United States District Court, District of Columbia
AFGHAN AND IRAQI ALLIES UNDER SERIOUS THREAT BECAUSE OF THEIR FAITHFUL SERVICE TO THE UNITED STATES, ON THEIR OWN AND ON BEHALF OF OTHERS SIMILARLY SITUATED, Plaintiff,
v.
MICHAEL R. POMPEO, CARL C. RISCH, UNITED DEPARTMENT OF STATE, KIRSTJEN NIELSEN, L. FRANCIS CISSNA, DONALD NEUFELD, and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants.
MEMORANDUM OPINION
TANYA
S. CHUTKAN UNITED STATES DISTRICT JUDGE
Plaintiffs
are five anonymous Afghan or Iraqi nationals seeking refuge
in the United States. They allege that they “provided
faithful and valuable service to the U.S. government or its
allied forces” in their capacities as employees of or
on behalf of the United States government over the past
several years. (ECF. No. 23 (“Am. Compl.”) at
¶¶ 1, 56, 58, 60, 62.) They allege that because of
their service, they “face an ongoing serious threat to
their lives in their home countries.” (Id.) In
response to various threats and acts of violence, Plaintiffs
submitted Special Immigrant Visa (“SIV”)
applications to the U.S. Department of State, seeking lawful
admission into the United States. (Id. at
¶¶ 13-17.) Two Plaintiffs submitted their
applications in 2013, one in 2015, and the other two in 2016.
(Id.) Plaintiffs claim that at the time they filed
this action on June 12, 2018, none of their SIV applications
had received a final decision. (Id. at ¶¶
57, 59, 61, 63, 65.)
Plaintiffs
bring this case on behalf of themselves and a class of all
people who have applied for an Afghan or Iraqi SIV pursuant
to the Afghan Allies Protection Act of 2009, Pub. L. 111-8,
123 Stat. 807, or the Refugee Crisis in Iraq Act of 2007,
Pub. L. 110-181, 122 Stat. 395, by submitting an application
for Chief of Mission Approval, and whose applications have
been awaiting government action for longer than nine
months.[1] (ECF No. 3 (“Mot. Class
Certification”) at 1.) Plaintiffs allege that
Defendants have failed to process and adjudicate
Plaintiffs' SIV applications within a reasonable time.
(Am. Compl. at ¶ 1.) They request, among other things,
that this court (i) enter a declaratory judgment stating that
Defendants have unreasonably delayed the processing and
adjudication of all applications that have been in
government-controlled steps for longer than nine months, (ii)
compel Defendants to adjudicate the SIV applications, and
(iii) compel Defendants to appoint two SIV coordinators.
(Id. at ¶¶ 68-92.)
Defendants
have moved, pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), to partially dismiss Plaintiffs'
Amended Complaint for lack of subject matter jurisdiction and
failure to state a claim. Upon consideration of
Defendants' motion and the parties' briefs in support
thereof and in opposition thereto, and for the reasons set
forth below, the motion is hereby DENIED.
I.
FACTUAL BACKGROUND[2]
A.
Refugee Crisis in Iraq Act and Afghan Allies Protection
Act
In
2007, Congress enacted the Refugee Crisis in Iraq Act
(“RCIA”), in part to fulfill the United
States' “fundamental obligation to help the vast
number of Iraqis displaced in Iraq and throughout the region
by the war and the associated chaos, especially those who
have supported America's efforts in Iraq.” S. Res.
1651, 110th Cong. (2007) (enacted). In so doing, Congress
noted:
Many Iraqis who have worked in critical positions in direct
support of the United States Government in Iraq have been
killed or injured in reprisals for their support of the
American effort. Many more Iraqis associated with the United
States have fled Iraq in fear of being killed or injured.
Id. Under the RCIA, Iraqi nationals can apply and
interview for admission to the United States as special
immigrants if they: (1) were or are “employed by or on
behalf of the United States Government in Iraq, on or after
March 20, 2003, for not less than one year”; (2)
“provided faithful and valuable service to the United
States Government”; and (3) “experienced or [are]
experiencing an ongoing serious threat as a consequence of
[their] employment by the United States Government.”
RCIA §§ 1242(a)(2), 1244(b)(1).
In
2009, Congress enacted the Afghan Allies Protection Act
(“AAPA”), with similar objectives. (Am. Compl.
¶¶ 4, 28.) Pursuant to the AAPA, certain Afghan
nationals may receive special immigrant status if they: (1)
were or are “employed by or on behalf of the United
States Government in Afghanistan on or after October 7, 2001,
for not less than one year”; (2) “provided
faithful and valuable service to the United States
Government”; and (3) “experienced or [are]
experiencing an ongoing serious threat as a consequence of
[their] employment by the United States Government.”
AAPA §§ 602(b)(1)-(2).
Plaintiffs
allege that after the enactment of the RCIA and AAPA,
applicants to both programs experienced “considerable
processing delays that risked the lives of the very
applicants they were intended to protect.” (Am. Compl.
¶ 34.) For example, by mid-2011, four years after the
start of the Iraqi SIV program, while nearly 30, 000 Iraqi
applicants and their family members had applied for the SIV
program, only 4, 000 applications had been processed.
(Id. ¶ 37.) And, while some of the Iraqi
applicants waited for a decision, they “endur[ed]
threats or acts of violence against themselves and their
families because of their assistance to the U.S.
Government.” (Id. ¶ 34.)
In
2013, Congress amended the RCIA and AAPA to “improve
the efficiency by which applications for special immigrant
visas . . . are processed.” RCIA § 1242(c)(1);
AAPA § 602(b)(4)(A). Per the amendment, all
government-controlled steps incidental to issuing the SIVs,
“including required screenings and background checks,
” should be completed within nine months after
submission of a complete application. Id. However,
additional time may be taken to process “visas in
high-risk cases for which satisfaction of national security
concerns requires additional time.” RCIA §
1242(c)(2); AAPA § 602(b)(4)(B). The amendment also
required the Secretary of State and the Secretary of Homeland
Security, in consultation with the Secretary of Defense, to
publish periodic reports describing “the implementation
of improvements to the processing of applications for special
immigrant visas.” RCIA § 1242(f)(2); AAPA §
602(b)(12)(B). These reports must include, among other
things, information on enhancements made to provide for the
orderly processing of applications without significant delay
and “the reasons for the failure to process any
applications that have been pending for longer than 9
months.” Id.
B.
Afghan and Iraqi SIV Application Process
To
successfully obtain admission into the United States through
the SIV program, Iraqi and Afghan nationals must complete
fourteen steps. (Am. Compl. ¶ 31.) In the January 2018
joint periodic report, incorporated by reference in
Plaintiffs' Amended Complaint (see Id.
¶¶ 45- 46, 48), the steps are grouped together to
comprise a four-stage process. (See ECF No. 36-14 at
58-62 (“January 2018 Joint Report”).)
The
first stage is referred to as the “Chief of Mission
(‘COM') application process.” (Id.
at 2.) It begins at step one with the submission of an
application, including “a ‘statement of credible
threat' detailing the ongoing threat to the applicant as
a result of the applicant's service and a letter of
recommendation from a supervisor attesting to the
applicant's ‘faithful and valuable
service.'” (Am. Compl. ¶ 31.) At steps two
through five, the National Visa Center (“NVC”)
reviews the application and sends it to COM, who either
approves or denies it. (Id.) An applicant who is
denied has a statutory right to appeal the decision within
120 days. (Id.) In 2017, the successful appeal rate
at the COM Approval stage was 40% for Iraqi applicants and
66% for Afghan applicants. (Id.)
The
second stage is the “Form I-360 adjudication
process.” (January 2018 Joint Report at 2.) It consists
of steps six and seven. (Id.) At step six, the
applicant submits a Special Immigrant Petition to U.S.
Citizenship and Immigration Services (“USCIS”)
for categorization as a special immigrant. (Am. Compl. ¶
31.) At step seven, USCIS “adjudicates the Special
Immigrant Petition and communicates the results to
NVC.” (Id.)
The
third stage is the “Visa Interview Process”; it
includes steps that occur before and after the interview.
(January 2018 Joint Report at 3.) At steps eight through
eleven, which occur before the interview, the NVC requests
and reviews “standard immigrant visa
documentation” from the applicant to determine whether
the applicant is admissible to the United States and eligible
for a United States visa. (Am. Compl. ¶ 31.) If the
applicant is eligible, she will be contacted to schedule an
interview at the embassy in Afghanistan or Iraq.
(Id.) Step twelve is an interview with a consular
officer. (Id.) Following the interview, if the
applicant has not been denied, her case undergoes step
thirteen, administrative processing. (Id.)
The
fourth and final stage is known as “Visa issuance to
eligible applicants.” (January 2018 Joint Report at 3.)
This stage consists of only one step-fourteen. Id.
After obtaining a medical examination, eligible applicants
are issued an SIV. Id. With an SIV, an individual is
“eligible to receive resettlement benefits upon arrival
and to apply for adjustment of status to seek the status of
lawful permanent resident and ultimately of citizen.”
(Am. Compl. ¶ 33.)
C.
Provisional Class Representatives
There
are five provisional class representatives: Mr. Doe-Alpha,
Ms. Doe-Bravo, Mr. Doe-Charlie, Ms. Doe-Delta, and Mr.
Doe-Echo. The provisional class representatives are SIV
applicants, who reside in either Iraq or Afghanistan and
“live in fear of reprisal for their service to the U.S.
government while they await final decisions from Defendants
on their applications.” (Id. ¶ 55.) In
the case of each provisional class representative, Plaintiffs
allege that “Defendants have now taken far longer than
the statutorily-allowed nine months to complete all
government-controlled processing steps.” (Id.)
1.
Mr. Doe-Alpha
Mr.
Doe-Alpha is an Afghan national who applied to the SIV
program on September 25, 2013, following approximately two
years of service to a United States government contractor.
(Id. ¶¶ 13, 56-57.) Although Mr. Doe-Alpha
fled his Taliban-controlled hometown and relocated his wife
and daughter to a nearby city, his family members who
remained behind have been repeatedly threatened and harassed
by individuals self-identifying as the Taliban. (Id.
¶¶ 9, 56.) In addition, at some point, the Taliban
placed Mr. Doe-Alpha's parents under house arrest.
(Id. ¶ 56.) As a result, Mr. Doe-Alpha fears
that if he returns to his hometown, he will be targeted by
the Taliban. (Id.)
When
the Amended Complaint was filed, Mr. Doe-Alpha had been
seeking a final decision on his SIV application for almost
five years. (Id. ¶ 57.) Defendants took
“over four months for the initial COM decision; five
days for his Special Immigrant Petition; and over twelve
months for his visa interview.” (Id.) On June
11, 2015, Mr. Doe-Alpha had his visa interview.
(Id.) Since then, his application has remained at
stage three, step thirteen of the Afghan SIV application
process-administrative processing. (Id.)
2.
Ms. Doe-Bravo
Ms.
Doe-Bravo is an Afghan national who applied to the SIV
program on October 15, 2015, following approximately two
years of service to a United States government-funded
development organization. (Id. ¶¶ 14,
58-59.) In response to frequent death threats via letter and
phone, Ms. Doe-Bravo has changed her phone number and
relocated with her husband and three young children numerous
times. (Id. ΒΆΒΆ 9, 58.) She alleges that
she ...