United States District Court, District of Columbia
S. CHUTKAN, United States District Judge
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.”)). 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 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.
The Diversity Visa Program
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. 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.
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 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).
The Executive Order and the Supreme Court
Trump issued the Executive Order on March 6, 2017. The
Executive Order expired on September 24, 2017. 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
(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.
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
Refugee Assistance Project (IRAP), as well as
applications to stay the preliminary injunctions entered by
the lower courts.
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. 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.
The State Department's Implementation of the
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
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
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 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.