Afghan and Iraqi Allies Under Serious Threat v. Pompeo

          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. ¶¶ 9, 58.) She alleges that she ...