the Fourth Circuit held that section 2(c) “likely violates the Establishment Clause.” IRAP, 857 F.3d at 605. In Hawaii, the Ninth Circuit held that portions of the Executive Order, including section 2(c), likely exceeded the President’s authority under the INA. Hawaii, 859 F.3d at 779. The Supreme Court ordered the injunctions in IRAP and Hawaii to remain in place for parties “similarly situated to Doe, Dr. Elshikh, and Hawaii.” Trump, 137 S. Ct. at 2088. The two individual plaintiffs found to be entitled to injunctive relief—Doe #1 and Dr. Elshikh—are individuals whose injuries and standing arose solely from the Executive Order’s likely effect on their family members’ abilities to obtain visas. John Doe #1, one of the plaintiffs in IRAP, is “a lawful permanent resident of the United States” whose wife, at the time Doe #1 sought an injunction, was “currently awaiting her
9

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 10 of 17
consular interview” in order to obtain a visa.6 IRAP, 857 F.3d at 582. Similarly, Dr. Elshikh, one of the plaintiffs in Hawaii, is an American citizen who alleged that “[the Executive Order] will prevent his mother-in-law from obtaining a visa to reunite with her family” in the United States. Hawaii, 859 F.3d at 762 (emphasis added). In light of the fact that the Supreme Court ordered that individuals “similarly situated” to Doe #1 and Dr. Elshikh, with a bona fide relationship to the United States, were exempt from the Executive Order, it necessarily follows that an individual without a bona fide relationship is not exempt from the Executive Order, even with respect to visa issuance.7
Moreover, the Ninth and Fourth Circuits, in upholding the lower courts’ injunctions, specifically mentioned the issuance of visas. In Hawaii, the Ninth Circuit found that “Plaintiffs have shown a likelihood of success on the merits of their claim that Section 2(c) of the Order, in suspending the issuance of immigrant visas and denying entry based on nationality, exceeds the restriction of § 1152(a)(1)(A) [of the INA].” Hawaii, 859 F.3d at 779 (emphasis added). The Fourth Circuit, although ultimately declining to decide whether the Executive Order violates the INA, noted that “[s]ection 2(c)’s ‘short pause’ on entry effectively halts the issuance of visas for ninety days.” IRAP, 857 F.3d at 583 (emphasis added). Similarly, the lower courts drew no distinction between entry and visa issuance when they enjoined enforcement of the Executive
6 On June 24, 2017, the Supreme Court received a letter from counsel for Doe #1 indicating that his wife received an immigrant visa on or about June 22, 2017. See Trump, 137 S. Ct. at 2086 n.1. The Court found that this development “[did] not affect [its] analysis of the stay issues in [the cases before it].” Id. 7 Plaintiffs argue that the Supreme Court’s decision does not impact this case, as the decision has no preclusive effect because Plaintiffs were not parties in the cases before the Court. (Pls. Rep. at 7). This argument is inapposite. Two of the plaintiffs before the Supreme Court are individuals whose injuries, similar to the Plaintiffs in this case, arose from the Executive Order’s effect on visa issuance. Thus, it appears that the Supreme Court’s decision also applies to the Plaintiffs in this case.
10

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 11 of 17
Order, finding that the Executive Order impermissibly delayed both issuance of visas and entry into the United States for individuals from the affected countries. The Supreme Court thus considered these findings when it granted the government’s applications for stays of the injunctions, and the Court’s order precludes this court from determining the legality of the State Department’s implementation of the Executive Order.
The court is unconvinced by Plaintiffs’ argument that “no future development in the Supreme Court litigation will have an impact on this case.” (Pls. Rep. at 8). As explained above, the Supreme Court’s decision to stay the injunctions appeared to consider the Executive Order’s applicability to visa issuance. Until the Supreme Court rules on the legality of the Executive Order, this court must abide by the Supreme Court’s order, and therefore Plaintiffs’ request for relief is denied.
B. The Court is Not Precluded from Granting Plaintiffs’ Alternative Relief If the Supreme Court strikes down the Executive Order, Plaintiffs will be without a remedy, since the State Department has advised that it has reached the statutory allotment of diversity visas for FY 2017 and the September 30 statutory deadline is near. 8 Plaintiffs therefore request that the court order the State Department to reserve any unused FY 2017 visa numbers for processing after the Supreme Court issues a decision in Trump. This court has the equitable power to grant such relief, as demonstrated in Przhebelskaya v. U.S. Bureau of Citizenship &
8 The government argued at the emergency status conference that the State Department never applied the Executive Order to Plaintiff Almaqrami’s case. The record suggests otherwise. Documents submitted by Plaintiffs show that Almaqrami received at least three emails from the State Department regarding his eligibility for a visa under the Executive Order. (See ECF No. 25 at 9 (Email from the U.S. Consulate to Almaqrami indicating that “[u]nder the [Supreme] Court’s order, a visa applicant from one of the six affected countries who does not have a credible claim of a bona fide relationship . . . in the United States . . . is ineligible for a visa.”); see also ECF No. 30 (“Pls. Supp. Mem.”) at 3).
11

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 12 of 17
Immigration Servs., 338 F. Supp. 2d 399 (E.D.N.Y. 2004) and Paunescu v. Immigration and Naturalization Serv., 76 F. Supp. 2d 896 (N.D. Ill. 1999).
In Przhebelskaya, the court used its equitable authority to compel the government to “grant plaintiffs the relief to which they would have been entitled” had the government timely processed their visa and status adjustment applications, even though the statutory visa cap had been reached. 338 F. Supp. 2d at 406. Similarly, in Paunescu, the court used its mandamus authority to order the government to “process [the] plaintiffs’ [visa and status adjustment] applications and to grant plaintiffs all relief to which they would have been entitled had defendants processed their applications in a timely fashion.” 76 F. Supp. 2d at 903. The court ordered such relief even though the statutory deadline had passed. Id. In both cases, the courts exercised their equitable power to order the government to process visas, even though doing so would conflict with the statutory limitations on visa issuance.
The court’s authority to grant such relief is clear. As provided above, supra Section II.B., mandamus jurisdiction may be invoked when: “(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 plaintiff.” Fornaro, 416 F.3d at 69. Plaintiffs have a right to have their visa applications processed in accordance with the INA. See 22 C.F.R. § 42.81(a) (“When a visa application has been properly completed and executed before a consular officer in accordance with the provisions of INA . . . the consular officer must either issue or refuse the visa under INA 212(a) or INA 221(g) or other applicable law.”) (emphasis added); see also 22 C.F.R. § 40.6 (“A visa can be refused only upon a ground specifically set out in the law or implementing regulations.”). Indeed, State Department consular officers have a clear duty to do so. See 22 C.F.R. § 42.81(a). The Supreme Court will review the Ninth Circuit’s holding that the Executive Order “likely
12

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 13 of 17
exceeded the President’s authority under the INA.” Trump, 137 S. Ct. at 2085. If the Court ultimately finds that the Executive Order violated the INA, Plaintiffs’ right to have their applications processed in accordance with the law will have been violated by the State Department’s implementation of the Executive Order.
In the court’s view, granting this relief does not run afoul of the Supreme Court’s stay; the court is merely ensuring that Plaintiffs will not be deprived of a remedy should the Supreme Court rule in their favor. Moreover, there is no adequate alternative remedy available to Plaintiffs. Absent relief from this court, Plaintiffs are foreclosed from receiving visas in FY 2017 due to the impending statutory deadline. Defendants have made clear they will not issue visas past the end of the fiscal year or in excess of the statutory cap. (See generally ECF No. 47 (“Defs. Resp. Status Rep.”)). Plaintiffs’ only recourse would be to reenter the diversity visa lottery in future years, and it is statistically unlikely that Plaintiffs will win the lottery a second time, since millions enter the diversity lottery every year; Defendants concede that the “demand for [diversity] visas is high.” (Defs. Opp. at 3).
Accordingly, Defendants are ordered to (1) reserve any unused visa numbers for FY 2017 for processing following the Supreme Court’s decision (should the Court rule in Plaintiffs’ favor); and (2) report any unused visa numbers to the court by October 15. In granting such relief, the court avoids both depriving other applicants of the chance to obtain a visa—in the case of FY 2017 lottery winners—and lessening other applicants’ chances of obtaining a visa—in the case of FY 2018 lottery winners—while still addressing the potential irreparable harm that Plaintiffs face.
Defendants’ latest filing does not convince this court to find otherwise. (See generally Defs. Resp. Status Rep.). In their response to Plaintiffs’ September 22, 2017 status report,
13

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 14 of 17
Defendants argue that this case is moot because the State Department has reached the statutory cap. (See id. at 2–6). In two of the cases Defendants cite for this proposition, the courts did not reach the merits of the government’s mootness argument. See Agahi v. Tillerson, Case No. 1:17cv-01646 (D.D.C. Aug. 14, 2017), voluntarily dismissed on September 20, 2017 (ECF No. 16-1); Martens v. Duke, Case No. 2:17-cv-00924 (D.N.M. Sept. 8, 2017), voluntarily dismissed on September 25, 2017. In the other two cases upon which Defendants rely, the defendants provided data that persuasively demonstrated that all visas were indeed used in a given fiscal year. See Basova v. Ashcroft, 383 F. Supp. 2d 390, 392 (E.D.N.Y. 2005) (holding the basis of the action moot where defendants persuasively demonstrated that “50,812 visas were issued in FY 2003”); Law Office of Azita Mojarad v. Aguirre, 2006 WL 785415, at *8 (D.D.C. Mar. 26, 2006) (finding that “the USCIS reached (and in fact exceeded) its statutory cap on H-1B visas”). In this case however, the State Department only claims to not have “any available visa numbers,” (Defs. Resp. Status Rep. at 6), and therefore has not definitively shown that all visas have been issued for FY 2017. It is possible that not every applicant who currently has a visa number will receive a visa. (See generally Defs. Status Report). The possibility that the State Department has reached the statutory visa cap because it has already allotted all of the visa numbers does not necessarily render Plaintiffs’ case moot.
Defendants also argue that the court is precluded from ordering the processing of visas after the statutory deadline. However, as discussed above, the court is permitted to grant this relief. Specifically, as shown in Przhebelskaya and Paunescu, the court may order the State Department to process visas past the statutory deadline where Plaintiffs have sought relief prior to the end of the fiscal year, as Plaintiffs have here. See Przhebelskaya, 338 F. Supp. 2d at 403;
14

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 15 of 17
see also Paunescu, 76 F. Supp. 2d at 903; accord Coraggioso v. Ashcroft, 355 F.3d 730, 734 n.8 (3d Cir. 2004), as amended (Jan. 29, 2004). In Przhebelskaya, the court explicitly stated:
When a district court orders the adjudication of an application for status adjustment based on the applicant’s eligibility to receive a diversity visa, the Agency has an absolute duty to complete the adjudication and, if it finds that all of the application requirements are met, to issue the visa and grant the corresponding adjustment of status. Neither the expiration of the statutory deadline nor the fulfillment of the statutory quota extinguishes the Agency’s obligation to comply with the court’s order. Przhebelskaya, 338 F. Supp. 2d at 403 (emphasis added). The statutory temporal and numerical limitations on visa issuance do not bar this court from ordering the State Department to reserve unused visa numbers for FY 2017 for future processing. The court finds that the Plaintiffs have demonstrated: (1) a clear right to relief; (2) that the State Department has a clear duty to act; and (3) that there is no other adequate remedy available to them. Fornaro, 416 F.3d at 69. Accordingly, the court orders the State Department to report, by October 15, the number of visa numbers returned unused for FY 2017, and to hold those visa numbers to process Plaintiffs’ visa applications in the event the Supreme Court finds the Executive Order to be unlawful.
i. The Doctrine of Consular Non-Reviewability Does Not Bar Relief Defendants argue that this court is barred from reviewing “a consular officer’s decision to deny a visa” and “the timing or pace of administrative processing” of visa applications. (Defs. Opp. at 20). As Plaintiffs point out, however, the doctrine of consular non-reviewability does not apply where the government has not made a final visa decision. See Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the United States v. Kerry, 168 F. Supp. 3d 268, 291–92 (D.D.C. 2016) (holding that the doctrine of consular non-reviewability did not apply where plaintiffs’ visa applications were not formally refused, but were held in
15

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 16 of 17
“administrative processing”); see also Patel v. Reno, 134 F.3d 929, 932–33 (9th Cir. 1997) (affirming the granting of mandamus relief where plaintiff’s application had only been “provisional[ly] refused”); Maramjaya v. U.S. Citizenship & Immigration Servs., 2008 WL 9398947, at *4 (D.D.C. Mar. 26, 2008) (holding that the doctrine of consular non-reviewability did not apply where the “case ha[d] not procedurally progressed to the point where consular immunity would bar judicial review”).
Based on Plaintiffs’ latest status update, it does not appear that their applications have been finally refused. Golsefid received an email on August 24 encouraging him to “send [documents to show that he has a bona fide relationship with the United States] as soon as possible before September 13, 2017.” (ECF No. 45-1 at 17). On August 15, Zadeh received notification that “the administrative processing on [his] file has been completed,” but that he needed to submit additional documents, including documents demonstrating a bona fide relationship with the United States. (ECF No. 45-2 at 7–8). Alsakkaf received a form from the State Department indicating that he had been determined ineligible for a visa due to the Executive Order, and instructing him to send information demonstrating “a relationship that would qualify [him] for a visa issuance.” (ECF No. 45-3 at 6–7). On September 15, Almaqrami did receive a letter indicating that the State Department would “not be able to issue [him] a visa.” (ECF No. 45-4 at 2–4). However, at the emergency status conference on September 19, Defendants’ counsel maintained that Almaqrami may not receive a visa because of the 50,000 visa-statutory cap. Counsel did not indicate that he would definitely not receive a visa (although it admittedly appears unlikely), therefore it appears that Almaqrami’s visa application is pending as well. Moreover, the September 22, 2017 Declaration of Chloe Dybdahl, an attorney adviser in the Legal Affairs, Advisory Opinions Division of the Visa Office, Bureau of Consular Affairs,
16

Case 1:17-cv-01533-TSC Document 49 Filed 09/29/17 Page 17 of 17

does not definitively indicate that Plaintiffs’ applications have been finally refused. (See generally ECF No. 47-1). The State Department’s most recent communications with Plaintiffs, coupled with its representations to the court, strongly suggest that Plaintiffs’ visa applications have not been finally refused.
Even if Plaintiffs’ applications have been finally refused, the doctrine of consular nonreviewability does not apply because Plaintiffs challenge the State Department’s policy, not the discretion of a specific consular officer in applying the policy. See e.g., Patel, 134 F.3d at 931– 32 (“However, when the suit challenges the authority of the consul to take or fail to take an action as opposed to a decision taken within the consul’s discretion, jurisdiction exists.”); Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798, 801 (D.C. Cir. 1985) (holding that the court had jurisdiction where appellants “charge that the general Operations Instruction promulgated by the INS violates [the INA]”). Here, Plaintiffs do not contest a specific consular officer’s decision to deny a specific applicant a visa based on the Executive Order. Instead, Plaintiffs challenge the legality of the State Department’s policy of applying the Executive Order to the issuance of diversity visas, and thus the doctrine of consular non-reviewability bars neither their claims nor the relief they seek. IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction and emergency mandamus relief is GRANTED in part and DENIED in part.
A corresponding order will issue separately.

Date: September 29, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
17