United States District Court, District of Columbia
NINE IRAQI ALLIES UNDER SERIOUS THREAT BECAUSE OF THEIR FAITHFUL SERVICE TO THE UNITED STATES, Plaintiffs,
HON. JOHN F. KERRY, et al. Defendants,
Gladys Kessler United States District Judge
I. BACKGROUND . . .................................................. 4
A. The Special Immigrant Visa Programs........................... 4
B. Plaintiffs' Circumstances.................................... 10
II. STANDARD OF REVIEW........................................... 18
III. ANALYSIS..................................................... 20
A. Plaintiffs' Motion for Leave to File Supplemental Declaration 20
B. Counts 3-6: Failure to Adjudicate Plaintiffs' Applications... 22
1. Standing.......................................................... 24
2. The Doctrine of Consular Nonreviewability...................... 28
3. Judicially Manageable Standards to Enforce a Non-discretionary Duty............................................................... 52
4. The APA and the Mandamus Act.................................... 59
C. Counts 1 & 2: Failure to Protect............................. 61
IV. CONCLUSION................................................... 67
Plaintiffs in this case are Iraqi and Afghan citizens who incurred great risks to themselves and their families through their service to the United States during the military operations in Iraq and Afghanistan known as Operation Iraqi Freedom and Operation Enduring Freedom. In order to avoid ongoing threats to their personal safety, Plaintiffs hope to immigrate to the United States pursuant to Iraqi and Afghan Special Immigrant Visa programs that Congress authorized to provide refuge for Iraqis and Afghans who face or have faced serious threats because of their past faithful service to the United States. See Refugee Crisis in Iraq Act of 2007 ("RCIA"), 8 U.S.C. § 1157 note at §§ 1241-49; Afghan Allies Protection Act of 2009 ("AAPA"), 8 U.S.C. § 1101 note at §§ 601-02.Because of the ongoing risk of reprisal they face, Plaintiffs have been granted leave to proceed by pseudonym in this action.See Order Granting Motion to Proceed by Pseudonym [Dkt. No. 2].
Plaintiffs contend that Defendants, Secretary of State John F. Kerry, the Department of State, Secretary of Homeland Security Jeh Charles Johnson, and the Department of Homeland Security (collectively, "Defendants" or "the Government"), have failed to make reasonable efforts to protect Plaintiffs or remove them from Iraq and Afghanistan, and have failed to finally adjudicate Plaintiffs' Special Immigrant Visa applications within a reasonable period of time. Amended Compl. ¶¶ 205-54. Plaintiffs' Amended Complaint seeks an order compelling these actions pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1), and the Mandamus Act, 28 U.S.C. § 13 61.
On September 1, 2015, the Government filed its Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim ("Gov't's Mot.") [Dkt. No. 36]. It contends that Plaintiffs lack standing to pursue their claims and have failed to state claims upon which relief can be granted because, among other reasons, Plaintiffs have received final refusals of their applications. On September 25, 2015, Plaintiffs filed their Opposition [Dkt. No. 43], and on October 2, 2015, the Government filed its Reply [Dkt. No. 45].
On October 23, 2015, Plaintiffs filed a Motion for Leave to File a Supplemental Declaration in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss [Dkt. No. 48] along with a copy of the Supplemental Declaration [Dkt. No. 48-1] . On November 6, 2015, the Government filed its Response [Dkt. No. 49]. On November 9, 2015, Plaintiffs filed their Reply [Dkt. No. 50] .
Upon consideration of the Government's Motion to Dismiss, Plaintiffs' Opposition, the Government's Reply, Plaintiffs' Motion for Leave, the Government's Response, Plaintiffs' Reply, and the entire record herein, and for the reasons stated below, Plaintiffs' Motion for Leave to File a Supplemental Declaration shall be granted and the Government's Motion to Dismiss shall be granted with respect to Counts 1 & 2 and denied with respect to Counts 3-6 (except insofar as those claims relate to Alpha, Bravo, and Delta).
A. The Special Immigrant Visa Programs
In recognition of the grave dangers faced by many Iraqis and Afghans who have assisted United States' military efforts in their countries, Congress established Iraqi and Afghan Special Immigrant Visa ("SIV") programs, enacting the Refugee Crisis in Iraq Act of 2007, RCIA §§ 1241-49, and the Afghan Allies Protection Act of 2009, AAPA §§ 601-02. Under the Iraqi SIV program, an SIV may be granted to an applicant who:
(A) is a citizen or national of Iraq;
(B) was or is employed by or on behalf of the United States Government in Iraq, on or after March 20, 2003, for not less than one year;
(C) provided faithful and valuable service to the United States Government, which is documented in a positive recommendation or evaluation . . . from the employee's senior supervisor or the person currently occupying that position, or a more senior person, if the employee's senior supervisor has left the employer or has left Iraq; and
(D) has experienced or is experiencing an ongoing serious threat as a consequence of the alien's employment by the United States Government.
RCIA § 1244(b) (1). Spouses and children of individuals who meet the RCIA's requirements may also receive SIVs. RCIA § 1244(b)(2).
The AAPA includes substantially similar provisions that offer SIVs to citizens or nationals of Afghanistan employed by or on behalf of the United States Government (or in certain circumstances, the International Security Assistance Force) in Afghanistan, on or after October 7, 2001 for not less than one year, as well as their spouses and children. AAPA § 602(b)(2)(A) & (B) .
In both the RCIA and the AAPA, Congress instructed Defendants to "improve the efficiency by which applications for [SIVs] under [the Iraqi and Afghan SIV programs] are processed[.]" AAPA § 602(b) (4) (A); RCIA § 1242(c) (1) . Congress emphasized this point with the directive that SIV applications shall be "processed so that all steps under the control of the respective departments incidental to the issuance of [SIVs], including required screenings and background checks, should be completed not later than 9 months after the date on which an eligible alien submits all required materials to complete an application for such visa." RCIA § 1242(c)(1); AAPA § 602(b)(4)(A) (repeating identical language). Mindful that particular cases might present national security risks not present in the average SIV application, Congress added that "[n]othing in [the] section [quoted immediately above] shall be construed to limit the ability of [the Secretary of State or Secretary of Homeland Security] to take longer than 9 months to complete those steps incidental to the issuance of such visas in high-risk cases for which satisfaction of national security concerns requires additional time." RCIA § 1242(c)(2); AAPA § 602(b)(4)(B) (same).
Both statutes also provide that "[t]he Secretary of State, in consultation with the heads of other relevant Federal agencies, shall make a reasonable effort to provide an alien described in this section who is applying for a special immigrant visa with protection or the immediate removal from [Iraq or Afghanistan], if possible, of such alien if the Secretary determines after consultation that such alien is in imminent danger." RCIA § 1244(e); AAPA § 602(b)(6) (providing same treatment for protection or removal of applicants from Afghanistan with only slight differences in phrasing).
The RCIA and AAPA require Defendants to issue reports to Congress regarding the number and status of SIV applications and improvements to the process for considering SIV applications. See RCIA § 1248(a), (f); APAA § (b) (11). Many of these Joint Reports from the Departments of State and Homeland Security (referred to throughout as "Joint Reports"), which Plaintiffs summarized in their Amended Complaint and submitted as exhibits to their Opposition, provide insight into the process by which Defendants review Iraqi and Afghan SIV applications. See Amended Compl. ¶¶ 44-50; Pls.' Exs. L-W [Dkt. Nos. 43-4 through 43-15].
As each of the Joint Reports states, "SIV applications move through 14 steps, in the following four stages: Chief of Mission ("COM") Application Process; Form 1-360 Adjudication; Visa Interview; and Visa Issuance." E.g., Pls.' Ex. L at 2. Chief of Mission Approval (which is granted on the basis of the Chief of Mission Application and is referred to by the Parties as "COM Approval") is required by the APAA and RCIA. RCIA § 1244(b)(4); AAPA § 602(b) (2) (D) . Both statutes state that the relevant Chief of Mission in Iraq or Afghanistan must "conduct a risk assessment of the alien and an independent review of records maintained by the United States Government or hiring organization or entity to confirm employment and faithful and valuable service to the United States Government prior to approval of a petition under this section." RCIA § 1244(b)(4)(A); AAPA § 602(b)(2)(D)(i).
Once an applicant has received COM Approval, he or she must enter the second stage of the process by submitting a completed Form 1-36 0 to the Department of Homeland Security's U.S. Citizenship and Immigration Services ("USCIS"). E.g., Pls.' Ex. R at 3. If USCIS approves the petition, it is sent to the Department of State's National Visa Center ("NVC"), and the applicant begins the Visa Interview Process stage. Id.
The Visa Interview Process stage includes six steps of the 14 steps that make up the SIV application process -- more than any of the three other stages. Id. In this stage, the applicant must submit certain documents to the NVC and schedule an interview at the appropriate U.S. Embassy. Id.
The Joint Reports uniformly describe the last two steps in the Visa Interview Process stage (which are steps 12 and 13 of the full 14-step application process) as follows:
12. Applicant is interviewed by consular officer on the scheduled appointment date. Administrative processing is initiated following the interview.
13. The applicant's case undergoes administrative processing.
E.g., Pls.' Ex. 0 at 3.
"Upon completion of administrative processing, " the applicant enters the fourth and final stage: Visa Issuance. Id. This last stage has just one step in which a "visa is issued if [the] applicant is eligible." Id. However, the Joint Reports note that by this point, "[i]n some cases, the passport or medical exam will have expired and require renewal by the applicant." Id.
B. Plaintiffs' Circumstances
Plaintiffs' Amended Complaint brings claims on behalf of 12 Plaintiffs --8 Iraqi and 4 Afghan citizens -- proceeding under the following pseudonyms: Ronaldo, Alpha, Bravo, Delta, Foxtrot, India, Juliet, Alice, Hotel, Lima, Kilo, and Mike.
There is significant disagreement between the Parties as to the circumstances of the 12 Plaintiffs' applications. Some of the disagreements are over the Parties' construction of the law and facts at issue in this particular case. For example, Plaintiffs contend that most of their applications have not been finally granted or refused, but instead, languish in an intermediate stage of "administrative processing." See Poellot Decl. [Dkt. No. 43-1]; Pls.' Exs. C-K [Dkt. Nos. 44-2 through 44-10]. The Government contends, counterintuitively, that while Plaintiffs' applications may still be granted following "administrative processing, " the applications have, in fact, been finally refused. See Dybdahl Decl. [Dkt. No. 36-1] . Disagreements of this type are flagged in the paragraphs that follow and are discussed more thoroughly in subsequent sections of this Memorandum Opinion.
Other disagreements are over the Government's apparent factual mistakes. Because these disagreements appear to concern obvious errors, the Court will resolve them in this section. The Court will discuss groups of Plaintiffs collectively where appropriate and indicate when it is resolving the Parties' competing views of the facts, as it must when facts determine the Court's jurisdiction. Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) ("the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction"); Fed.R.Civ.P. 12(h) (3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
Ronaldo is an Iraqi citizen who applied for COM Approval on October 2, 2009, and completed his visa interview on October 13, 2010. Amended Compl. at ¶ 62. A Declaration submitted by the Government (referred to throughout as the Dybdahl Declaration) states that as of September 1, 2 015, Ronaldo's application had been refused under 8 U.S.C. § 1201(g). Dybdahl Decl. ¶ 5. According to the Department of State's Consular Electronic Application Center Case Status Tracker ("Case Status Tracker"), which allows applicants to verify the status of their SIV applications, Pls.' Ex. X [Dkt. No. 43-16], as of September 11, 2015, Ronaldo's application remained in "administrative processing, " Pls.' Ex. C. [Dkt. No. 44-4] .
Despite the statement from the Government's own declarant that Ronaldo's visa had been refused, the Government's Motion inexplicably asserts four times that Ronaldo has been issued a visa, rendering his claims moot. Gov't's Mot. at 1 n.l (inaccurately citing Dybdahl Decl. for proposition that Ronaldo had been issued a visa); id. at 10 (same); id. at 8 (repeating claim without citation); id. at 9 (repeating claim without citation). In their Opposition, Plaintiffs correct the Government's apparent error as to Ronaldo's application status, noting that Ronaldo has not been issued a visa. Pls.' Opp'n at 3 n.3. The Government's Reply does not acknowledge, correct, or even address the error.
Apparently attempting to set the record straight, on October 15, 2015, Ronaldo's counsel emailed the Immigrant Visa Unit at the U.S. Embassy in Baghdad to inquire about the status of Ronaldo's application. See Ramos-Mrosovsky Decl. [Dkt. No. 48-1]. The Immigrant Visa Unit responded:
Your client's case remains pending additional administrative processing, which must be completed before a final determination can be made on his Special Immigrant Visa (SIV) application. As soon as this administrative processing stage is finalized, we will immediately contact you with further details. No further action is required from your client at this time.
Supp. Decl. Ex. A [Dkt. No. 48-2]. On October 23, 2015, Plaintiffs submitted a Motion for Leave to File this e-mail and an accompanying declaration on the docket. On November 6, 2 015, the Government filed its Opposition, which again, never even acknowledged its previous erroneous statements as to the status of Ronaldo's visa application. Along with its Opposition, the Government filed an updated version of the Dybdahl Declaration ("Second Dybdahl Decl."), which, like the previous Dybdahl Declaration, states that Ronaldo's visa application "remains refused under  8 U.S.C. § 1201(g)." Second Dybdahl Decl. [Dkt. No. 49-1].
Upon this record, it is clear that Ronaldo has not received a visa.
Alpha is an Iraqi citizen who applied for COM Approval on January 5, 2 010, and completed his visa interview on August 25, 2011. Amended Compl. ¶ 73. According to the Government's declarant, Alpha and his family members were issued visas on August 30, 2015. Dybdahl Dec. at ¶ 6. Plaintiffs agree that Alpha has been granted a visa. Pls.' Opp'n at 3 n.3. However, the Government's Motion to Dismiss -- filed September 1, 2015 -- states at several points that Alpha's visa application had been finally refused under 8 U.S.C. § 1201(g). Gov't's Mot. at 4, 8, 9, 10, and 13. Plaintiffs' Opposition notes the Government's apparent error, Pls.' Opp'n at 3 n.3, but the Government's Reply fails to acknowledge it.
Accordingly, the Court concludes that Alpha has, in fact, been issued a visa, and Alpha's claims are moot.
Bravo is an Iraqi citizen who applied for COM Approval on March 30, 2011, and completed his visa interview on February 13, 2012. Amended Compl. at ¶ 81. The Dybdahl Declaration states that as of September 1, 2015, Bravo's application had been refused under 8 U.S.C. § 1201(g), and the Government's Motion states that Bravo's application had received a "final" refusal as of that date. Gov't's Mot. at 10; Dybdahl Decl. ¶ 7. However, on September 4, 2015, Bravo and his family members were issued visas. Pls.' Opp'n at 3 n.3; Second Dybdahl Decl. at ¶ 7. Thus, Bravo's claims are moot.
Delta is an Iraqi citizen who applied for COM Approval on February 1, 2011, and completed his visa interview on October 4, 2011. Amended Compl. at ¶ 89. The Dybdahl Declaration states that Delta and his wife were most recently interviewed by a consular officer on August 27, 2015, but as of September 1, 2015, Delta's application had been refused under 8 U.S.C. § 1201(g). Dybdahl Decl. at ¶ 9. The Second Dybdahl Declaration, however, states that on September 30, 2015, a consular officer issued visas to Delta and his family members. Second Dybdahl Decl. at ¶ 9. Thus, Delta's claims are moot.
5. Foxtrot, India, Juliet, and Alice
Foxtrot, India, Juliet, and Alice are Iraqi citizens. Foxtrot first applied for COM Approval on March 20, 2011, and completed his visa interview on September 17, 2012. Amended Compl. ¶ 100.
India first applied for COM Approval on February 2, 2010. Amended Compl. ¶ 125. India and his family members were issued visas in June of 2012. Dybdahl Decl. ¶ 14. However, he and his family were not permitted to board a flight to the United States, and the visas were subsequently revoked. Id.
Juliet first applied for COM Approval on March 29, 2 011, and completed his visa interview on March 1, ...