..
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NINE IRAQI ALLIES UNDER
SERIOUS THREAT BECAUSE OF
THEIR FAITHFUL SERVICE TO
THE UNITED STATES,
Civil Action No. 15-300(GK)
Plaintiffs,
v.
HON. JOHN F. KERRY, et al.
Defendants,
MEMORANDUM OPINION
CONTENTS
I . BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. The Special Immigrant Visa Programs ........................... 4
B. Plaintiffs' Circumstances .................................... 10
II. STANDARD OF REVIEW ........................................... 18
III . ANALYSIS .......... ·. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0
A. Plaintiffs' Motion for Leave to File Supplemental Declaration 20
B. Counts 3-6: Failure to Adjudicate Plaintiffs' Applications ... 22
1. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2. The Doctrine of Consular Nonreviewability ...................... 28
3. Judicially Manageable Standards to Enforce a Non-discretionary
Duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4. The APA and the Mandamus Act .................................... 59
C. Counts 1 & 2: Failure to Protect ............................. 61
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Plaintiffs in this case are Iraqi and Afghan citizens who
incurred great risks to themselves and their families through their
i service to the United States during the military operations in
·I
I
Iraq and Afghanistan known as Operation Iraqi Freedom and Operation
Enduring Freedom. In order to avoid ongoing threats to their
personal safety, Plaintiffs hope to immigrate to the United States
pursuant to Iraqi and Afghan Special Immigrant Visa programs that
Congress authorized to provide refuge for Iraqis and Afghans who
face or have faced serious threats because of their past faithful
service to the United States. See Refugee Crisis in Iraq Act of
2007 ("RCIA"), 8 U.S.C. § 1157 note at §§ 1241-49; Afghan Allies
Protection Act of 2009 ("AAPA"), 8 U.S.C. § 1101 note at §§ 601-
02. 1 Because of the ongoing risk of reprisal they face, Plaintiffs
have been granted leave to proceed by pseudonym in this action. 2
See Order Granting Motion to Proceed by Pseudonym [Dkt. No. 2].
Plaintiffs contend that Defendants, Secretary of State John
F. Kerry, the Department of State, Secretary of Homeland Security
Jeh Charles Johnson, and the Department of Homeland Security
(collectively, "Defendants" or "the Government"), have failed to
1 The RCIA and AAPA are codified as notes to 8 U.S.C. §§ 1157 and
1101, respectively. The Court cites to provisions of these acts
with the relevant act's abbreviation and section number (e.g.,
RCIA § 1241) throughout.
2The relevant pseudonyms and factual distinctions in each of the
Plaintiffs' situations are set forth below.
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make reasonable efforts to protect Plaintiffs or remove them from
Iraq and Afghanistan, and have failed to finally adjudicate
Plaintiffs' Special Immigrant Visa applications within a
reasonable period of time. Amended Compl. ~~ 205-54. Plaintiffs'
Amended Complaint seeks an order compelling these actions pursuant
to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 (1),
and the Mandamus Act, 28 U.S.C. § 1361.
On September 1, 2015, the Government filed its Motion to
Dismiss for Lack of Jurisdiction and Failure to State a Claim
("Gov't's Mot.") [Dkt. No. 36]. It contends that Plaintiffs lack
standing to pursue their claims and have failed to state claims
upon which relief can be granted because, among other reasons,
Plaintiffs have received final refusals of their applications. On
September 25, 2015, Plaintiffs filed their Opposition 1Dkt. No.
43], and on October 2, 2015, the Government filed its Reply [Dkt.
No. 45].
On October 23, 2015, Plaintiffs filed a Motion for Leave to
File a Supplemental Declaration in Support of Plaintiffs'
Opposition to Defendants' Motion to Dismiss [Dkt. No. 48] along
with a copy of the Supplemental Declaration [Dkt. No. 48-1]. On
November 6, 2015, the Government filed its Response [Dkt. No. 49].
On November 9, 2015, Plaintiffs filed their Reply [Dkt. No. 50].
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Upon consideration of the Government's Motion to Dismiss,
Plaintiffs' Opposition, the Government's Reply, Plaintiffs' Motion
for Leave, the Government's Response, Plaintiffs' Reply, and the
entire record herein, and for the reasons stated below, Plaintiffs'
Motion for Leave to File a Supplemental Declaration shall be
granted and the Government's Motion to Dismiss shall be granted
with respect to Counts 1 & 2 and denied with respect to Counts 3-6
(except insofar as those claims relate to Alpha, Bravo, and Delta) .
I . BACKGROUND
A. The Special Immigrant Visa Programs
In recognition of the grave dangers faced by many Iraqis and
Afghans who have assisted United States' military efforts in their
countries, Congress established Iraqi and Afghan Special Immigrant
Visa ("SIV") programs, enacting the Refugee Crisis in Iraq Act of
2007, RCIA §§ 1241-49, and the Afghan Allies Protection Act of
2009, AAPA §§ 601-02. Under the Iraqi SIV program, an SIV may be
granted to an applicant who:
(A) is a citizen or national of Iraq;
(B) was or is employed by or on behalf of the United States
Government in Iraq, on or after March 20, 2003, for not less
than one year;
(C) provided faithful and valuable service to the United
States Government, which is documented in a positive
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recommendation or evaluation . . . from the employee's senior
supervisor or the person currently occupying that position,
or a more senior person, if the employee's senior supervisor
has left the employer or has left Iraq; and
(D) has experienced or is experiencing an ongoing serious
threat as a consequence of the alien's employment by the
United States Government.
RCIA § 1244(b) (1). Spouses and children of individuals who meet
the RCIA's requirements may also receive SIVs. RCIA § 1244(b) (2).
The AAPA includes substantially similar provisions that off er
SIVs to citizens or nationals of Afghanistan employed by or on
behalf of the United States Government (or in certain
circumstances, the International Security Assistance Force) in
Afghanistan, on or after October 7, 2001 for not less than one
year, as well as their spouses and children. AAPA § 602(b) (2) (A)
& (B) .
In both the RCIA and the AAPA, Congress instructed Defendants
to "improve the efficiency by which applications for [SIVs] under
[the Iraqi and Afghan SIV programs] are processed [.] " AAPA
§ 602(b) (4) (A); RCIA § 1242(c) (1). Congress emphasized this point
with the directive that SIV applications shall be "processed so
that all steps under the control of the respective departments
incidental to the issuance of [SIVs] , including required
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screenings and background checks, should be completed not later
than 9 months after the date on which an eligible alien submits
all required materials to complete an application for such visa."
RCIA § 1242(c) (1); AAPA § 602(b) (4) (A) (repeating identical
language) . Mindful that particular cases might present national
security risks not present in the average SIV application, Congress
added that "[n]othing in [the] section [quoted immediately above]
shall be construed to limit the ability of [the Secretary of State
or Secretary of Homeland Security] to take longer than 9 months to
complete those steps incidental to the issuance of such visas in
high-risk cases for which satisfaction of national security
concerns requires additional time.'~ RCIA § 1242 (c) (2); AAPA §
6 O2 (b) ( 4) ( B) (same) .
Both statutes also provide that "[t]he Secretary of State, in
consultation with the heads of other relevant Federal agencies,
shall make a reasonable effort to provide an alien described in
this section who is applying for a special immigrant visa with
protection or the immediate removal from [Iraq or Afghanistan] , if
possible, of such alien if the Secretary determines after
consultation that such alien is in imminent danger." RCIA §
1244(e); AAPA § 602(b) (6) (providing same treatment for protection
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or removal of applicants from Afghanistan with only slight
differences in phrasing) . 3
The RCIA and AAPA require Defendants to issue reports to
Congress regarding the number and status of SIV applications and
improvements to the process for considering SIV applications. See
RCIA § 1248 (a), (f); APAA § (b) (11). Many of these Joint Reports
from the Departments of State and Homeland Security (referred to
throughout as "Joint Reports") , which Plaintiffs summarized in
their Amended Complaint and submitted as exhibits to their
Opposition, provide insight into the process by which Defendants
review Iraqi and Afghan .SIV applications. See Amended Compl. ~~
44-50; Pls.' Exs. L-W [Dkt. Nos. 43-4 through 43-15].
As each of the Joint Reports states, "SIV applications move
through 14 steps, in the following four stages: Chief of Mission
(''C.OM") Application Process; Form I-360 Adjudication; Visa
Interview; and Visa Issuance." E.g., Pls.' Ex. Lat 2. Chief of
Mission Approval (which is granted on the basis of the Chief of
Mission Application and is referred to by the Parties as "COM
3 "The Secretary of State, in consultation with the heads of other
appropriate Federal agencies, shall make a reasonable effort to
provide an alien described in subparagraph (A) , (B), or (C) of
paragraph (2) who is seeking special immigrant status. under this
subsection protection or to immediately remove such alien from
Afghanistan, if possible, if the Secretary determines, after
consultation, that such alien is in imminent danger." AAPA
§ 602 (b) (6).
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Approval") is required by the APAA and RCIA. RCIA § 1244 (b) (4);
AAPA § 602(b) (2) (D). Both statutes state that the relevant Chief
of Mission in Iraq or Afghanistan must "conduct a risk assessment
of the alien and an independent review of records maintained by
the United States Government or hiring organization or entity to
confirm employment and faithful and valuable service to the United
States Government prior to approval of a petition under this
section. fl RCIA § 1244 (b) (4) (A); AAPA § 602 (b) (2) (D) (i).
Once an applicant has received COM Approval, he or she must
enter the second stage of the process by submitting a completed
Form I-360 to the Department of Homeland Security's U.S.
Citizenship and Immigration Services ("USCIS"). ~' Pls.' Ex. R
at 3. If USCIS approves the petition, it is sent to the Department
of State's National Visa Center ("NVC"), and the applicant begins
the Visa Interview Process stage. Id.
The Visa Interview Process stage includes six steps of the 14
steps that make up the SIV application process -- more than any of
the three other stages. Id. In this stage, the applicant must
submit certain documents to the NVC and schedule an interview at
the appropriate U.S. Embassy. Id.
The Joint Reports uniformly describe the last two steps in
the Visa Interview Process stage (which are steps 12 and 13 of the
full 14-step application process) as follows:
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12. Applicant is interviewed by consular officer on the
scheduled appointment date. Administrative
processing is initiated following the interview.
13. The applicant's case undergoes administrative
processing.
~, Pls.' Ex. oat 3. 4
"Upon completion of administrative processing," the
applicant enters the fourth and final stage: Visa Issuance.
Id. This last stage has just one step in which a "visa is
issued if [the] applicant is eligible." Id. However, the Joint
Reports note that by this point, " [i] n some cases, the
passport or medical exam will have expired and require renewal
by the applicant." Id.
4 Although the Joint Reports describe "administrative processing"
as a necessary step in the SIV application process that must follow
the consular interview and precede visa issuance, see e.g., Pls.'
Ex. 0 at 3, State Department regulations require consular officers
to "either issue or refuse" any visa immediately "[w] hen a visa
application has been properly completed and executed before a
consular officer in accordance with the provisions of [the
Immigration and Naturalization Act] and [that Act's] implementing
regulations[.]" 22 C.F.R. § 42.81 (2015).
The United States Foreign Affairs Manual underscores this point
further, stating "[t]here are no exceptions to the rule that once
a visa application has been properly completed and executed before
a consular officer a visa must be either issued or refused.
There is no such thing as an informal refusal or a pending case
once a formal application has been made." 9 FAM 42.81 Nl.
The apparent conflict between these general agency visa
regulations and the SIV-specific Joint Reports' statement that an
"administrative processing" step must precede visa issuance is
discussed below in section III.B.2.a.
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B. Plaintiffs' Circumstances
Plaintiffs' Amended Complaint brings claims on behalf of 12
Plaintiffs -- 8 Iraqi and 4 Afghan citizens -- proceeding under
the following pseudonyms: Ronaldo, Alpha, Bravo, Delta, Foxtrot,
India, Juliet, Alice, Hotel, Lima, Kilo, and Mike. 5
There is significant disagreement between the Parties as to
the circumstances of the 12 Plaintiffs' applications. Some of the
disagreements are over the Parties' construction of the law and
facts at issue in this particular case. For example, Plaintiffs
contend that most of their applications have not been finally
granted or refused, but instead, languish in an intermediate stage
of "administrative processing." See Poellot Deel. [Dkt. No. 43-
1]; Pls.' Exs. C-K [Dkt. Nos. 44-2 through 44-10]. The Government
contends, counterintuitively, that while Plaintiffs' applications
may still be granted following "administrative processing," the
applications have, in fact, been finally refused. See Dybdahl Deel.
5 Plaintiffs' initial Complaint [Dkt. No. 3] included the claims
of additional Plaintiffs under the pseudonyms Frodo, Charlie,
Echo, and Golf. Frodo and Echo have since been issued visas.
Gov't's Mot. at 4-5. Charlie and Golf's applications have been
refused under 8 U.S.C. § 1182 (a) (3) (B), which provides that
individuals who have any of the various enumerated ties to
terrorist activities are ineligible for admission to the United
States. Id. The Parties agree that Frodo, Echo, Charlie, and Golf
are no longer Plaintiffs in this suit. See generally Amended Compl.
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[Dkt. No. 36-1] . 6 Disagreements of this type are flagged in the
paragraphs that follow and are discussed more thoroughly in
subsequent sections of this Memorandum Opinion.
Other disagreements are over the Government's apparent
factual mistakes. Because these disagreements appear to concern
obvious errors, the Court will resolve them in this section. The
Court will discuss groups of Plaintiffs collectively where
appropriate and indicate when it is resolving the Parties'
competing views of the facts, as it must when facts determine the
Court's jurisdiction. Jerome Stevens Pharm., Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) ("the district court
may consider materials outside the pleadings in deciding whether
to grant a motion to dismiss for lack of jurisdiction"); Fed. R.
Civ. P. 12 (h) (3) ("If the court determines at any time that it
6 All except one of the refusals relevant to this Motion the
Government claims to have issued were issued under 8 U.S. C. §
1201(g), which provides:
No visa or other documentation shall be issued to an
alien if (1) it appears to the consular officer, from
statements in the application, or in the papers
submitted therewith, that such alien is ineligible to
receive a visa or such other documentation under section
1182 of this title, or any other provision of law,
(2) the application fails to comply with the provisions
of this chapter, or the regulations issued thereunder,
or ( 3) the consular officer knows or has reason to
believe that such alien is ineligible to receive a visa
or such other documentation under section 1182 of this
title, or any other provision of law .
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lacks subject-matter jurisdiction, the court must dismiss the
action.").
1. Renaldo
Ronalda is an Iraqi citizen who applied for COM Approval on
October 2, 2009, and completed his visa interview on October 13,
2010. Amended Compl. at ~ 62. A Declaration submitted by the
Government (referred to throughout as the Dybdahl Declaration)
states that as of September 1, 2015, Ronalda's application had
been refused under 8 U.S.C. § 120l(g). Dybdahl Deel. ~ 5. According
to the Department of State's Consular Electronic Application
Center Case Status Tracker ("Case Status Tracker"), which allows
applicants to verify the status of their SIV applications, Pls.'
Ex. X [Dkt. No. 43-16], as of September 11, 2015, Ronalda's
application remained in "administrative processing," Pls.' Ex. C.
[Dkt. No. 44-4].
Despite the statement from the Government's own declarant
that Ronalda's visa had been refused, the Government's Motion
inexplicably asserts four times that Ronalda has been issued a
visa, rendering his claims moot. Gov't's Mot. at 1 n. l
(inaccurately citing Dybdahl Deel. for proposition that Ronalda
had been issued a visa); id. at 10 (same); id. at 8 (repeating
claim without citation); id. at 9 (repeating claim without
citation) . In their Opposition, Plaintiffs correct the
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Government's apparent error as to Ronaldo's application status,
noting that Ronaldo has not been issued a visa. Pls.' Opp'n at 3
n.3. The Government's Reply does not acknowledge, correct, or even
address the error.
Apparently attempting to set the record straight, on October
15, 2015, Ronaldo's counsel emailed the Immigrant Visa Unit at the
U.S. Embassy in Baghdad to inquire about the status of Ronaldo's
application. See Ramos-Mrosovsky Deel. [Dkt. No. 48-1]. The
Immigrant Visa Unit responded:
Your client's case remains pending additional
administrative processing, which must be completed
before a final determination can be made on his Special
Immigrant Visa (SIV) application. As soon as this
administrative processing stage is finalized, we will
immediately contact you with further details. No further
action is required from your client at this time.
Supp. Deel. Ex. A [Dkt. No. 48-2] On October 23, 2015, Plaintiffs
submitted a Motion for Leave to File this e-mail and an
accompanying declaration on the docket. On November 6, 2015, the
Government filed its Opposition, which again, never even
acknowledged its previous erroneous statements as to the status of
Ronaldo's visa application. Along with its Opposition, the
Government filed an updated version of the Dybdahl Declaration
("Second Dybdahl Deel."), which, like the previous Dybdahl
Declaration, states that Ronaldo's visa application "remains
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refused under [] 8 U.S. C. § 1201 (g) . " Second Dybdahl Deel. [Dkt.
No. 49-1).
Upon this record, it is clear that Ronaldo has not received
a visa.
2. Alpha
Alpha is an Iraqi citizen who applied for COM Approval on
January 5, 2010, and completed his visa interview on August 25,
2011. Amended Compl. ~ 73. According to the Government's declarant,
Alpha and his family members were issued visas on August 30, 2015.
Dybdahl Dec. at ~ 6. Plaintiffs agree that Alpha has been granted
a visa. Pls.' Opp'n at 3 n.3. However, the Government's Motion to
Dismiss - - filed September 1, 2015 -- states at several points
that Alpha's visa application had been finally refused under 8
U.S.C. § 1201(g). Gov't's Mot. at 4, 8, 9, 10, and 13. Plaintiffs'
Opposition notes the Government's apparent error, Pls.' Opp'n at
3 n.3, but the Government's Reply fails to acknowledge it.
Accordingly, the Court concludes that Alpha has, in fact,
been issued a visa, and Alpha's claims are moot.
3. Bravo
Bravo is an Iraqi citizen who applied for COM Approval on
March 30, 2011, and completed his visa interview on February 13,
2012. Amended Compl. at ~ 81. The Dybdahl Declaration states that
as of September 1, 2015, Bravo's application had been refused under
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8 U.S.C. § 1201(g), and the Government's Motion states that Bravo's
application had received a "final" refusal as of that date. Gov't's
Mot. at 10; Dybdahl Deel. ~ 7. However, on September 4, 2015, Bravo
and his family members were issued visas. Pls.' Opp'n at 3 n.3;
Second Dybdahl Deel. at ~ 7. Thus, Bravo's claims are moot.
4. Delta.·
Del ta is an Iraqi citizen who applied for COM Approval on
February 1, 2011, and completed his visa interview on October 4,
2011. Amended Compl. at ~ 89. The Dybdahl Declaration states that
Delta and his wife were most recently interviewed by a consular
officer on August 27, 2015, but as of September 1, 2015, Delta's
application had been refused under 8 U.S.C. § 1201(g). Dybdahl
Deel. at ~ 9. The Second Dybdahl Declaration, however, states that
on September 30, 2015, a consular officer issued visas to Delta
and his family members. Second Dybdahl Deel. at~ 9. 7 Thus, Delta's
claims are moot.
5. Foxtrot, India, Juliet, and Alice
Foxtrot, India, Juliet, and Alice are Iraqi citizens. Foxtrot
first applied for COM Approval on March 20, 2011, and completed
his visa interview on September 17, 2012. Amended Compl. ~ 100.
7 Plaintiffs' Opposition -- filed September 25, 2015 -- fails to
take account of the change in Delta's status.
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India first applied for COM Approval on February 2, 2010.
Amended Compl. ~ 125. India and his family members were issued
visas in June of 2012. Dybdahl Deel. ~ 14. However, he and his
family were not permitted to board a flight to the United States,
and the visas were subsequently revoked. Id.
Juliet first applied for COM Approval on March 29, 2011, and
completed his visa interview on March 1, 2012. Amended Compl.
~ 139.
Alice was granted COM Approval on July 11, 2010, and completed
her visa interview on November 24, 2010. Amended Compl. ~~ 170-71.
The Dybdahl Declaration states that as of September 1, 2015,
Foxtrot, India, Juliet, and Alice's applications had been refused
under 8 U.S.C. § 1201(g). Dybdahl Deel. at ~~ 11, 14, 15, and 19;
see also Second Dybdahl Deel. at ~~ 11, 14, 15, and 19 (repeating
same as of September 30, 2015). The Government's Motion states
that Foxtrot, India, Juliet, and Alice's applications had received
"final" refusals as of September 1, 2015. Gov't's Mot. at 10.
According to the Case Status Tracker, as of September 24,
2015, Foxtrot, India, Juliet, and Alice's applications remained in
"administrative processing." Pls. ' Exs. F, H, I, and K. The Parties
disagree as to whether the "administrative processing" designation
is consistent with the statement that the applications have been
finally refused.
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6. Hotel and Lima
Hotel and Lima are Afghan citizens. Hotel first applied for
COM Approval on February 10, 2011, and completed his visa interview
on November 19, 2012. Amended Compl. ~ 110. Lima applied for COM
Approval on February 11, 2011, and completed his visa interview on
February 26, 2012. Amended Compl. ~ 34.
The Dybdahl Declaration states that as of September 1, 2015,
Hotel and Lima's applications had been refused under 8 U.S. C.
§ 1201(g). Dybdahl Deel. at ~~ 13 and 17; see also Second Dybdahl
Deel. at ~~ 13 and 17 (repeating same as of September 30, 2015).
The Government's Motion states that Hotel and Lima's
applications had received "final" refusals as of September 1, 2015.
Gov't's Mot. at 10. According to the State Department's Case Status
Tracker, as of September 24, 2015, Hotel and Lima's applications
remained in "administrative processing." Pls.' Exs. G and J. Again,
the Parties disagree as to whether the "administrative processing"
designation is consistent with the statement that the applications
have been finally refused.
7. Kilo
Kilo is an Afghan citizen. He submitted his application for
COM Approval on August 25, 2014, and no action has been taken on
his application since that time. Amended Compl. ~ 33. Lacking COM
Approval, a prerequisite for the second stage of the SIV
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application process, Kilo does not have a complete SIV application
pending before the State Department. See Dybdahl Deel. ~ 16; Second
Dybdahl Deel. ~ 16.
8. Mike
Mike is an Afghan citizen. The Dybdahl Declaration states
that on December 3, 2012, Mike's SIV application was refused under
8 U.S.C. § 1201(g). Dybdahl Deel. at~ 18. The Declaration goes on
to state that on April 23, 2013, Mike's application was further
refused under 8 U.S.C. § 1182(a) (5) (A) ,sand was returned to users
for review and possible revocation of COM Approval. Id. According
to the Case Status Tracker, as of September 24, 2015, Mike's
application was listed as "At NVC [,]" which refers to the State
Department's National Visa Center. Pls.' Ex. D [Dkt. No. 44-3].
II. STANDARD OF REVIEW
Under Fed. R. Civ. P. 12(b) (1), "[t]he plaintiff bears the
burden of invoking the court's subject matter jurisdiction" to
hear his or her claims. Arpaio v. Obama, 797 F.3d 11, 19 (D.C.
Cir. 2015). In deciding whether to grant a motion to dismiss for
lack of jurisdiction, the Court must "accept all of the factual
allegations in [the] [C]omplaint as true[.]" Jerome Stevens
8 It is far from clear what relationship the cited statute has to
Mike's Afghan SIV application, as .8 U.S.C. § 1182(a) (5) (A)
specifies the grounds for denying entry to "alien[s] who seek[] to
enter the United States for the purpose of performing skilled or
unskilled labor[.]"
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Pharm., 402 F.3d at 1253-54 (quoting United States v. Gaubert, 499
U.S. 315, 327 (1991)) (internal quotation marks omitted). However,
" [w] here necessary to resolve a jurisdictional challenge under
Rule 12(b) (1), the court may consider the complaint supplemented
by undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court's resolution of
disputed facts." Banneker Ventures, LLC v. Graham, 798 F.3d 1119,
1129 (D.C. Cir. 2015) (internal citation and quotation marks
omitted).
In order to survive a motion to dismiss under Rule 12(b) (6),
a plaintiff need only plead "enough facts to state a claim to
relief that is plausible on its face" and to "nudge [ ] [his or
her] claims across the line from conceivable to plausible." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a
claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint."
Id. at 563.
Under the Twombly standard, a "court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs' success . [,] must assume all the allegations in
the complaint are true (even if doubtful in fact) [, and]
must give the plaintiff the benefit of all reasonable inferences
derived from the facts alleged." Aktieselskabet AF 21. November
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2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal
quotation marks and citations omitted). A complaint will not
suffice, however, if it "tenders 'naked assertion[s]' devoid of
'further factual enhancement."' Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 557) (alteration in
Iqbal).
III. ANALYSIS
A. Plaintiffs' Motion for Leave to File Supplemental
Declaration
Plaintiffs request leave to file an e-mail from the Immigrant
Visa Unit of the U.S. Embassy in Baghdad, Iraq stating that
Ronaldo's application remains in "administrative processing, which
must be completed before a final determination can be made on his
[SIV] application." Supp. Deel. Ex. A [Dkt. No. 48-2]. Plaintiffs
also ask to file a Declaration explaining the e-mail's origin.
Supp. Deel. [Dkt. No. 48].
The Government argues that Plaintiffs' additions to the
record are redundant and unnecessary. But Plaintiffs' submission
serves to rectify confusion that the Government itself created.
As discussed above, see supra section I.B.1. I the
Government's Motion erroneously states four times that Ronaldo has
been issued a visa. That is clearly incorrect as shown in the
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e-mail, which removes the confusion caused by the Government's
mistake.
The Court finds it very troubling that the Government would
make important factual misstatements, fail to acknowledge them
when they are proven to be incorrect, and then oppose the
submission of evidence which corrects the mistake.
Second, the Government contends that Plaintiffs' submission
is merely an attempt to reiterate arguments from their Opposition.
However, Plaintiffs' submission is not argument but evidence,
which bears on facts critical to establishing the Court's
jurisdiction.
Third, the Government argues that because Plaintiffs'
applications have been finally refused, they should not be able to
supplement the record with evidence to the contrary. Obviously
this argument rests upon the premise that Plaintiffs' applications
have been finally adjudicated, but as the Court explains below,
the record demonstrates that they have not.
Finally, the Government contends that if the Court accepts
Plaintiffs' supplemental filing, "fairness requires that
Defendants also be allowed to provide an updated [D]eclaration to
ensure that the Court has the proper context in which to analyze
the jurisdictional facts as they have developed." Gov't's Opp'n to
Pls.' Mot. at 4.
-21-
In the interest of efficiency and accuracy in establishing
facts relevant to the Court's jurisdiction, the Court will grant
Plaintiffs' Motion and consider both the submitted e-mail as well
as the updated Declaration that the Government has submitted. See
Supp. Deel. Ex. A [Dkt. No. 4 8 -2] ; Second Dybdahl Deel. [Dkt.
No. 49-1]
B. Counts 3-6: Failure to Adjudicate Plaintiffs'
Applications
Counts 3 through 6 of Plaintiffs' Amended Complaint seek an
order directing the Government to adjudicate Plaintiffs' SIV
applications, which, according to Plaintiffs, are awaiting final
action. Counts 3 and 4 arise under the Mandamus Act, 28 U.S.C.
§ 1361, which grants district courts jurisdiction to hear
"action [s] in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to perform a
duty owed to the plaintiff." Id. Counts 5 and 6 are brought under
the APA's grant of authority to "compel agency action unlawfully
withheld or unreasonably delayed[.]" 5 U.S.C. § 706(1).
Plaintiffs contend that the APA requires Defendants to
finally adjudicate their applications within a "reasonable
time[.]" 5 U.S.C. § 555(b) ("With due regard for the convenience
and necessity of the parties or their representatives and within
a reasonable time, each agency shall proceed to conclude a matter
-22-
presented to it."). They further contend that the RCIA and AAPA
establish nine months as the presumptively reasonable period in
which to adjudicate applications. RCIA § 1242 (c) (1) ("all steps
under the control of the respective departments incidental to the
issuance of such visas, including required screenings and
background checks, should be completed not later than 9 months
after the date on which an eligible alien submits all required
materials to complete an application for such visa.") ; AAPA §
602 (4) (A) (same). Because Plaintiffs claim to have waited longer
than nine months for final action on their applications, they ask
that the Court compel such action under the Mandamus Act and/or
the APA.
The Government contends that Plaintiffs lack standing to
bring their claims, that the Court otherwise lacks jurisdiction to
hear Plaintiffs' claims, and that Plaintiffs have failed to state
a claim upon which relief can be granted. Two arguments are central
to these grounds for dismissal: 1) that Plaintiffs' applications
have already been finally denied and are not subject to judicial
review under the doctrine of consular nonreviewability, and 2)
that Plaintiffs have failed to identify a non-discretionary duty
owed to them or judicially manageable standards to assess the
Government's performance of any such duty.
-23-
1. Standing
The Government contends that Plaintiffs lack standing to
litigate Counts 3-6. In order to establish standing, Plaintiffs
must demonstrate (1) that they have suffered an injury in fact
that is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) that the injury is fairly
traceable to the challenged action of the defendant; and (3) that
it is likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992).
As alleged in the Amended Complaint, Plaintiffs' primary
injury is the deprivation of final decisions on their SIV
applications within a reasonable time as required by RCIA
§ 1242 (c) (1), AAPA § 602 (b) (4) (A), and the APA, 5 U.S.C. § 555 (b).
Plaintiffs also allege that the Government's failure to provide
timely adjudication of their applications has exposed them and
their families to serious, imminent threats to their life and
well-being as a result of their service to the United States.
Amended Compl. ~~ 223, 232, 242, 251.
The Government argues that Plaintiffs lack standing to pursue
their claims because their applications have, in fact, been finally
refused. According to the Government, because Plaintiffs have
-24-
received final refusals, they have received everything to which
they are entitled and have suffered no redressable injury.
The Government is incorrect. Because the Government's
contention that Plaintiffs' SIV applications have already been
finally adjudicated is intricately intertwined with its other
jurisdictional argument based on the doctrine of consular
nonreviewability, it can only be unraveled with close scrutiny of
the factual record. Accordingly, the Court addresses this issue in
detail in section III.B.2.a.
For present purposes, however, the Court notes the following
conclusions that are fully explained below: Ronalda, Foxtrot,
India, Juliet, Alice, Hotel, and Lima's SIV applications have not
been finally refused and instead, remain in "administrative
processing," see infra section III.B.2.a.; Mike and Kilo's SIV
applications likewise await additional actions by the Government
and thus, have not been finally refused, see infra section
III.B.2.c.; Alpha, Bravo, and Delta's applications have been
granted, and thus, their claims are moot, see infra section
III.B.2.a. Accordingly, Ronalda, Foxtrot, India, Juliet, Alice,
Hotel, Lima, Mike, and Kilo have suffered an injury in fact: the
failure to receive final decisions on their SIV applications within
a reasonable period.
-25-
Having shown that they have suffered an injury, Plaintiffs
must also show that their alleged injury is caused by the
complained of conduct. The Government raises no argument with
respect to causation. Plaintiffs' alleged injury -- the lack of
final decisions on their SIV applications is quite clearly
caused by Defendants' conduct (i.e., Defendants' failure to
adjudicate the applications). Thus, Plaintiffs have satisfied the
causation prong of the standing inquiry.
Finally, the Government argues that a favorable decision by
this Court would not redress Plaintiffs' injury. The Government
first contends that Plaintiffs are not entitled to redress because
the timelines set out by Congress for the adjudication of SIV
applications are discretionary. This argument, like the
Government's contention that Plaintiffs' applications have been
finally refused, is also deeply interwoven with other
jurisdictional arguments, which will be fully discussed and
rejected below in section III.B.3. In summary, the APA, 5 U.S.C.
§ 555 (b) , creates a duty for the Government to reach a final
decision on Plaintiffs' applications "within a reasonable period,"
and RCIA § 1242(c) (1) and AAPA § 602(4) (A) clarify that that duty
is non-discretionary and must "ordinarily" be completed within
nine months. See infra section III.B.3 ..
-26-
The Government also argues that the Court may not redress
Plaintiffs' injuries because courts are not free to fashion their
own "coercive sanctions" to bring about compliance with statutory
deadlines. See Gov't's Reply at 15 (citing, inter alia, United
States v. James Daniel Good, 510 U.S. 43, 63 (1993)). In that case,
the Supreme Court overturned a Court of Appeals' holding that
failure to comply with certain timing requirements applicable to
asset forfeiture mandated dismissal of the forfeiture action. 510
U.S. at 63. The Supreme Court characterized the lower court's
dismissal of the Government's action as the creation of a "coercive
sanction" on the Government's failure to meet certain statutory
timing directives. Id.
That is not the situation in this case. Plaintiffs do not
seek to construct any sanction for the Government's failure to
process their SIV applications, nor do they seek review of any
substantive decisions by the Government. Instead, Plaintiffs ask
the Court to do just what the APA and the Mandamus Act authorize:
issue an order to adjudicate their applications, whatever the
substantive results may be. See 5 U.S.C. § 706(1); 28 U.S.C.
§ 1361. Such an order would directly redress Plaintiffs' injury
caused by the Government's failure to decide.
In short, Plaintiffs have been injured by the failure to
obtain final decisions on their SIV applications, that injury is
-27-
caused by the Government's failure to act, and the injury would be
redressed by an order from this Court. Accordingly, Plaintiffs
have made the injury, causation, and redressability showings
required to establish standing to pursue their claims. Lujan, 504
U.S. at 560-61.
2. The Doctrine of Consular Nonreviewability
As already discussed, the Government's major argument is that
Plaintiffs' applications have already been finally refused and the
doctrine of consular nonreviewability precludes any further review
of those decisions. This fact, the Government contends, deprives
Plaintiffs of standing to bring their claims, and deprives the
Court of jurisdiction to hear them.
The Government summarizes the core of its argument in its
opening brief:
Because each and every Plaintiff received final action
under 8 U.S.C. § 120l(g), a valid statutory basis of
ineligibility (see generally Ex. 1, Dybdahl Declaration
(listing dates of refusals)), the doctrine of consular
nonreviewability bars Plaintiffs' requests for review of
final decisions of a consular officer. See Saavedra
Bruno [v. Albright, 197 F. 3d 1153, 1156 (D. C. Cir.
1999)]. Thus, Plaintiffs' requests for adjudication of
their applications, and communication of the results,
can only be viewed as confused or disingenuous. See
Compl. at Prayer for Relief ~ 3. Indeed, what the
Plaintiffs truly appear to seek is judicial re-
adjudication -- or review -- of these final decisions.
The doctrine prohibits this.
Gov't's Mot. at 24.
-28-
a. Status of Plaintiffs' Applications
The Government asserts, repeatedly and emphatically, that
"[i]n this case, each and every Plaintiff who made a visa
application appeared for a live interview to execute their visa
applications and received a final refusal under 8 U.S.C. § 1201(g)
and/or other grounds." Gov't's Mot. at 13; id. at 14 ("Each refusal
constituted a final decision as a matter of law."); id. ("like
Plaintiff Alpha, the other Plaintiffs have indeed received final
agency action denials of their visa applications under 8 U.S.C.
§ 1201(g)"); see also Gov' t' s Mot. at 23, 24. Accordingly, the
Government contends that "what the Plaintiffs truly appear to seek
is judicial re-adjudication--or review--of these final decisions."
Gov't's Mot. at 24 (emphasis in original).
However, the facts do not support the Government's repeated
and emphatic assertions.
As discussed in section I.B. above, Plaintiffs Alpna, Bravo,
and Delta have clearly received final decisions granting their SIV
applications. Thus, their claims are moot, and they have no
standing to litigate the case.
Ronaldo, Foxtrot, India, Juliet, Alice, Hotel, and Lima's
situations are not quite as simple. The Government contends that
these seven Plaintiffs have each received final refusals under
8 U.S.C. § 1201(g), which provides in relevant part that consular
-29-
officers shall not issue visas if an applicant is ineligible to
receive a visa or the application fails to comply with applicable
statutory and regulatory provisions. ~, Gov' t' s Reply at 14
("all Plaintiffs who have made SIV applications have already
received final decisions" (emphasis in original)); Dybdahl Deel.
at ~~ 5, 11, 13, 14, 15, 17, 19.
Plaintiffs, on the other hand, contend that their
applications have not been refused, and instead, languish in an
intermediate and amorphous stage of "administrative processing."
See Pls.' Exs. E-K (screen shots of State Department's Case Status
Tracker showing these seven Plaintiffs' application status as
"administrative processing," as of September 24, 2015).
In support of their contention that their applications have
not received a final decision, Plaintiffs put forth a significant
body of evidence. 9 First and foremost, the Government's own Case
Status Tracker states that Plaintiffs' applications remained in
"administrative processing" as of September 24, 2015. Pls.'
Exs. E-K.
9 Again, while Courts do not ordinarily make factual findings at
the motion-to-dismiss stage, Aktieselskabet, 525 F.3d at 17, the
Court must do so here because the status of Plaintiffs'
applications determines the Court's jurisdiction to entertain
their claims. See Saavedra Bruno, 197 F.3d at 1162; Jerome Stevens
Pharm., 402 F.3d at 1253-54 (holding that courts may look beyond
pleadings in the complaint to ascertain their own jurisdiction) .
-30-
The Government responds that "administrative processing" is
not distinct from final refusal. Gov't's Mot. at 13-15. In the
Government's view, when an SIV applicant leaves a consular
interview without a visa in hand, his or her application has been
denied. Id. at 13. In support of its position, the Government
points to regulations and State Department guidance documents
indicating that consular officers must grant or deny a visa
application immediately once the application is complete. 22 C.F.R
§ 42.Sl(a). ("When a visa application has been properly completed
and executed before a consular officer . . the consular officer
must either issue or refuse the visa •
11
) • The State
Department's Foreign Affairs Manual ("FAM") adds, "There is no
such thing as an informal refusal or a pending case once a formal
application has been made." 9 FAM 42.81 Nl.
Thus, according to the Government, because all visas are
either issued or denied immediately, any further processing of a
visa application is best viewed as a "reconsideration" of the
application's denial, rather than an additional step in the 14-step
process. See Gov't's Mot. at 15; Gov't's Reply at 7 ("It is to the
benefit of the visa applicant that, even after a final [§ 120l(g)]
refusal, a consular officer may continue to consider a case (i.e.,
to engage in further administrative processing) to potentially
further adjudicate the visa application. But a consular officer's
-31-
discretionary decision to allow for further administrative
processing after a [§ 1201(g)] refusal does not create any new
legal duty, and does not give an applicant any basis to sue to
expedite that post-refusal processing.").
However, additional evidence presented by Plaintiffs
demonstrates that the Government's characterization of the visa
decision process conflicts with its own actual practices and
statements.
The dozen Joint Department of State / Department of Homeland
Security Reports to Congress ("Joint Reports") that Plaintiffs
have filed make clear that "administrative processing" is not a
discretionary opportunity for reconsideration. Pls.' Exs. L-W.
Rather, each and every one of the Joint Reports submitted makes
clear that "administrative processing" is a mandatory step in the
SIV application process. "Administrative processing" is not an
opportunity for reconsideration of a decision but is a pre-
requisite to reaching the decision itself--a crucial distinction.
Indeed, the Joint Reports describe "administrative
processing" as step 13 of the 14 required steps in the SIV process.
~, Pls.' Ex. Lat 3-4 [Dkt. No. 43-4]. The Joint Reports state
that at step 12, which is the interview stage, the "[a]pplicant is
interviewed by [a] consular officer on the scheduled appointment
date [,]" and "[a] dministrative processing is initiated following
-32-
the interview." ~, id. At step 13 " [t] he applicant's case
undergoes administrative processing [.]" Id. At step 14, "[u] pon
completion of administrative processing, [the] applicant is
instructed to obtain a medical exam. The visa is issued if [the]
applicant is eligible." E.g. , id. Nowhere do the Joint Reports
indicate that a final decision is made before "administrative
processing" begins.
The Joint Reports go on to note that "[e]ven if an applicant
has acted promptly in each of the applicant-controlled steps that
precede step 13 of the SIV application process
administrative processing] , applications may be pending longer
than nine months for completion of administrative processing."
E.g., id. at 4-5. 10 The section concludes, "Although step 13 is
lengthy, process enhancements have resulted in improved
efficiency." ~, id. at 5. The other Joint Reports contain
substantially the same statements. See Pls.' Exs. L-W. 11
10According to the Joint Report for SIVs issued between April 1,
2014 and March 31, 2015, administrative processing took an
average of 153 business days. Pls.' Ex.Lat 4.
11 The Joint Reports' invocation of the nine month time line is
itself an indication that the Government understands
"administrative processing" to constitute a pre-cursor to a final
decision. RCIA § 1242 (c) (2) and AAPA § 602 (b) (4) (A) state that
"all steps under the control of the respective departments
incidental to the issuance of such visas, . , . should be completed
not later than 9 months after the date on which an eligible alien
submits all required materials to complete an application for such
visa."
-33-
Defendants' formal representations to Congress in their Joint
Reports are simply incompatible with the notion that SIV applicants
in general, and Plaintiffs in particular, have already received
final decisions on their applications by the time they reach the
"administrative processing" stage.
Documents that the Government gives to SIV applicants
following their consular interviews also belie the Government's
contention that such "denials" are final or even any kind of
decision at all. For example, following their consular interviews,
Plaintiffs who applied through the Baghdad Embassy received a
notice stating "[w]e have refused your visa under section 22l(g)
of the Immigration and National Act [8 U.S.C. § 1201(g)] until: We
complete administrative processing. We will contact you when it is
finished." Iraqi Refusal Notice, Pls.' Ex. BB (emphasis added) .
This artfully worded letter appears calculated to obtain the
benefits of consular reviewability and to comply with internal
If administrative processing constituted reconsideration of SIV
applications, as the Government claims, then time spent on such
reconsideration would not count toward the nine-month target for
completing "all steps . . . incidental to the issuance of [SIVs.]"
Id. However, the Government does count delays due to
"administrative processing" toward the nine-month timeline, see
Pls.' Exs. L-W, which further indicates that "administrative
processing" is part of the visa review process and not mere
reconsideration of applications, which have already been denied.
-34-
State Department regulations 1 2 by indicating that a decision has
been made. But the text that follows the word "until" makes clear
that no final decision on the application will occur until
"administrative processing" is complete . 1 3
The notice provided to applicants at the Kabul Embassy
similarly advises applicants that their application "needs further
administrative processing." See Afghan Refusal Notice, Pls.
Ex. CC. It states, "We cannot give you a definitive date when the
processing will be completed, and it will likely take several
months or more." Id. Again presumably attempting to trigger the
doctrine of consular nonreviewability, the Afghan Refusal Notice
also states that the Notice "constitutes a denial of a visa" under
8 U.S.C. § 1201(g). Id.
However, if "administrative processing" is a necessary step
in the SIV application process, the failure to receive a visa
before "administrative processing" is completed is not a denial at
all. In fact, if an applicant were somehow to receive a visa in
12 See 22 C.F.R § 42.Sl(a); 9 FAM 42.81 Nl.
13 Another district court has held that a similarly equivocal
statement did not constitute a denial. Assad v. Holder, Civ. No.
2:13-00117, 2013 WL 5935631, at *l & *4 (D.N.J. Nov. 1, 2013)
("[L]etter [received by visa applicant that] stated that the case
required 'Administrative Review' and that 'new information, when
available, will be communicated to you in writing'" was held to
"clearly indicate that the decision on [plaintiff's] visa [was]
still pending and not final.").
-35-
comply with internal State Department regulations 1 2 by indicating
that a decision has been made. But the text that follows the word
"until" makes clear that no final decision on the application will
occur until "administrative processing" is complete . 13
The notice provided to applicants at the Kabul Embassy
similarly advises applicants that their application "needs further
administrative processing." See Afghan Refusal Notice, Pls.
Ex. CC. It states, "We cannot give you a definitive date when the
processing will be completed, and it will likely take several
months or more." Id. Again presumably attempting to trigger the
doctrine of consular nonreviewability, the Afghan Refusal Notice
also states that the Notice "constitutes a denial of a visa" under
8 U.S.C. § 120l(g). Id.
However, if "administrative processing" is a necessary step
in the SIV application process, the failure to receive a visa
before "administrative processing" is completed is not a denial at
all. In fact, if an applicant were somehow to receive a visa in
l2 See 22 C.F.R § 42·.s1(a) i 9 FAM 42.81 Nl.
13 Another district court has held that a similarly equivocal
statement did not constitute a denial. Assad v. Holder, Civ. No.
2 : 13 - OO11 7 , 2 O13 WL 5 9 3 5 6 3 l , at * 1 & * 4 (D . N . J . Nov . l , 2 O13 )
("[L]etter [received by visa applicant that] stated that the case
required 'Administrative Review' and that 'new information, when
available, will be communicated to you in writing'" was held to
"clearly indicate that the decision on [plaintiff's] visa [was]
still pending and not final.").
-35-
advance of administrative processing, that step would be
premature. The Government has never argued that "administrative
processing" could be completed immediately after the interview.
Indeed the Joint Reports show that "administrative processing"
usually requires many months to finish. See e.g., Pls.' Ex. S (as
of July 15, 2014, the average Afghan SIV application spent 145
business days in "administrative processing").
The U.S. Embassy in Baghdad's website also demonstrates that
"administrative processing" does not mean "refused." A page on
that website informs SIV applicants of the meaning of what they
will see upon logging into the State Department's Consular
Electronic Application Center:
You will see one of the following status indicators
appear:
Administrative Your case is currently
Processing
undergoing additional administrative processing. This
processing can take several months to be completed~ You
do not need to contact us. We will contact you with
further instructions once this processing stage is
finalized.
Issued - Your visa has been issued and we are preparing
the return of your passport to you using the prepaid
courier airway bill you provided to us during your
interview. You will receive an email from us with your
shipment tracking number as soon as your visa has been
posted in the mail.
Refused - Your visa application has been refused. Please
see the letter you received during your interview, or by
mail, for further details.
-36-
Pls.' Ex. X at 2 (available at http://iraq.usembassy.gov/
administrative-processing.html) . 14
Although Bravo' s claims are now moot, the facts of his
application are part of the record before the Court, and they shed
additional light on the SIV approval process. The Dybdahl
Declaration asserts that Bravo and his family appeared for a
consular interview on August 31, 2015, but that as of September 1,
2015, his "case remains refused under INA§ 221(g), 8 U.S.C. §
1201 (g) . " Dybdahl Deel. at ~ 7 . 15
The Second Dybdahl Declaration states that just three days
later, on September 4, 2015, a consular officer issued visas to
14 See also Pls.' Opp'n at 16 (citing other portions of the Baghdad
Embassy's website stating, among other things, "We initially
refuse most immigrant visa applications under [8 U.S.C. § 1201(g)].
There is usually no need to worry: it is almost always a temporary
refusal." (emphasis in original) (quoting Pls.' Ex. AA (available
at http://iraq.usembassy.gov/221g/what-does-a-22lg-refusal-
mean.html)).
This statement from the Embassy website is not consistent with
the Foreign Affairs Manual's statement that "[t]here is no such
thing as an informal refusal or a pending case once a formal
application has been made." 9 FAM 42. 81 Nl. An application that
received only "temporary refusal" would seem to remain pending.
15It bears repeating that the Dybdahl Declaration also states that
the applications of seven other Plaintiffs had been "refused"
despite the Case Status Tracker's indication that they remained in
"administrative processing." Dybdahl Deel. ~~ 5, 11, 13, 14, 15,
17, 19; Pls. Exs. E-K. The record does not include a Case Status
Tracker entry for Bravo during this three-day period, but from
Plaintiffs' allegations and the facts in the record, it would seem
that between August 31 and September 4, 2015, Bravo's application
was in "administrative processing."
-37-
Bravo and his family members. Second Dybdahl Deel. ~ 7. There is
no evidence in the record indicating that Bravo supplemented his
application in any way between August 31, 2015 and September 4,
2015.
In the Government's view, when Bravo left the Baghdad
Consulate on August 31, 2015, his visa had been finally refused
under 8 U.S.C. § 1201(g). In light of the Government's Joint
Reports, this characterization strains credulity. Gov't's Mot.
at 9. Plainly, Bravo's application--like those currently
undergoing "administrative processing"--remained under
consideration on August 31, 2015, and the Government only reached
a final decision on September 4, 2015.
Finally, if there was any doubt that "administrative
processing" precedes--and does not equate to--a final
determination, Plaintiffs' supplemental filing settles the
question. In response to an e-mail written "to follow up with [the
U.S. Embassy in Baghdad] on the status of [Ronaldo' s]
application[,]" the Immigrant Visa Unit of the Embassy replied:
Your client's case remains pending additional
administrative processing, which must be completed
before a final determination can be made on his Special
Immigrant Visa (SIV) application. As soon as this
administrative processing stage is finalized, we will
immediately contact you with further details. No further
action is required from your client at this time.
-38-
Pls.' Supp. Deel. Ex. A (emphasis added). This e-mail shows, as
does the abundance of other evidence Plaintiffs provide, that any
Plaintiff with an application in "administrative processing" has
not yet received a final decision. 1 6
The Government argues that because 8 U.S.C. § 1201(g) places
the burden of demonstrating visa eligibility on the applicants, a
consular officer's failure to grant a visa following an interview
means that Plaintiffs have not met their burden. The Government's
argument, however, does not mesh with the SIV adjudication process
it has described to Congress. Pursuant to the 14 -step process
described above, .no SIV applicant could possibly receive a visa
16In a curious passage of its opening brief, the Government asserts
that "[i] n an effort to manufacture ·jurisdiction, Plaintiffs
equivocate, selectively substituting the term 'administrative
processing' for adjudication where it suits them." Gov't's Mot. at
13. But, Plaintiffs have not created the term "administrative
processing." The Government has told Plaintiffs in e-mails,
letters, and the State Department's own Case Status Tracker that
their applications remain in "administrative processing."
Plaintiffs take "administrative processing" to mean what the
Government says it means in its reports to Congress and on its
Embassy website: one of 14 steps that must be completed before an
SIV may be issued.
Indeed, it is the Government that equivocates: Sometimes
"administrative processing" means "administrative processing";
other times it means finally adjudicated. The Government admits as
much elsewhere in its briefing. See Gov't's Reply at 10 ("It is
understandable as a practical matter that the State Department's
references to 'administrative processing' in various contexts may
create confusion. But the use of the term 'administrative
processing' following a visa refusal does not, in any way, nullify
the refusal or render it non-final as a matter of law.").
-39-
before "administrative processing," and "administrative
processing" necessarily follows the consular interview. Thus, the
fact that an SIV applicant does not receive a visa after his or
her interview says nothing about whether he or she has met his or
her burden.
Despite the convincing evidence Plaintiffs cite to show that
Defendants have not finally adjudicated their SIV applications,
whi