KINSLEY et al v. BLINKEN et al
MEMORANDUM OPINION re 24 Order on Motion for Summary Judgment and Motion to Dismiss. So ORDERED by Judge James E. Boasberg on 10/05/2021. (lcjeb2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PHILIP KINSLEY, et al.,
Civil Action No. 21-962 (JEB)
ANTONY J. BLINKEN, Secretary of the
U.S. Department of State, et al.,
Among the disruptions wrought by the COVID-19 pandemic have been halts and delays
in the U.S. visa-processing system. Here, a large group of noncitizens, U.S.-citizen petitioners,
associations, and corporations bring suit to challenge the cessation of visa processing in specified
countries. They allege as unlawful Defendant State Department’s interpretation of several
Presidential Proclamations to prevent U.S. consulates and embassies in those countries from
adjudicating visas. In now seeking dismissal or summary judgment, the Government argues that
the Court is barred from considering Plaintiffs’ claims for a range of jurisdictional reasons, and
that, even if addressed, their claims are deficient. While the Court concurs with Defendants that
some Plaintiffs lack standing or have claims that are now moot, it also concludes that, as to the
nine remaining Plaintiffs, their claims are justiciable, and State acted improperly in suspending
visa issuance based on the Proclamations. These Plaintiffs thus achieve summary judgment.
A. Factual Background
In response to the ongoing pandemic, both Presidents Trump and Biden issued a series of
COVID-19 Regional Proclamations that restrict the entry into the United States of immigrants
and nonimmigrants who have been in certain countries for a 14-day period preceding any attempt
to enter. See ECF No. 11 (Second Am. Compl.), ¶¶ 68–75; see also Proclamation No. 9984, 85
Fed. Reg. 6,709 (Jan. 31, 2020) (Republic of China); Proclamation No. 9992, 85 Fed. Reg.
12,855 (Feb. 29, 2020) (Iran); Proclamation No. 10143, 86 Fed. Reg. 7,467 (Jan. 25, 2021)
(United Kingdom, Ireland, Brazil, South Africa, and the Schengen Area — i.e., 26 European
countries that generally allow cross-border travel); Proclamation No. 10199, 86 Fed. Reg. 24,297
(Apr. 30, 2021) (India – Nonimmigrants Only). These proclamations were issued pursuant to 8
U.S.C. § 1182(f), under which
[w]henever the President finds that the entry of any aliens or of any
class of aliens into the United States would be detrimental to the
interests of the United States, he may . . . suspend the entry of all
aliens or any class of aliens as immigrants or nonimmigrants, or
impose on the entry of aliens any restrictions he may deem to be
As of April 2021, the State Department had interpreted “[t]hese proclamations, with
certain exceptions, [to] place restrictions on visa issuance and entry into the United States for
individuals physically present in China, Iran, Brazil, UK, Ireland, South Africa, and the 26
countries in the Schengen area.” SAC, ¶ 77 (quoting U.S. Department of State – Bureau of
Consular Affairs, Visa Services Operating Status Update (Apr. 6, 2021), https://bit.ly/3gquvNH
(Visa Services Update)). As a result, visa applications for individuals from those countries —
and India as of April of this year — have not been adjudicated. Id., ¶ 17. Department officials
have noted, however, that the Proclamations are “based on presence, not citizenship. So if there
[are] capacities in other posts, the situation [of an individual who was a citizen of a barred
country going to a non-barred country for two or more weeks before entry] is possible.” Id., ¶ 86
(quoting U.S. Dep’t of State, Briefing with Consular Affairs Acting Deputy Assistant Secretary
for Visa Services Julie M. Stufft on the Current Status of Immigrant Visa Processing (Mar. 1,
2021), https://bit.ly/2W5jyKA (Stufft Briefing)).
The Secretary of State revised the visa procedures for individuals in Proclamation
countries on April 8, 2021, to include a National Interest Exception (NIE) for noncitizens who
are seeking an immigrant visa or a K-1 nonimmigrant visa, a class of visas used for fiancé(e)s of
U.S. citizens to come to the United States. See U.S. Dep’t of State, Updates to National Interest
Exceptions for Regional COVID Proclamations (Apr. 8, 2021), https://bit.ly/3kjTljo (Updates to
NIE). Immigrant visas, it should be noted, are given to eligible applicants who plan to reside
permanently in the United States, while nonimmigrant visas are for individuals who plan to live
in the U.S. temporarily for a variety of reasons. Under the NIE, individuals seeking visas in the
aforementioned categories are exempt from the COVID-19 Regional Proclamations, thus leaving
the Proclamations applicable only to noncitizens who are seeking a nonimmigrant, non-K-1 visa.
See No. 16-1 (Def. MTD/MSJ) at 7. Other nonimmigrants can also apply for an NIE if their
travel is for certain purposes. Id. at 6 (describing exemptions in Proclamations).
In addition to the restrictions imposed by the Proclamations, delays have unsurprisingly
emerged in the U.S. visa-processing system worldwide. The system for routine visa processing
was entirely suspended from March 2020 to late July 2020. Id. at 2. In late July, U.S. embassies
and consulates entered “a phased resumption of visa services” under which they could “resume
routine visa services as local conditions and resources allow.” Id. (quoting U.S. Department of
State – Bureau of Consular Affairs, Suspension of Routine Visa Services (July 22, 2020),
https://bit.ly/3DgTe01). Recognizing varying conditions around the world, State indicated that
additional services would be provided “[a]s local conditions improve[,] . . . culminating
eventually in a complete resumption of routine visa services.” Updates to NIE. Services,
however, have still not resumed in full, and the Department has adopted a tiered system of
processing to address the large number of visa applications that remain outstanding. See Def.
MTD/MSJ at 4–5 (describing the different tiers).
Plaintiffs here are over 180 noncitizens seeking immigrant or nonimmigrant visas, their
U.S. citizen petitioners, as well as U.S. corporations and two U.S. associations. Id. at 1. The
noncitizen Plaintiffs have applied for different types of visas, including family-based immigrant
visas, employment-based immigrant visas, employment-based nonimmigrant visas, and Knonimmigrant visas for fiancé(e)s of U.S. citizens. See SAC, ¶¶ 27, 29, 32, 36. Since this case
was filed, the number of Plaintiffs who have not had their visas adjudicated has diminished.
Many Plaintiffs, moreover, are now subject to the NIE for immigrant and nonimmigrant K-1
visas, including the 143 comprised of U.S. citizens and their foreign-national fiancé(e)s. Id.,
¶ 29. The parties filed a joint status report on August 30, 2021, indicating that nine Plaintiffs
remained who do not fall under the NIE, have not yet had their visas adjudicated, and remain
eligible for the visa sought. See ECF. No. 23 (Joint Status Report). The claims of these nine are
the only ones still live.
B. Procedural Background
Plaintiffs originally sued the State Department and Secretary Antony Blinken in April
2021, alleging that the Department’s non-adjudication of visas for individuals from Proclamation
countries was unlawful given that 8 U.S.C. § 1182(f), upon which the Government relied, only
governs who is eligible to enter the country, and the issuance of visas is distinct from eligibility
for entry. They allege that the “no-visa” policy for individuals from Proclamation countries
violates the Administrative Procedure Act as the “unlawful with[olding of] agency action,” 5
U.S.C. § 706(1), as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law,” id. at § 706(2)(A), and as “agency action . . . in excess of . . . authority,” id. at
§ 706(2)(C). See SAC, ¶¶ 93–102. Plaintiffs also contend that the policy is ultra vires. Id.,
¶¶ 103–07. They have twice amended their Complaint to reflect evolving circumstances, with
their most recent pleading filed in late May. See ECF No. 1 (Complaint); ECF No. 7 (Amended
Complaint); SAC (filed May 21, 2021). In June, Plaintiffs moved for a preliminary injunction
or, in the alternative, for summary judgment. See ECF No. 15 (Pl. PI/MSJ). Defendants in turn
moved to dismiss or, in the alternative, for summary judgment.
The parties have sought three forms of relief in this case: a preliminary injunction,
dismissal, and summary judgment. Since the Court will ultimately decide this case on the latter
two grounds, those are the only standards it lays out.
In evaluating Defendants’ argument that the case should be dismissed for lack of subjectmatter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the Court must “treat the
complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences
that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979))
(internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253
(D.C. Cir. 2005). This standard governs the Court’s considerations of a motion to dismiss under
both Rules 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (“in passing
on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or
for failure to state a cause of action, the allegations of the complaint should be construed
favorably to the pleader”); Walker v. Jones, 733 F.2d 923, 925–26 (D.C. Cir. 1984) (same). The
Court need not accept as true, however, “a legal conclusion couched as a factual allegation,” nor
an inference unsupported by the facts set forth in the Complaint. Trudeau v. FTC, 456 F.3d 178,
193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (internal quotation
To survive a motion to dismiss under Rule 12(b)(1), a plaintiff bears the burden of
proving that the Court has subject-matter jurisdiction to hear its claims. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20,
24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is acting within the
scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185
F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual allegations in the
complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a
12(b)(6) motion for failure to state a claim.” Id. at 13–14 (quoting 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)).
Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider
materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of
jurisdiction.” Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, LLC v.
EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005) (“given the present posture of this case – a dismissal
under Rule 12(b)(1) on ripeness grounds – the court may consider materials outside the
Federal Rule of Civil Procedure 56(a) requires the Court, upon a party’s motion, to “grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” A fact is material if it would change
the outcome of the litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006), and a dispute is genuine if the evidence
is such that a reasonable jury could return a verdict for the non-moving party. Scott v. Harris,
550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at 895. In the event of conflicting evidence on a
material issue, the Court is to construe the conflicting evidence in the light most favorable to the
non-moving party. Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
“Factual assertions in the moving party’s affidavits or declarations may be accepted as true
unless the opposing party submits its own affidavits[,] . . . declarations[,] or documentary
evidence to the contrary.” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87
(D.D.C. 2009) (citing Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)).
In a case involving a challenge to a final agency action under the APA, the standards for
general summary judgment set forth in Rule 56(c) do not apply because of the limited role of a
court in reviewing the administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76,
89–90 (D.D.C. 2006) (citing Nat’l Wilderness Inst. v. United States Army Corps of Eng’rs, 2005
WL 691775, at *7 (D.D.C. 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C.
1995), amended on other grounds, 967 F. Supp. 6 (D.D.C. 1997)). “[T]he function of the district
court is to determine whether or not as a matter of law the evidence in the administrative record
permitted the agency to make the decision it did.” Mainella, 459 F. Supp. 2d at 90 (internal
citations omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of
law, whether the agency action is supported by the record and otherwise consistent with the APA
standard of review. See Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited in
Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff’d, 348 F.3d 1060 (D.C. Cir. 2003).
Defendants preliminarily contend that this case should be dismissed on jurisdictional
grounds, both because Plaintiffs lack standing and because the Secretary’s actions in this sphere
are not subject to judicial review. On the merits, they argue that the Immigration and Nationality
Act bars the adjudication of visas for individuals from Proclamation countries, and that, in any
event, such a policy is reasonable, lawful, and entitled to deference. The Court looks at each
A. Jurisdictional Issues
The Government asserts that the entirety of Plaintiffs’ case is barred from review and that
specific groups of Plaintiffs lack standing or have claims that are now moot. See Def. MTD/MSJ
Defendants believe that “Plaintiffs cannot challenge the actions of the Secretary of State
to implement a proclamation issued by the President under 8 U.S.C. § 1182(f).” Id. at 20. They
argue that the Supreme Court has “long recognized the power to expel or exclude aliens as a
fundamental sovereign attribute exercised by the Government’s political departments largely
immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotation
marks and citations omitted); see also Def. MTD/MSJ at 20. In particular, they suggest that the
“principles underlying [the doctrine of consular non-reviewability] similarly preclude review of
the Secretary’s decision to implement a proclamation issued under 8 U.S.C. § 1182(f) because
the President suspended entry, and thus determined that a class of noncitizens were ineligible for
a visa.” Def. MTD/MSJ at 21.
This is familiar territory. This Court and others in this district have already rejected
similar arguments rooted in the doctrine of consular non-reviewability because that doctrine only
applies once a decision has been reached on a specific application. See Milligan v. Pompeo, 502
F. Supp. 3d 302, 317 (D.D.C. 2020) (“[T]he doctrine [of consular non-reviewability] however, is
not triggered until a consular officer has made a decision with respect to a particular visa
application.”) (internal citation and quotation marks omitted); see also Tate v. Pompeo, 513 F.
Supp. 3d 132, 142 (D.D.C. 2021), dismissed sub nom. Tate v. Blinken, No. 21-5068, 2021 WL
3713559 (D.C. Cir. July 22, 2021) (“The D.C. Circuit has held that the consular nonreviewability does not apply where plaintiffs ‘do not challenge a particular determination in a
particular case of matters which Congress has left to executive discretion’ but instead improperly
promulgate rules in violation of statute.”) (internal citation omitted); Gomez v. Trump, 485 F.
Supp. 3d 145, 176 (D.D.C. 2020), amended in part, 486 F. Supp. 3d 445 (D.D.C. 2020),
and amended in part sub nom. Gomez v. Biden, No. 20-1419, 2021 WL 1037866 (D.D.C. Feb.
19, 2021) (“District courts in this jurisdiction consistently have held that when the suit
challenges inaction, as opposed to a decision taken within the consul’s discretion, there is
jurisdiction.”) (internal citations and quotation marks omitted).
Given this repeated determination, there is no reason that the “principles underlying [the
consular non-reviewability] doctrine” would preclude the Court from reviewing implementation
of policy relating to the Proclamations. Nor does Plaintiffs’ challenge risk “diminish[ing] the
President’s ability to exercise his broad authority under 8 U.S.C. § 1182(f) to exclude noncitizens.” Def. MTD/MSJ at 22. Even a successful suit would affect only whether visa
applications must be adjudicated, not whether visas should actually be issued or individuals
allowed to enter once they have received a visa. The Court thus finds the Department’s no-visa
Defendants next argue that because consular officers have now adjudicated visas for 74
noncitizen Plaintiffs, those claims and the associated claims of their U.S.-citizen sponsors are
moot. See Def. MTD/MSJ at 23. Plaintiffs do not contest this, see ECF No. 18 (Pl. Opp.) at 15,
and selected Plaintiffs have already filed a Stipulation of Dismissal. See ECF No. 19. The Court
accordingly will dismiss the claims of any Plaintiffs who have had their visas adjudicated along
with related claims from their U.S.-citizen sponsors.
3. Standing: Plaintiffs Seeking Immigrant or K-1 Nonimmigrant Visas
Defendants also seek to dismiss for lack of standing “noncitizen Plaintiffs, who are
seeking an immigrant visa or K[-1] nonimmigrant visa,” as well as their U.S.-citizen petitioners
and corporation Plaintiffs who are sponsoring immigrant visas. See Def. MTD/MSJ at 27. They
point out that because “the Secretary issued an NIE for all immigrant and K nonimmigrant visa
applicants,” there is no other relief this Court can provide. Id. Defendants frame this issue as a
lack of standing rather than one of mootness because Plaintiffs filed their Second Amended
Complaint in May 2021, six weeks after the Secretary issued the NIE. Plaintiffs’ predicament,
the Department argues, was thus resolved by the time of refiling, leaving them without a
redressable injury. See ECF No. 20 (Def. Reply) at 6; see also Def. MTD/MSJ at 27. Plaintiffs
counter that “Defendants’ argument confuses standing with mootness,” Pl. Opp. at 10 (internal
citation marks and quotations omitted), and that their claims should be analyzed under the latter
framework, which places a greater burden on Defendants to show that claims have been mooted
under the doctrine of voluntary cessation. See True the Vote, Inc. v. Internal Revenue Serv., 831
F.3d 551, 561 (D.C. Cir. 2016) (“[T]he defendant has the burden of establishing that these
criteria have been met [in assessing mootness by voluntary cessation], and that is a ‘heavy
Ultimately, it makes little difference under which framework this case is analyzed, as
either way the Court will dismiss this subset of claims. As a general matter, Defendants are
correct that “when a plaintiff files a complaint in federal court and then voluntarily amends the
complaint, courts look to the amended complaint to determine jurisdiction.” Rockwell Int’l
Corp. v. United States, 549 U.S. 457, 473–74 (2007). Since the NIE was issued before Plaintiffs
filed their Second Amended Complaint, their injury should be analyzed “by the state of the world
as of the date of the Amended Complaint,” and those facts leave this group of Plaintiffs out of
luck since the NIE had already lifted the Proclamations for them. See G&E Real Est., Inc. v.
Avison Young-Washington, D.C., LLC, 168 F. Supp. 3d 147, 159 (D.D.C. 2016). Even if
Plaintiffs’ preferred mootness analysis were used, however, this Court recently found identical
claims to be moot in Milligan v. Blinken, No. 20-2631, 2021 WL 3931880, at *5–6 (D.D.C.
Sept. 2, 2021) (concluding under doctrine of voluntary cessation that there was no reasonable
expectation plaintiffs would be again subjected to Proclamations, that NIE had “eradicated the
effects of the alleged violation caused by the Proclamations,” and that claims were not capable of
repetition yet evading review). As a result of the NIE, the eight corporation Plaintiffs petitioning
for employment-based immigrant visas also now lack standing. See ECF No. 15-7 (Affidavits of
eight EB IVP Plaintiffs Companies) at 4–11. The Court will thus dismiss the claims of Plaintiffs
seeking immigrant or K-1 nonimmigrant visas, their associated U.S.-citizen petitioners, and
corporations sponsoring immigrant visas.
4. Standing: Corporation and Association Plaintiffs
In addition to the corporations petitioning for immigrant visas, Plaintiffs also include
corporations and associations with members seeking nonimmigrant visas. Among them are the
Association of Cultural Exchange Programs (ACEO) and the Alliance for International
Exchange (AIE). ACEO “is an association of U.S. employers which has joined to ensure timely
processing of visa applications for members of its association.” SAC, ¶ 40. Its members
include U.S. employers who seek “J-1 exchange visas to fill temporary positions” such as at “K12 schools, summer camps, universities, seasonal tourist destinations, and others.” Id. The lack
of processing of nonimmigrant visas has resulted in a “loss of revenue and risk of closure” for at
least some of these employers. Id. The Complaint does not contain any allegations related to
AIE and what types of visas its members seek, although the attached affidavit specifies that they
seek J-1 visas for assorted temporary positions. See ECF No. 15-7 at 3 (Affidavit of Ilir Zherka).
Defendants rejoin that the Plaintiff corporations and associations lack standing because they fail
to identify individual applicants or members who have been affected by the Proclamations and
that their alleged injuries are thus not particularized. See Def. MTD/MSJ at 25–27.
Turning first to the association Plaintiffs, “[a]n organization has associational standing to
bring suit on its members’ behalf when: (1) at least one of its members would have standing to
sue in his or her own right; (2) the interests it seeks to protect are germane to the organization’s
purpose; and (3) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Sierra Club v. Fed. Energy Reg. Comm’n, 827 F.3d 59, 65
(D.C. Cir. 2016) (internal citations and quotation marks omitted). To satisfy the initial prong, a
member must meet the traditional elements of standing — namely, that he has (1) “suffered an
‘injury-in-fact’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical’; (2) the injury is ‘fairly traceable to the challenged action’; and (3) it is ‘likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.’” Id.
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81
(2000)). Plaintiffs bear the burden of establishing these elements. See Lujan, 504 U.S. at 561.
To establish that an individual member has standing, “it is not enough to aver that unidentified
members have been injured. . . . Rather, the petitioner must specifically identify members who
have suffered the requisite harm.” Chamber of Comm. v. EPA, 642 F.3d 192, 199–200 (D.C.
Cir. 2011) (internal quotation marks and citations omitted); see also Summers v. Earth Island
Inst., 555 U.S. 488, 498 (2009) (organizational standing requires “plaintiff-organizations to make
specific allegations establishing that at least one identified member had suffered or would suffer
This is a threshold that AIE and ACEO have failed to clear. Am. Chemistry Council v.
Dep’t of Transp., 468 F.3d 810, 815, 820 (D.C. Cir. 2006) (“an organization bringing a claim
based on associational standing must show that at least one specifically-identified member has
suffered an injury-in-fact”). Nothing in the Second Amended Complaint, the Opposition, the
affidavit from AIE’s director, or the Joint Status Report identifies a specific member of AIE
affected by the Proclamations. See Pl. Opp. at 4; see also Joint Status Report at 2; Zherka Aff.
(all stating AIE’s members have suffered harm, but none identifying a member organization or
its injury). Indeed, Plaintiffs nowhere identify who AIE’s specific members even are.
ACEO makes more robust allegations about injuries that its member employers face from
the non-issuance of J-1 visas, but it also fails to name any “specifically  identified member”
who has suffered an injury-in-fact. See ECF No. 15-10 at 3–7 (Affidavit of Jeff Laband)
(identifying types of harm suffered by sponsors but no specific members); see also Pl. Opp. at 3–
4; SAC, ¶ 40; Joint Status Report at 2. Since both associations have not shown “that at least one
member . . . has standing to pursue this challenge,” Am. Library Ass’n. v. FCC, 406 F.3d 689,
696 (D.C. Cir. 2005), the Court concludes that they lack associational standing; it thus need not
address standing’s other elements.
Considering next the corporations, Plaintiffs’ briefing could be clearer on “which
corporations may be sponsoring a noncitizen for an employment-based immigrant visa or an
employment-based nonimmigrant visa,” Def. MTD/MSJ at 25, but the affidavits do indicate that
there are two corporations, International Teacher Exchange Services and Life Adventures,
seeking employment-based nonimmigrant visas. See ECF No. 15-10 (EB NIV Plaintiffs
Companies) at 6–7. In any event, neither corporation identifies an injury-in-fact that is “concrete
and particularized.” International Teacher Exchange Services, which seeks J-1 visas for
teachers, states in its affidavit only that the lack of visa adjudication will cause it to face
“[s]ubstantial revenue loss, will impact US jobs, [and] lost opportunity for all.” Id. at 6
(Affidavit of Rory McNicholas). Similarly, Life Adventures in its affidavit avers that its partner
employers may go out of business, but as to its own injury it says only that “[t]his has been
extremely frustrating and has caused and will continue to cause our organization to suffer a great
deal of harm.” Id. at 7 (Affidavit of Don Moody). Most of these alleged injuries, such as an
“impact” on U.S. jobs and “lost opportunit[ies],” are generalized grievances about how visa
delays affect the economy and are insufficient to establish an injury-in-fact. See, e.g., Warth v.
Seldin, 422 U.S. 490, 499 (1975) (normally no injury “[w]hen the asserted harm is a ‘generalized
grievance’ shared in substantially equal measure by all or a large class of citizens”). To the
extent that International Teacher Exchange Services alleges a more concrete injury in the form of
“substantial revenue loss,” its affidavit does not provide sufficient information for the Court to
determine the basis for this injury and whether it is fairly traceable to the non-adjudication of
visas. As a result, the associations and corporations seeking nonimmigrant visas will be
5. Standing: Plaintiffs Seeking Employment-Based Nonimmigrant Visas
Finally, the Department asks that the remaining noncitizen Plaintiffs seeking
employment-based nonimmigrant visas also be dismissed for lack of standing. Based on the
Joint Status Report, there are nine such individuals. See Joint Status Report at 5–6. Under
Defendants’ theory, these Plaintiffs lack standing because the COVID-19 pandemic, not the
implementation of the Proclamations, is the true source of their injury. See Def. MTD/MSJ at
29. On the contrary, Plaintiffs have alleged an injury flowing from the Proclamations
themselves, as the Department “has refused to process their nonimmigrant visas,” to “schedule
interviews or adjudicate their visa applications,” or “to issue the visas” as a result of the
Proclamations. See SAC, ¶ 37. The resource constraints and backlogs faced by U.S. embassies
and consulates have undoubtedly delayed the processing of visas, but Plaintiffs have still
suffered an injury from the fact that currently “consular officials are categorically precluded
from processing Plaintiffs’” visa applications unless they fall under an exemption, regardless of
the capacity and reopening status of local consulates and embassies. Young v. Trump, 506 F.
Supp. 3d 921, 936 (N.D. Cal. 2020), appeal dismissed sub nom. Young v. Biden, No. 21-15233,
2021 WL 3507648 (9th Cir. Mar. 16, 2021). This injury is “fairly traceable” to the
Proclamations, which have made it far more difficult for Plaintiffs to have their visas
adjudicated. See Pl. Opp. at 2–3 (arguing that injury is “fairly traceable” and discussing
procedural barriers from Proclamations). This injury is also “likely to be redressed by a
favorable judicial decision” of this Court. Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
The remaining Plaintiffs seeking nonimmigrant visas have thus established standing.
Before leaving the morass of jurisdictional claims behind, one final note should be taken
about the status of the nine remaining nonimmigrant Plaintiffs. They are at different stages of
the application process — some have not had interviews, and some have visas pending issuance.
Three of these Plaintiffs, for example, have received 221(g) letters, a form of interim refusal of a
visa while the Proclamations remain in effect. See Joint Status Report at 5–6; see also ECF No.
15-9 at 8 (Affidavit of Carlos Leal) (describing receipt of 221(g) notice indicating visa refused
“until such time as Presidential Proclamation 9993 is no longer in effect”); id. at 10 (Affidavit of
Alexander McWhirter) (same); id. at 21 (Affidavit of Riccardo Sciarretta) (same). The claims of
these Plaintiffs are not barred by the doctrine of consular nonreviewability. See Nine Iraqi Allies
Under Serious Threat Because of Their Faithful Serv. to the United States v. Kerry, 168
F. Supp. 3d 268, 291–92 (D.D.C. 2016) (visa applicants who received 221(g) letters based on
ongoing “administrative processing” “have not been finally refused, [so] the doctrine of consular
nonreviewability does not bar their claims”). One Plaintiff, Francois Bare, conversely, has had
an NIE denied. See Joint Status Report at 5. As a decision has already been made, the Court can
take no further action. Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021)
(“Consular nonreviewability shields a consular official’s decision to issue or withhold a visa
from judicial review, at least unless Congress says otherwise.”). There are thus eight Plaintiffs
with live claims, which the Court now considers.
This case raises many issues previously addressed by district courts in finding against the
Government on the suspension of visa adjudications for individuals from Proclamation countries.
See Milligan, 502 F. Supp. 3d 302; Gomez, 485 F. Supp. 3d 145; Tate, 513 F. Supp. 3d 132;
Young, 506 F. Supp. 3d 921. Those courts (including this one) each found that a no-visa policy
under the Proclamations likely violated the APA and enjoined the Government from relying on
the Presidential Proclamations to suspend all visa adjudications for certain plaintiffs from
Proclamation countries. Milligan, 502 F. Supp. 3d at 322. Plaintiffs rely on those holdings to
argue that “a § 1182(f) suspension of entry does not authorize the Department of State . . . to
institute a ‘no-visa’ policy for the affected, eligible individuals prevented from entry into the
United States,” SAC, ¶ 6, and that the analysis in those opinions should be dispositive.
Defendants, meanwhile, offer three bases for why the no-visa policy should be upheld: 1) under
the Immigration and Naturalization Act, consular officers must refuse to issue visas to
noncitizens where entry is suspended under a proclamation issued pursuant to § 1182(f); 2) their
interpretation of 8 U.S.C. § 1182(f) is reasonable and lawful; and 3) deference should be given to
the Department’s longstanding interpretation of § 1182(f). This Court groups these arguments
into two buckets of analysis but need not dally long in addressing them as the claims essentially
repackage positions previously raised and rejected. The Court ultimately concludes that the
Department cannot rely on § 1182(f) to maintain a policy of not adjudicating nonimmigrant visas
from Proclamation countries.
1. Consular Officers’ Duty
Defendants lay out a litany of reasons why consular officers must refuse to adjudicate
visas for noncitizens whose entry is suspended. See Def. MTD/MSJ at 31–36. They start by
arguing that individuals barred from entry under § 1182(f) cannot be issued visas under 8 U.S.C.
§ 1201(g), which states that “[n]o visa . . . shall be issued to an alien if . . . it appears to the
consular officer . . . that such alien is ineligible to receive a visa or such other documentation
under section 1182.” 8 U.S.C. § 1201(g); see Def. MTD/MSJ at 31–34. As Judge Amit Mehta
of this district recently explained, however, this argument “ignores ‘the basic distinction between
admissibility determinations’ i.e., entry determinations, and ‘visa issuance that runs throughout
the INA.’” Gomez, 485 F. Supp. 3d at 191 (quoting Trump v. Hawaii, 138 S. Ct. 2392, 2414 &
n.3 (2018)). “Subsection 1201(g) precludes the issuance of visas only as to persons who are
‘ineligible to receive a visa’ under Section 1182, not to persons who are only ineligible to
enter under that provision.” Id. (quoting 8 U.S.C. § 1201(g)). And it is a different section of the
INA, 8 U.S.C. § 1182(a), not § 1182(f), that lays out the categories of individuals who are
ineligible to receive visas and to be admitted to the United States. Id. at 191–92; see also 8
U.S.C. § 1182(a) (laying out grounds for which noncitizens are “ineligible to receive visas and
ineligible to be admitted to the United States,” including those based on health, crime, security,
and other areas). Several other courts have similarly interpreted 8 U.S.C. § 1201(g), including
this one. See Milligan, 502 F. Supp. 3d at 315 (“The Court finds Judge Mehta’s interpretation
persuasive [as to the § 1201(g) argument] and adopts it here.”); Young, 506 F. Supp. 3d at 945
(rejecting argument that § 1201(g) requires denial of visa issuance to individuals barred from
entry under § 1182(f)). Defendants’ § 1201(g) position again gains no traction.
State next contends that allowing visas to be issued “to individuals who are not permitted
to attempt to enter the United States under section 1185(a)(1)” of the INA would result in
confusion for border officials and erode U.S. border protections. See Def. MTD/MSJ at 33–34;
see also id. at 39–40. Issuing visas to these individuals would admittedly result in an unusual
system in which a visa recipient from a Proclamation country could not enter the United States
without having been physically present in a non-Proclamation country for more than two weeks
prior to entry. This in turn might place more strain on border-protection officers to determine
whether the entering individual had in fact stayed the requisite period in the non-Proclamation
country. Yet, such a system would be consistent with Acting Deputy Assistant Secretary Stufft’s
acknowledgment that an otherwise-barred individual could conceivably enter after a stay
elsewhere. See Stufft Briefing (describing how individual could wait for processing in third
Nor is it an insurmountable obstacle that 8 U.S.C. § 1185(a)(1) makes it “unlawful . . . for
any alien to . . . enter or attempt to . . . enter the United States except under [the rules and
limitations] . . . as the President may prescribe.” Def. MTD/MSJ at 33 (arguing that entry of
Proclamation plaintiffs inconsistent with § 1185(a)(1)). As Chief Judge Beryl Howell explained
in Tate, “A visa recipient subject to one of the Presidential Proclamations would violate §
1185(a) by immediately attempting entry but would not be subject to the entry restriction if she
(1) quarantined in a non-affected country before attempting entry or (2) waited until the
Proclamation expired before attempting entry.” 513 F. Supp. 3d at 145. This Court agrees with
this logic and concludes that, given the possibility of an applicant’s first quarantining in a nonProclamation country, adjudication of Plaintiffs’ visa requests is not inconsistent with the entry
The Government also points to 8 U.S.C. § 1101, which defines “immigrant visas” and
“nonimmigrant visas” as visas issued to “eligible” immigrants or nonimmigrants. See Def.
MTD/MSJ at 34; see also 8 U.S.C. § 1101(a)(16), (a)(26). Under the Department’s reading,
“[t]hose provisions are most sensibly read to refer to a noncitizen who is eligible to lawfully
enter the United States, because a noncitizen who is not permitted to enter is not eligible to
immigrate.” Def. MSJ/MTD at 34. This reading once again conflates the distinction between
individuals eligible to receive a visa and individuals eligible to enter the country. See Gomez,
485 F. Supp. 3d at 191 (distinguishing between those “ineligible to receive a visa” and those
“who are only ineligible to enter under that provision”).
State also suggests that consular officers who issue a visa to someone not eligible to enter
under § 1182(f) may violate the statutory requirement to review the Automated Visa Lookout
system before issuing a visa because individuals subject to the Proclamations will be “included
in the . . . system” as excludable aliens. See Def. MTD/MSJ at 36; see also Immigration Act of
1990, Pub. L. No. 101-649, § 601(c) (8 U.S.C. § 1182 note) (requiring development of
“protocols and guidelines for updating lookout books and the automated visa lookout system . . .
for the screening of aliens applying for visas for admission”). Once again, Defendants do not
adequately explain how “entry” under § 1182(f) relates to excludability under the Automated
Visa Lookout system or how Proclamation Plaintiffs would be incorporated into the system. See
Tate, 513 F. Supp. 3d at 145–46 (rejecting for these reasons argument based on Automated Visa
Defendants’ final attempt to square their interpretation with another section of the INA
similarly runs aground. They compare the entry restrictions in § 1182(f) to those in 8 U.S.C.
§ 1182e and § 1182f, which classify requirements not to issue visas to certain individuals
engaged in specified medical practices under the heading “denial of entry.” This asks the Court
to read too much into a statutory heading, especially when § 1182e notably states both that “the
Secretary of State may not issue any visa to, and the Attorney General may not admit to the
United States” specified individuals — explicitly distinguishing between visa issuance and
admission or entry. See 8 U.S.C. § 1182e(a) (emphasis added). At the end of the day, consular
officers are not duty bound to deny visas to these Plaintiffs.
2. Deference to Department’s Longstanding Interpretation of § 1182(f)
Moving on from the text of the INA, Defendants argue that their “interpretation of 8
U.S.C § 1182(f) is both reasonable and lawful.” Def. MTD/MSJ at 37. Relatedly, they suggest
that their interpretation is entitled to deference since it has “the power to persuade” under
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (persuasiveness of agency’s interpretation
depends on “the thoroughness evident in its consideration, the validity of its reasoning, [and] its
consistency with earlier and later pronouncements”); see also Def. MTD/MSJ at 40–41; Mount
Royal Joint Venture v. Kempthorne, 477 F.3d 745, 754 (D.C. Cir. 2007) (“[I]f the agency
enunciates its interpretation through informal action that lacks the force of law, we accept the
agency’s interpretation only if it is persuasive.”).
In particular, State relies on the fact that since 1985, § 1182(f) has been used “as a basis
for visa refusal,” and “historically, proclamations issued under section 1182(f) have delegated
authority exclusively to the Secretary of State to implement the restrictions.” Def. MTD/MSJ at
37. It also points to its Foreign Affairs Manual as evidence of this longstanding practice and
explains that the Manual’s relevant section “advises consular officers that the basis on which
applicants must be denied visas [is] established by law and lists section 1182(f) as such a ground
of refusal.” Id. at 38. The Manual also lists several Presidential Proclamations as specific
examples that require refusals of visas. Once again, this Court and others have spurned such
arguments because, “[g]iven the clarity of section 1182(f)[,] . . . this Court finds no basis to defer
to State’s practice, however well established it may be.” Milligan, 502 F. Supp. 3d at 315; see
also Tate, 513 F. Supp. 3d at 145–46 (rejecting reliance on State’s historical practice because
“[n]o matter how firmly entrenched[,] . . . past practice cannot provide a justification for agency
action clearly contrary to statute”).
Defendants also contend that “prior to the Court’s order in Gomez, courts have
consistently accepted the application of restrictions imposed under section 1182(f) as a basis for
visa denial” — for example, in cases challenging visa denials under Presidential Proclamation
9645, better known as the Travel Ban. See Def. MTD/MSJ at 39. Those cases, however, often
arose after visas had already been denied, and they dealt with the interplay between § 1182(f)
and a waiver system under Presidential Proclamation 9645. The specific question of delaying
visa adjudications because of an entry ban did not arise. More importantly, there is no reason
that the Court should rely on earlier D.D.C. cases dealing with a different Presidential
Proclamation while ignoring more recent decisions from multiple courts here and elsewhere
addressing precisely the Proclamations at issue.
Defendants largely recycle these and other earlier arguments to support their claim that
they are entitled to Skidmore deference. Id. at 41–42 (pointing to FAM, Automated Visa
Lookout system, and relationship between § 1201(g) and § 1182(f) as evidence of
persuasiveness). State unquestionably has “specialized experience” and “broader . . .
information available” on the visa system than the courts do. See United States v. Mead Corp.,
533 U.S. 218, 234 (2001) (internal citations and quotation marks omitted). This Court, however,
has found “no basis to defer to State’s practice” on this issue given the statute’s clarity, Milligan,
502 F. Supp. 3d at 315, and the consistency of the Department’s pronouncements or other
indicators of persuasiveness do not alter this finding. Given the consensus among district courts
that Defendants have not put forth “any statutory authority that would permit the suspension of
th[e] ordinary process [for adjudicating visas],” Gomez, 485 F. Supp. at 194, there is no reason
to conclude that their interpretation has the power to persuade. See, e.g., Young, 506 F. Supp. 3d
at 945 (“Defendants identify no statutory authority that would authorize consular officers to
cease processing and adjudicating qualifying visas” beyond § 1201(g)).
In sum, Defendants have not shown that the Court should defer to their position on
§ 1182(f). It thus concludes that State’s reliance on this section to refuse to adjudicate visas for
nonimmigrant Plaintiffs in Proclamation countries is not in accordance with the law.
C. Other Relief
In addition to asking this Court to find State’s policy unlawful, Plaintiffs seek other relief,
including “the immediate reissuance of visas” that have been issued but expired because of the
Proclamations, the “immediate issuance of visas to plaintiffs who have been approved,” and the
immediate rescheduling of interviews and extensions of other relevant deadlines so that
Plaintiffs’ visas will not be delayed. See SAC at 43–44. This is a bridge too far. As has
previously been made clear, the Court “takes no position on whether the Defendants must
issue visas to each Plaintiff named in this suit,” Milligan, 502 F. Supp. 3d at 316, nor does it in
any way suggest that Plaintiffs should jump to the front of the line in having their applications
processed. The Court simply holds that the Department cannot rely on the Presidential
Proclamations as a basis to cease visa adjudications for nonimmigrant Plaintiffs from the
Finally, the Court notes that the Biden Administration recently announced that it will ease
pandemic-related travel restrictions on fully vaccinated travelers from Proclamation countries
beginning in “early November.” See David Shepardson & Andrea Shalal, U.S. to relax travel
restrictions for vaccinated foreign air travelers in November, REUTERS (Sept. 21, 2021),
https://reut.rs/3zRNUxV. Although the specifics are not yet clear, this change in policy may
ultimately moot the remaining Plaintiffs’ claims and those of individuals similarly situated.
For the foregoing reasons, the Court: 1) will dismiss as moot the claims of Plaintiffs who
have already had their visas adjudicated; 2) dismiss for lack of standing the claims of Plaintiffs
seeking immigrant and nonimmigrant K-1 visas and associated petitioners and corporations; and
3) dismiss for lack of standing the claims of the association and corporation Plaintiffs petitioning
for nonimmigrant visas. For the relevant remaining Plaintiffs, the Court will grant their Motion
for Summary Judgment and deny Defendants’ Motion to Dismiss and Motion for Summary
Judgment. A contemporaneous Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 5, 2021
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