asylum seekers in Southeast Asia" and that "the majority of the screened-out Lao are in Thailand, where our embassy advises any who are beneficiaries of [IV] petitions to return to Laos . . .").
Defendants claim that the affidavits of Messrs. Sykes, Leininger and Hancock "demonstrate that the policies of the Department of State are not impermissibly-based on nationality" and that the declarations instead show that the Department's policy "is based solely upon the status of the [sic] as screened out applicant and not the nationality of the applicant . . . ." Defts.' Opp'n at 17-18. The Court fails to see how these declarations prove that point. What the declarations appear to prove is that the Department of State maintains a policy that discriminates against asylum-seekers from not one, but two or three specific countries. In any event, the fact that evidence exists that the Department maintains the same policy with respect to Laotians and Cambodians provides no argument or justification for straying from the result reached by the Court of Appeals in LAVAS.
Finally, defendants argue that plaintiffs are not likely to succeed on the merits because, as the government argues in its petition for rehearing, "there is an important difference between the Secretary [of State]'s consular venue power and the consular officer's authority to issue a visa." Defts.' Opp'n at 19. Defendants argue that 8 U.S.C. § 1152(a)(1) speaks only to non-discrimination in the issuance of a visa, not non-discrimination in regulating the place where visa applications shall be made. Id. Defendants also contend that the political question doctrine prevents this Court from reviewing consular venue decisions. Id. at 20 n. 8. These arguments, too, are foreclosed by LAVAS. The Court of Appeals already has considered and rejected these contentions in LAVAS. It first implicitly rejected the nonjusticiability argument to reach the merits, and then it expressly held that the Department's refusal to process screened-out Vietnamese asylum-seekers in Hong Kong violated the statute. This proceeding is not the proper forum to reargue the merits of LAVAS.
In sum, LAVAS is the law of this Circuit, and will remain so unless or until the opinion in LAVAS is withdrawn by the panel or reversed by the Court of Appeals en banc. Plaintiffs' likelihood of success on the merits in this case therefore is not just substantial but virtually certain.
B. Irreparable Injury
Plaintiffs have made a strong case that Mrs. Le will be irreparably harmed in the absence of preliminary injunctive relief. Mrs. Le has been detained in the Hong Kong detention camps since 1988. Le Decl. P 3. High Island, the Hong Kong camp where Mrs. Le has been detained since 1994, is the Hong Kong government's staging site for forced-repatriation flights. Decl. of Pamela Baker, P 3. Hong Kong police recently have used tear gas to quell disturbances at the High Island and Whitehead camps. Decl. of Jaclyn Fabre, PP 4-15, and attachment (listing dozens of Vietnamese detainees injured by "direct impact assaults" of mace, police batons, and the like during the disturbances).
In sum, Mrs. Le appears to be in some physical danger at High Island and is also in danger of being forcibly repatriated from High Island to Vietnam.
Should Mrs. Le return to Vietnam (voluntarily or involuntarily) she would have to obtain an exit visa through Vietnam's Orderly Departure Program ("ODP"). Vietnam does not recognize marriages performed outside the country except in very limited circumstances. Decl. of Lan Quoc Nguyen at PP 8, 9. The Vietnam government is less likely to grant an exit visa to a person seeking to rejoin his or her spouse if that person was married outside of Vietnam. See Decl. of Minh Hai at 2, P 9. Mrs. Le and Mr. Vo were married in Hong Kong in 1992. Therefore, the possibility that Mrs. Le could obtain an exit visa should she return or be returned to Vietnam, if not foreclosed, is at least called into substantial doubt.
The cumulative effect of these potential injuries -- the ongoing threat to Mrs. Le's health and safety, the ongoing threat of repatriation, and the strong possibility that, should Mrs. Le be repatriated, she could not secure an exit visa -- is enough to satisfy this Court that irreparable harm would exist here.
The Court of Appeals in LAVAS necessarily found irreparable injury to exist when it granted plaintiffs' request for emergency injunctive relief after this Court denied plaintiffs' request for a temporary restraining order. See LAVAS v. Department of State, 1994 U.S. App. LEXIS 4194, No. 94-5046 (D.C. Cir. March 6, 1994) (order granting emergency injunctive relief). At oral argument in this case, defendants maintained that the potential for irreparable harm was a near-certainty in LAVAS, because several of the plaintiffs in LAVAS were scheduled to board a forced-repatriation flight only days after plaintiffs filed their petition for emergency injunctive relief in the Court of Appeals. The same situation is not present here, they say, since Mrs. Le is not currently scheduled on a forced-repatriation flight, and the Court was advised that the next such flight is not scheduled to occur until August. See Leininger Aff. at P 17 (noting that Mrs. Le was not scheduled on a July forced-repatriation flight). But see Letter from B.J. Bresnihan to John Swensen, Pls.' Reply App., Tab 2 (stating with respect to Mrs. Le and others that he could not give "any undertaking that these . . . individuals will not be returned to Vietnam before a decision is handed down in LAVAS v. Department of State").
The Court finds that even assuming the potential for irreparable injury to plaintiffs in this case is somewhat less than the imminent injury faced by the plaintiffs in LAVAS, that difference in degree is far subsumed by the plaintiffs' likelihood of success on the merits in this case. As the court stated in Cuomo v. United States Nuclear Regulatory Commission, 772 F.2d at 974, a court's decision to award preliminary injunctive relief is not a wooden exercise. A court may award injunctive relief where the potential for irreparable injury is high and the possibility of success on the merits somewhat lower, or vice versa. Id. See also Population Institute v. McPherson, 254 U.S. App. D.C. 395, 797 F.2d 1062, 1078 (D.C. Cir. 1986). The Court of Appeals obviously did not have the benefit of its opinion in LAVAS when it issued the order granting the LAVAS plaintiffs preliminary injunctive relief; but this Court does have the benefit of LAVAS, and it finds that plaintiffs' likelihood of success on the merits is so high as to mitigate whatever lessened potential for injury exists here as compared to the LAVAS plaintiffs.
C. Harm To Other Interested Parties And The Public Interest
The last two factors of the Court's analysis may be treated with greater dispatch. Defendants assert that, should this Court grant plaintiffs' motion for a preliminary injunction, the court order would have a negative impact on the foreign policy of the United States. The Department contends that the defendants and the public interest "will suffer substantial harm" should the Department be ordered to process Mrs. Le's application, because such a court order "would require discussions of broad foreign policy issues including the U.S. policy toward the CPA . . . and would hamper the State Department's ability to negotiate with foreign powers in the sensitive area of repatriation and resettlement of Vietnamese asylum seekers." Defts.' Opp'n at 27; Hancock Aff., P 9. Defendants also contend that a court order mandating the processing of Mrs. Le's visa application would also "interfere with the Department's ability to adjudicate immigrant visas free of judicial interference . . . ." Defts.' Opp'n at 27. Finally, defendants claim that a court order in this case would discourage the voluntary repatriation of those Vietnamese still in Hong Kong detention camps.
Defendants' argument that a court order in this case would "interfere with important foreign policy objectives" and would "hamper the State Department's ability to negotiate" with foreign powers rings hollow. It is a recasting of the argument made by the Department in LAVAS that the issue in that case was nonjusticiable. Again, this is not the proper forum to relitigate LAVAS; it is apparent from the opinion of the D.C. Circuit in LAVAS that that court did not consider this issue nonjusticiable.
As for defendants' argument that a court order would dissuade Vietnamese in the Hong Kong camps from voluntarily returning to Vietnam, see Supplemental Aff. of Wayne Leininger (filed June 26, 1995), at PP 13-15 (noting a correlation between the Department's decision to resume processing and "de-volunteering"), the Court notes that events outside the control of the Department of State and this Court -- namely, the Smith Resolution recently passed by the House of Representatives -- have had an equal, if not much greater, hand in causing the ebb and flow of volunteers for repatriation than has any court order. See June 14 Leininger Aff. at P 14 (noting that the Smith Resolution "holds out the prospect of resettlement in the U.S. of about half the 40,000 camp residents"); Sykes Aff. at PP 9-11 (assessing the "damage done by the proposed legislation to the CPA and U.S. policy interests").
The impact on the Department of a court order requiring processing of Mrs. Le's application is negligible from an administrative standpoint. Only approximately 100 immigrant visa beneficiaries remain in the Hong Kong camps, out of a total population of 22,000 detainees. Decl. of David Ireland, P 5. The Consulate is still processing screened-out Vietnamese with IV petitions who proved themselves document-ready by the December 1, 1995, cut-off date imposed by the Department. The Consulate has processed at least 19 screened-out Vietnamese immigrants in the past four months. Decl. of Mark Zuckerman at P 23. A court order requiring processing of Mrs. Le's application would have no appreciable additional administrative impact on the Department.
Finally, defendants argue that the public interest will not be served by a court order granting preliminary injunctive relief, citing the same general arguments against court interference in the conduct of foreign affairs. Plaintiffs point out that the public interest is harmed by the defendants' perpetuating a policy that has been found by the D.C. Circuit to discriminate against Vietnamese immigrants on the basis of their nationality in violation of law. Even though there surely is a public interest in the effective and autonomous conduct of foreign policy by the executive branch, the public interest in an even-handed, non-discriminatory immigration policy is also strong. In view of the decision of the Court of Appeals in LAVAS that that interest is being thwarted, plaintiffs' strong likelihood of success on the merits, and the probability of irreparable harm to plaintiffs, the Court concludes that injunctive relief is appropriate.
The Court finds that the plaintiffs have adequately established more than a substantial likelihood of success on the merits of their case. In addition, plaintiffs have adequately demonstrated the probability of irreparable injury in the absence of injunctive relief. Finally, the Court finds that the harm to defendants from a court order granting preliminary injunctive relief is minimal at best, and that the public interest militates in favor of preliminary injunctive relief in this case. Accordingly, the Court grants plaintiffs' motion for a preliminary injunction.
* * *
Plaintiffs' motion for leave to file supplemental declarations with their reply memorandum is also pending. Defendants did not oppose this motion on the understanding that they would be permitted to file supplemental declarations in response to plaintiffs' supplemental reply declarations. Plaintiffs' motion to file supplemental affidavits with their reply memorandum therefore is granted.
Plaintiffs now have moved for leave to file a supplemental declaration of Mark L. Zuckerman for the limited purpose of responding to Mr. Leininger's assertion in his affidavit filed June 26, 1995, that Hong Kong Refugee Coordinator Brian Bresnihan "has agreed to inform [the United States] Consulate not less than two weeks before any attempt to repatriate Mrs. Le might be made." Supp. Leininger Aff. at P 21. The Court denies plaintiffs' motion because, while it may strengthen plaintiffs' irreparable injury argument, it does not appear that the supplemental Zuckerman declaration is otherwise relevant to the relief sought by plaintiffs and granted by this Court.
A separate Order accompanies this Opinion.
PAUL L. FRIEDMAN
United States District Judge
This matter came before the Court on Plaintiffs' Motion for Preliminary Injunction. The Court heard oral argument on June 21, 1995. Upon consideration of the Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction, Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction, Plaintiffs' Reply, and Defendants' supplemental filing of responsive affidavits, and the entire record, and for the reasons stated in the Court's accompanying Opinion, Plaintiffs' motion for preliminary injunctive relief is granted. Accordingly, it is hereby
ORDERED, that Defendants, their agents, employees, and successors in office are hereby enjoined from implementing their decision to refuse processing of the immigrant visa application of Le Thi Thanh Xuan at the United States Consulate in Hong Kong; it is further
ORDERED, that Defendants, their agents, employees, and successors in office are hereby enjoined and directed to process forthwith the immigrant visa application of Le Thi Thanh Xuan at the United States Consulate in Hong Kong in accordance with their practice prior to December 1, 1994; it is further
ORDERED, that plaintiffs' motion to file supplemental declarations is GRANTED; it is further
ORDERED, that plaintiffs' opposition to defendants' filing of the Affidavit of Martha Sardinas is DENIED; and it is further
ORDERED, that plaintiffs' motion for leave to file the supplemental declaration of Mark L. Zuckerman is DENIED.
PAUL L. FRIEDMAN
United States District Judge