E.B. v. U.S. Department of State

          MEMORANDUM OPINION

          TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.

         In this 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.

         I. Background

         A. Diversity Visa Program

         The 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.^[1] 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 Program (DV-2021), https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2021-Instructions-Translations/DV-2021-%20Instructions-English.pdf (last visited Nov. 4, 2019).

         Although 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, https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-program-entry/dv-2018-selected-entrants.html (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).

         B. The Passport Rule

         The 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.

         The 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 Rule.

         C. The Instant Case

         In late 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.

         Plaintiffs 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.^[2]

         II. Legal Standard

         A 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, ...