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Afghan & Iraqi Allies v. Pompeo

United States District Court, District of Columbia

September 20, 2019

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, et. al., Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN, United States District Judge.

         Plaintiffs represent a class of individuals who, despite real and significant personal risk, aided the United States in its time of need and now look to the United States for protection for themselves and their immediate family members.

         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 claim that because of their service, they “face an ongoing serious threat to their lives in their home countries.” (Id.) Because of these threats, they 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. No. 111-8, 123 Stat. 807 (“AAPA”), or the Refugee Crisis in Iraq Act of 2007, Pub. L. No. 110-181, 122 Stat. 395 (“RCIA”), by submitting an application for Chief of Mission (“COM”) approval, and whose applications have been awaiting government action for longer than 9 months.[1] (ECF No. 3 (“Mot. Class Certification”) at 1.) They claim that Defendants have failed to process and adjudicate their SIV applications within a reasonable time. (Am. Compl. at ¶ 1.)

         Plaintiffs moved, pursuant to Federal Rule of Civil Procedure 65, “for a preliminary injunction order declaring unreasonable Defendants’ delay in the processing of Plaintiffs’ SIV applications and ordering Defendants to (1) submit within 30 days a plan for promptly processing and adjudicating the applications, which should be developed with Plaintiffs’ input, and (2) submit progress reports every 30 days thereafter.” (ECF. No. 34 (“Pls.’ PI Mot.”) at 1.)[2] During the July 26, 2019 motions hearing, the court consolidated the hearing on the preliminary injunction with the “trial on the merits, ” pursuant to Federal Rule of Civil Procedure 65(a)(2); thereby converting Plaintiffs’ motion to one for summary judgment. Upon consideration of Plaintiffs’ motion and the parties’ briefs in support thereof and in opposition thereto, the arguments presented at the July 26, 2019 motions hearing, and for the reasons set forth below, Plaintiffs’ motion is hereby GRANTED, in part, and DENIED, in part.

         I. BACKGROUND

         The court assumes the parties’ familiarity with the facts of this case and recites only what is necessary to resolve the narrow issue before the court.[3]

         Along with its response to Defendants’ motion to dismiss, Plaintiffs also filed a preliminary injunction motion and an expedited discovery motion. (ECF Nos. 34–36.) The motion for a preliminary injunction explained that the additional filings were needed to “avoid further delay” in light of “Defendants’ failure to produce data in informal discovery that should have been simple for them to produce.” (Pls.’ PI Mot. at 13.) Plaintiffs requested permission to supplement the preliminary injunction motion once discovery had been completed. (See id.; ECF No. 44 (“Pls.’ Reply”) at 1, n.2.)

         Because Plaintiffs asked to supplement the motion with discovery before the court ruled on the merits, the court turned first to Defendants’ partial motion to dismiss and Plaintiffs’ motion for expedited discovery. By Memorandum Opinion and Orders dated January 30, 2019 (ECF Nos. 47– 49), the court:

1. Granted Plaintiffs’ motion for class certification on a provisional basis, for the sole purpose of resolving Defendants’ partial motion to dismiss, Plaintiffs’ motion for preliminary injunction, and Plaintiffs’ motion for expedited discovery;
2. Appointed Plaintiffs’ counsel to represent the provisional class;
3. Denied Defendants’ motion to dismiss;
4. Granted Plaintiffs’ motion to expedite discovery; and
5. Issued a discovery, briefing, and hearing schedule.

         Despite some delays, Plaintiffs eventually received most of the discovery that they sought, and supplemented their motion.[4]

         Before expedited discovery began, Plaintiffs used named Plaintiffs’ individual circumstances and data mined from the periodic SIV reports and adduced that applicants experienced wait times longer than the 9-month benchmark referenced in the statute. When the preliminary injunction motion was filed, named Plaintiffs had been waiting in government-controlled steps of the process between 18 and 52 months. (Pls.’ PI Mot. at 10.) And, given the application deadline, all Iraqi applicants had been waiting over 3.5 years. (Id. at 12 n.1.) In addition, Plaintiffs noted that in the SIV reports, Defendants admitted that (1) even if an applicant acted promptly in each of the applicant-controlled steps, the application may pend longer than 9 months in Step 13 alone; and (2) on average, excluding time spent awaiting a COM appeal, applicants spent 2.5 years awaiting adjudication. (Id. at 11–12.) Plaintiffs also noted that the Defendants’ reported numbers likely undercounted the backlog and delays because the reported averages omit waiting times for applicants who are still awaiting adjudication. (Id. at 12.)

         Following expedited discovery, Plaintiffs supplemented the record with additional data regarding the time applicants await adjudication:

• At least 7, 700 applications have been pending for longer than the 9-month benchmark referenced in the statute. (ECF No. 68 (“Pls.’ PI Supp.”) at 4.) Of those 7, 700 applicants, over 5, 300 have waited an average of 2.5–5 years for COM approval, and over 2, 300 have waited an average of three years after receiving COM approval.[5] (ECF No. 68-12 (“Onken Decl.”) at ¶¶ 13, 44.)
• When Defendants produced the data, “over 7, 000 applicants had been pending only in their current step for longer than nine months (not including time spent awaiting government action in previous steps).” (Pls.’ PI Supp. at 11 n.10 (emphasis in original) (citing Onken Decl. At ¶¶ 13, 28, 33, 40).)
• Over 80% of the Afghan applications that have been designated as complete have been pending over 9 months, awaiting a decision at the COM approval stage. (Onken Decl. At ¶ 13.)
• The Iraqi class members have waited over 5 years for an initial decision on their COM application. (Id.)
• There are over 6, 300 applicants who have already waited at least 9 months for a decision on their COM appeal. (Id. at ¶ 20.) This figure represents 94% of all individuals awaiting a COM appeal decision. (Id.) The average wait for Afghan applicants is 2 years and 8 months; for Iraqi applicants, the average wait is 3 years and 8 months. (Id.) Historically, COM appeals are successful 50% of the time. (See generally ECF No. 34-6 (“Afghan SIV Joint Reports Jan. 2016 – Apr. 2018”) and ECF No. 34-7 (“Iraqi SIV Joint Reports Jan. 2016 – Apr. 2018”).)
• On average, after obtaining COM approval, Afghan and Iraqi applicants spend more than 9 months awaiting final adjudication.[6] (Onken Decl. at ¶ 44.) Ninety-eight percent of applicants who have completed an interview have been waiting over 9 months for a final adjudication. (Id.) Those who received a final adjudication waited on average 1 year and 4 months. (Id.)

         Plaintiffs also identified several potential problems with Defendants’ method of tracking and reporting SIV application processing times:

• Defendants’ recorded application completion date is unreliable for two reasons. First, an application that was complete upon receipt would not be marked as complete until the date it was reviewed. (ECF No. 68-8 (“Ockerman Dep. II”) at 237:19–238:3.) Second, the application completion date can be modified after an application is marked as complete. (ECF No. 68-10 (“May 2019 Carilli Email”) at 1.)
• The time spent awaiting a COM appeal decision is unreliable in some instances because an appeal that was complete upon receipt would not be marked as complete until the date it was reviewed. (Ockerman Dep. II at 239:13–240:11.)
• The periodic SIV reports exclude time spent awaiting the adjudication of a COM appeal. (Pls.’ PI Supp. at 11.)
• Defendants’ average wait calculation results in an undercount for at least the following reasons:
o At step 2, instead of capturing the time it takes for the National Visa Center to review an application for completion, Defendants’ figures reflect the time it takes to respond to any communication from an applicant. (Ockerman Dep. II at 277:16–278:15.)
o At step 4, the COM review stage, regardless of how many applications are actually reviewed, Defendants select 40 to 50 applications from which to calculate the average wait times, instead of including all applicants. (Id. at 279:24–282:20.) In so doing, they exclude time spent seeking information from third parties such as employers. (Id. at 281:12–282:11.)
o At step 7, the I-360 review stage, Defendants exclude applicants who undergo additional background checks from the figures reported in the periodic SIV reports. (ECF No. 68-5 (“Afuh Dep. II”) at 189:2–20.)
o At step 11, when calculating the interview wait times, instead of capturing the actual date of an interview, Defendants capture the date the interview was scheduled. (Ockerman Dep. II at 288:22–289:12.) Interviews are scheduled 6 weeks to 3 months in advance. ...

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