United States District Court, District of Columbia
E.B. et al., Plaintiff,
U.S. DEPARTMENT OF STATE et al., Defendants.
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
lawsuit, three foreigners and two of their U.S.-based
relatives allege that the State Department issued a rule
unlawfully by not following the ordinary notice-and-comment
rulemaking procedures. The rule requires that any individual
who seeks to participate in the annual diversity visa lottery
must possess a valid passport from her home country when she
registers for it. Plaintiffs have moved for a preliminary
injunction, arguing that they will be irreparably harmed
because the regulation effectively precludes them from
participating in this year's lottery. Defendants argue
that Plaintiffs lack standing and are otherwise not entitled
to such an injunction. For the reasons explained bel, the
Court holds that Plaintiffs are substantially likely to have
standing but have failed to show that they are likely to
suffer irreparable harm absent an injunction. The Court will
therefore deny their motion.
Diversity Visa Program
Immigration and Nationality Act of 1990 (INA) established the
Diversity Visa Program. Pub. L. No. 101-649, § 131, 104
Stat. 4978, 4997 et seq. (1990) (codified at 8
U.S.C. § 1153(c)). The law allows the State Department
to issue 50, 000 diversity visas annually to individuals from
countries and regions that have historically sent fewer
immigrants to this country. See id.; 8 U.S.C. §
1151(e). Potential immigrants are selected “strictly in
a random order established by the Secretary of State.”
8 U.S.C. § 1153(e)(2). The process begins with the
diversity visa lottery (the “lottery”). About 14
million individuals from qualifying countries register for
the lottery annually. 84 Fed. Reg. 25, 989 (codified at 22
C.F.R. § 42.33). The State Department then selects
“through a randomized computer drawing” a certain
number of registrants who “may then apply for a
diversity visa or, if present in the United States, apply for
adjustment of status.” Id. The State
Department selects more than 50, 000 individuals because some
of them “will not qualify for visas or not pursue their
cases to visa issuance.” U.S. Department of State,
Instructions for the 2021 Diversity Immigrant Visa
(last visited Nov. 4, 2019).
the precise number of selectees fluctuates each year, the
odds of any individual registrant being selected are long.
For example, for Fiscal Year 2018, 115, 968 individuals were
selected from 14, 692, 258 registrants. U.S. Department of
State, DV 2018 - Selected Entrants,
(last visited Nov. 4, 2019). Thus, any registrant had about a
0.8% chance of being selected. This year, registration opened
on October 2, 2019 and will close on November 5, 2019. U.S.
Department of State, Instructions for the 2021 Diversity
Immigrant Visa Program (DV-2021).
The Passport Rule
Secretary of State may issue regulations governing the
information that lottery registrants must provide to the
State Department. 8 U.S.C. § 1154(a)(1)(I)(iii). On June
5, 2019, the State Department promulgated the Passport Rule,
which requires that individuals who seek to participate in
the lottery must possess a valid passport when they register.
84 Fed. Reg. 25, 989 (the “Passport Rule” or the
“rule”); see also 22 C.F.R. §
42.33(b)(viii). Before enactment of the rule, a lottery
participant had to possess a passport only if she was
selected-i.e., if she won the lottery-and she then
sought to apply for a diversity visa. See Passport
Rule; 22 C.F.R. § 42.64(b). As a result, the rule
effectively imposes this requirement at any earlier point in
the process. Passport Rule; see also 22 C.F.R.
§ 42.33(b)(viii). According to the State Department, the
rule will help prevent fraud. See Passport Rule.
State Department promulgated the Passport Rule as an interim
final rule, and so it became effective upon publication.
Id. Although the State Department informed the
public that it would accept comments, it invoked the foreign
affairs exception of the Administrative Procedure Act (APA),
5 U.S.C. § 553(a), and dispensed with the standard
notice-and-comment procedures, see Passport
The Instant Case
September 2019, Plaintiffs sued the State Department and
Michael Pompeo in his official capacity as Secretary of
State, alleging that their promulgation of the Passport Rule
without prior notice-and-comment rulemaking was unlawful
under the APA. ECF No. 1 (“Compl.”). Plaintiffs
allege that the APA's foreign affairs exception does not
apply to the Passport Rule. Id. ¶ 66. As a
result, they contend that Defendants unlawfully denied them
and others the opportunity to participate in the rulemaking
through the APA's notice and comment procedures.
Id. ¶¶ 64-65. Plaintiffs fall into two
categories. Plaintiffs E.B., K.K., and Mehatemeselassie
Ketsela Desta (collectively “Applicant
Plaintiffs”) are individuals who registered for the
lottery previously and wish to do so again. Id.
¶¶ 49, 54, 59. However, they allege, the Passport
Rule will preclude their participation this year because they
do not have a valid passport, nor can they obtain one in
time. Id. ¶¶ 50, 55, 60. Plaintiffs W.B.
and A.K. (collectively “Family Plaintiffs”) are
U.S. residents who wish to reunite with their siblings,
Applicant Plaintiffs E.B. and K.K., respectively.
Id. ¶¶ 15-16.
moved for a preliminary injunction barring enforcement of the
Passport Rule. ECF No. 3; see also ECF No. 3-2
(“PI Mem.”). They argue that obtaining a passport
in time to participate in this year's lottery is both
cost and time prohibitive. PI Mem. at 2, 8-9. Thus, without
preliminary relief, “Applicant Plaintiffs will suffer
irreparable harm by losing the opportunity to apply for a
diversity visa in this year's lottery.”
Id. at 26. In opposition, Defendants principally
argue that because Applicant Plaintiffs can rely on friends
or family to help defray the cost of acquiring a passport if
they win the lottery, any barrier to acquiring a passport
earlier “is purely self-imposed.” ECF No. 16
(“Opp'n”) at 15. As a result,
“Plaintiffs have not alleged a harm that is traceable
to the State Department, ” id. at 16, and the
Court should dismiss the complaint in its entirety for lack
of standing, id. at 12. Plaintiffs filed a reply,
ECF No. 17, and the Court held a hearing on Plaintiffs'
motion on October 25, 2019.
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Nat. Res.
Def. Council, Inc.,555 U.S. 7, 22 (2008). “A
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.”
Id. at 20. The last two factors merge where
plaintiffs seek preliminary relief against the government.
Nken v. Holder,556 U.S. 418, 435 (2009). Before
Winter, these factors were “evaluated on a
‘sliding scale'” such that “an
unusually strong showing on one of the factors” can
make up for a weaker showing on another. Davis v. Pension
Ben. Guar. Corp.,571 F.3d 1288, 1291 (D.C. Cir. 2009)
(quoting Davenport v. Int'l Bhd. of Teamsters,166 F.3d 356, 361 (D.C. Cir. 1999)). However, the D.C.
Circuit “has suggested, without deciding, that
Winter should be read to abandon the sliding-scale
analysis in favor of a ‘more demanding burden'
requiring plaintiffs to independently demonstrate both a
likelihood of success on the merits and irreparable
harm.” Standing Rock Sioux Tribe v. U.S. Army Corps
of Engineers,205 F.Supp.3d 4, 26 (D.D.C. 2016) (quoting
Sherley v. Sebelius,644 F.3d 388, 392 (D.C. Cir.
2011)). Either way, “it is clear that failure to show a
likelihood of irreparable harm remains, standing alone,