                                         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,


                                           AMENDED MEMORANDUM OPINION


                                                                CONTENTS

I .          BACKGROUND • . • • . • • • • • • • • • • • • • • • • • • • • • • . • • • • • • • • • • • . • • • • • . • • . • • • 4
  A.         The Special Inunigrant Visa Programs ........................... 4
  B.         Plaintiffs' Circumstances .................................... 10
II .         STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
I I I •      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

service to the United States during the military operations in

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.
                                            -2-
                                                            •.



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].



                                       -3-
                             ..... '                                ..   ····;   ..




        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

                                                   -4-
        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 of fer

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

                                                -5-
                                                                               .... '·
                        .   .   ....                                           ··:·   .


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   §


602 (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




                                                       -6-
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).
                                            -7-
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." 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:

                                              -8-
                                .   .   .~.



:'   ..


                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.

          E.g., 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~, 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.

                                                            -9-
     B.   Plaintiffs' Circumstances

     Plaintiffs' Amended Complaint brings claims on behalf of 12

Plaintiffs -- 8 Iraqi and 4 Afghan citizens -- proceeding under

the following pseudonyms: Renaldo, 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.

                               -10-
                             •                                      •·   ..   '

                                                                     ...·

    [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. §
120l(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 .
                                  -11-
lacks       subject-matter          jurisdiction,              the     court       must    dismiss   the

action.").

                1.        Renaldo

        Ronaldo 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,        Ronaldo' 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,    Ronaldo's

application remained in "administrative processing," Pls.' Ex. C.

[Dkt. No. 44-4].

        Despite the statement from the Government's own declarant

that Ronaldo' s           visa had been refused,                       the Government's Motion

inexplicably asserts four times that Ronaldo has been issued a

visa,       rendering        his     claims            moot.        Gov't's        Mot.     at   1   n.1

(inaccurately citing Dybdahl Deel.                           for proposition that Ronaldo

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

                                                   -12-
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



                                         -13-
                                .~.




refused under []                8 U.S.C.       §   120l(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

                                                     -14-
                        '   ~ .. :·.




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.·

     Delta 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, Del ta' 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.
                               -15-
       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,         2 012.   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.

                                       -16-
                          .   .   .~.   .                                    ....
                                                                            .-
:'.                                                                       . ·;.,:·.




                  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.

      §   120l(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

                                                     -17-
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) , 8 and 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[.]"
                               -18-
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

                                       -19-
                        '·";   ...
                                 •.. ·




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.,      the

Government's Motion erroneously states four times that Ronaldo has

been issued a        visa.                 That is clearly incorrect as shown in the




                                                      -20-
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.   48-2];    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[.]      /1
                  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      th~   doctrine of consular nonreviewabili ty,            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 als9 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:          Ronaldo,      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,             Ronaldo,      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 fash{on 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 Co'urt 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. § 1201(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.                           §   120l(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.

§   120l(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.     §    120l(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.                  E.g.,   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

§   42.81(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            .").       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 [§ 1201(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."

     ~,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 timeline 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 221(g)

of the Immigration and National Act [8 U.S.C.             §    120l(g)J 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 time line, 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-
                       .

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.    §    120l(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.   §   120l(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.ch still remain in "administrative processing," the Government

contends that the Court should treat those applications as finally

denied   as    a     matter    of   law.   Gov't's       Mot.      at 25   ("Plaintiffs'

disagreement with the discretionary decisions of consular officers

does not change the fact that their applications were refused. As

a matter of law, the inquiry ends there."). The Court disagrees.

      The Government contends that because regulations and State

Department guidance documents governing the visa process require

consular      officers    to    "either     issue       or   refuse     the    visa"    when

presented with a         complete     application,           the   Court      should treat

Plaintiffs pending applications as refused.                        Gov' t' s   Mot.    at 11

(quoting 22 C.F.R.        §   42.81); see also 9 FAM 42.81 Nl. However, it

is   clear    that    visa    applications        are    not    always     being      finally

refused in any meaningful sense immediately upon presentation of




                                           -40-
a completed application. 17 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,

simply does not accord with Defendants' practices, as the record

demonstrates.

        The Government also cites 8 U.S.C.        §   120l(g) itself for the

proposition that Plaintiffs have all received final refusals as a

matter of law.     Gov't's Mot.     at 14   ("Each refusal constituted a

final decision as a matter of law. See 8 U.S.C.            §    1201(g) ."). But

§    1201(g) merely contains the (expansive) criteria for refusing an

application; it does not establish when or whether, as a matter of

law, an application has been refused.

        The   Government   next    turns    to   case    law,     arguing   that

"Plaintiffs     fail   to meet    their burden    to    demonstrate    standing

because there is a long line of cases explaining that non-resident

aliens lack standing to challenge the determinations associated

with their visa applications,        which belong to the political and

not judicial branches of government." Gov't's Mot. at 16 (quoting

Van Ravenswaay v. Napolitano, 613 F. Supp. 2d 1, 5 (D.D.C. 2009)).


17 Indeed, at least one other District Court has reached the same
conclusion. See Schutz v. Secretary, Department of State, No. 6:11-
cv-1296-0rl-31, 2012 WL 275521, at *2-4 (M.D. Fla. Jan. 31, 2012)
(holding that 22 C.F.R. § 42.81 did not render application
"refused" when applicant was not issued visa and only explanation
was reference to broad statute stating many grounds for denial) .

                                     -41-
      The Government's argument--and the case it cites--rest upon

the premise that that Plaintiffs seek to challenge elements of a

final decision with which they disagree. Van Ravenswaay,                  613 F.

Supp. 2d at 4 (holding that doctrine of consular nonreviewability

precluded action useeking judicial review regarding the action of

the   consul"    when    the    consul    had    denied     plaintiff's     visa

application) .   But    for    the   reasons    already   stated,   Plaintiffs

applications remain pending and have not been finally denied. Thus,

Van Ravenswaay offers no aid to the Government's case.               Moreover,

Plaintiffs are not challenging the substance of any decisions made

by the Government.

      The   Government   also    makes   much    of   a   passage   in   Justice

Kennedy's concurrence in Kerry v. Din, 135 S.Ct. 2128, 2141 (2015),

in which he states that the Government satisfies any due process

duty owed to visa applicants and their citizen relatives when it

cites the statutory basis for a visa application's denial.                   But

again,   the Government's reliance is misplaced. Plaintiffs do not

contend that they were entitled to a more fulsome explanation of

the Government's decision on each of their SIV applications

they merely claim that they are entitled to a decision. 18

18The Government also looks to Svensborn v. Keisler, No. C07-5003
TEH, 2007 WL 3342751, at *4 (N.D. Cal. Nov. 7, 2007) and Toor v.
Clinton, No. 1:09CVF2790WWGSA, 2009 WL 1582900, at *4-*5 (E.D.
Cal. June 4, 2009) for support. In both, the court considered
whether  the   plaintiffs  could bring an action      to   compel
                              -42-
                                                          .   . ...   ~.




        The   Government   next    claims    that   its       denial              of   the    SIV

applications of two Plaintiffs named in the initial Complaint, but

not in the Amended Complaint, somehow indicates that the remaining

Plaintiffs' applications have been denied:

        Plaintiffs do not deny, and cannot deny, that since the
        outset of this action,       two of the nin~ original
        Plaintiffs have been refused visas on terrorism-related
        grounds. See Dybdahl Deel. at 3, 4-5 (discussing visa
        refusals of Plaintiffs Charlie and Golf under 8 U.S.C.
        § 1182 (a) (3) (B)). Yet Plaintiffs' original Complaint,
        ECF No. 1, made the same arguments for Plaintiffs Charlie
        and Golf that Plaintiffs continue to make for all others
        in this case. But there is no question, and Plaintiffs
        make no argument, that Defendants can somehow ignore
        their statutory duty under 8 U.S.C. § 1182(a)
        including subsection (a) (3) (B) - - which prohibits the
        issuance of visas to, inter alia, persons who engage in
        terrorist activities.

Gov't's Reply at 5.

        This argument makes little sense (and even tends to support

Plaintiffs' contentions). By omitting Golf and Charlie from their

Amended Complaint, Plaintiffs appear to agree that they received

final    decisions   on    their   applications     after                  they   filed      their

initial Complaint and, as already noted, are not seeking review of

the   substance of    the decision.         See Compl.        (filed February 26,

2015); Dybdahl Deel.       ~~   8, 12 (Charlie's application denied under




reconsideration of their visa applications. In the case at hand,
however, Plaintiffs do not ask for reconsideration because they
have not yet received final decisions on their SIV applications.
Accordingly, Svensborn and Toor are inapplicable.
                                      -43-
§   1182(a) (3) (B) on May 7, 2015 and Golf's application denied under

§   1182 (a) (3) (B) on June 28, 2015).

       None     of    the   remaining        Plaintiffs,      however,       have   received

final, terrorism-related refusals under 8 U.S.C.                         §   1182(a) (3) (B).

Instead, as discussed at length above, they await final decisions

following "administrative processing." The Government's invocation

of Golf and Charlie serves only to highlight the contrast between

their final, terrorism-related refusals and the other Plaintiffs'

indefinite wait for the end of the SIV process.

       By consigning applicants to "administrative processing," the

Government           endeavored       to     enjoy    the        benefits     of     consular

nonreviewability,           which is explained immediately below,                    without

having     to     report     to    Congress         that    it    has    denied      the    SIV

applications of many Iraqis and Afghans who supported the United

States' military efforts in their countries. The applications have

either been finally denied or they are still working their way

through the 14 steps the Government requires to be completed. The

Government       cannot     have   it      both ways.       For    the   reasons      already

stated, the Court concludes that the SIV applications of Ronaldo,

Foxtrot,        India,      Juliet,        Alice,    Hotel,       and    Lima      remain    in

"administrative processing," and have not been finally refused.




                                              -44-
                     b.     Consular Nonreviewability

      In its seminal case on consular nonreviewability, our Court

of Appeals explained the doctrine as follows:

      In view of the political nature of visa determinations
      and of the lack of any statute expressly authorizing
      judicial review of consular officers' actions, courts
      have applied what has become known as the doctrine of
      consular nonreviewability. The doctrine holds that a
      consular official's decision to issue or withhold a visa
      is not subject to judicial review, at least unless
      Congress says otherwise.

Saavedra Bruno, 197 F.3d at 1159. In an earlier, terser statement

of the doctrine,          the Court noted that "a consular officer could

make such a decision          [to deny a visa]       without fear of reversal

since visa decisions are            nonreviewable."     Castaneda-Gonzalez v.

Immigration & Naturalization Serv., 564 F.2d 417, 428 n.25                  (D.C.

Cir. 1977).

      The doctrine preceded passage of the APA and constitutes an

exception to the presumption of judicial review as contemplated in

the APA. Saavedra Bruno, 197 F.3d at 1160-62. It sweeps broadly,

"appl [ying]   even where it is alleged that the consular officer

failed to follow regulations, where the applicant challenges the

validity of the regulations on which the decision was based, or

where the decision is alleged to have been based on a factual or

legal error." Van Ravenswaay, 613 F. Supp. 2d at 4 (quoting Chun

v.   Powell,   223    F.    Supp.   2d 204,    206   (D.D.C.   2002));   see also


                                        -45-
                                                           .   ····;   ..




Gov't's Mot.       at 25-26     (collecting cases showing the breadth of

unlawful      actions    by    consular     officers     that               are   nevertheless

unreviewable by the district courts) .

        "[T] he doctrine also applies where a plaintiff attempts to

circumvent the doctrine by claiming that he is not seeking a review

of the consular officer's decision, but is challenging some other,

related aspect of the decision." Malyutin v. Rice, 677 F. Supp. 2d

43, 46 (D.D.C. 2009), summarily aff'd No. 10-5015, 2010 WL 2710451

(D.C. Cir. July 6, 2010), cert. denied 131 S. Ct. 949 (2011).

        However,   as Plaintiffs point out,            the doctrine of consular

nonreviewability is not triggered until a                  consular officer has

made a    decision with respect to a particular visa application.

Patel    v.   Reno,     134   F.3d   929,   932   (9th   Cir.               1997);   see   also

Maramjaya v. U.S. Citizenship & Immigration Servs., No. CIV.A. 06-

2158 RCL, 2008 WL 9398947, at *4 (D.D.C. Mar. 26, 2008)                              (doctrine

of consular nonreviewability did not apply when "case ha[d]                                 not

procedurally progressed to the point where consular immunity would

bar judicial review" because plaintiff did not "challenge the visa

decision of any consular official" and instead challenged agency

actions antecedent to such a decision) . 19


19In per curium affirmances that rely on Saavedra Bruno's statement
of the doctrine of consular nonreviewability, our Court of Appeals
has consistently relied on the consulate having reached a coricrete
decision on the application at issue. See e.g., Malyutin v. Rice,
No. 10-5015, 2010 WL 2710451, at *l (D. C. Cir. July 6, 2010)
                               -46-
                                                                   ... '   ;··



•.



            The doctrine applies only once a consular officer has made a

     decision because       it protects           the prerogative of                the political

     branches to regulate the manner in which aliens may enter the

     United States. Saavedra Bruno, 197 F.3d at 1159 ("it is . . . not

     within the province of any court, unless expressly authorized by

     law,   to review the determination of the political branch of the

     Government to exclude a given alien."                 (internal quotation marks

     and citation omitted)).           When the Government simply declines to

     provide a decision in the manner provided by Congress, it is not

     exercising      its   prerogative       to    grant   or   deny             applications   but

     failing    to   act   at   all.   Id.    at    1161   ("For            []    aliens   [seeking

     admission to the United States] the procedure fixed by Congress is

     deemed to be due process of law." (quoting 1961 U.S.C.C.A.N. 2950,

     2976)) .


      ("Al though appellant asserts he is challenging a denial of his
     request for access to the state court rather than the denial of
     his application for a visa, determining whether appellant is
     entitled to damages from appellees would ultimately . require
     reviewing the decision to deny appellant a visa. That decision is
     clearly unreviewable, however." (emphasis added) ) ; Semiani v.
     United States, 575 F.3d 715, 715 (D.C. Cir. 2009) ("The district
     court properly dismissed appellant's complaint for lack of subject
     matter jurisdiction because 'a consular official's decision to
     issue or withhold a visa is not subject to judicial review,' unless
     Congress indicates otherwise." (emphasis added)); see also Noble
     v. Ricciardonne, 161 F. App'x 22, 22-23 (D.C. Cir. 2005); Antonenko
     v. Dep't of State, No. 03-5327, 2004 WL 1080159, at *1 (D.C. Cir.
     May 13, 2004).                                    .



                                              -47-
       Confirming that the doctrine is inapplicable in the absence

of a consular decision, the Court of Appeals for the Ninth Circuit

has   held       that   visa    applicants        may   challenge       the   Government's

suspension (rather than adjudication) of their visa applications.

Patel, 134 F.3d at 932.               Noting that the Patel plaintiffs "[we]re

challenging         the     consul's        authority        to    suspend     their      visa

applications, not challenging a decision within the discretion of

the consul[, the Court held that]                  jurisdiction exists to consider

whether      the    consulate        has    the   authority        to   suspend     the   visa

applications."            Id.    (emphasis        added) .        "Normally    a    consular

official's discretionary decision to grant or deny a visa petition

is    not    subject       to    judicial      review.       However,       when    the   suit

challenges the authority of the consul to take or fail to take an

action      as     opposed      to   a     decision     taken      within     the   consul's

discretion, jurisdiction exists." Id. at 931-32. 20



20The Government contends that Patel, 134 F.3d 929 is inapplicable
because that case involved consideration of a now-outdated
regulation. Compare 22 C.F.R. § 42.81(a) (1997) ("When a visa
application has been properly completed and executed before a
consular officer in accordance with the provisions of INA and the
implementing regulations, the consular officer shall either issue
or refuse the visa."), with 22 C.F.R. § 42.81 (2015) ("When a visa
application has been properly completed and executed before a
consular officer in accordance with the provisions of INA and the
implementing regulations, the consular officer must either issue
or refuse the visa under INA 212 (a) or INA 221 (g) or other
applicable law.") .    The Government's argument is simply not
convincing.

                                              -48-
                      .~·.   •.
                                                                  ... ..
                                                                  ..   ····;




      District courts outside of the Ninth Circuit have reached the

same conclusion.        See Am.          Acad.     of Religion v.              Chertoff,       463 F.

Supp. 2d 400, 421 (S.D.N.Y. 2006)                    (" [T]he wide latitude given the

Executive to grant or deny a visa application                                          does not

include     the     authority             to     refuse      to        adjudicate          a     visa

application."); Ceken v.                 Chertoff,    536 F. Supp. 2d 211,                 216    (D.

Conn. 2008)       (following Am. Acad. of Religion, 463 F. Supp. 2d at

420-21); see also Raduga USA Corp. v. U.S. Dep't of State, 440 F.

Supp. 2d 1140, 1146 (S.D. Cal. 2005)                      (following Patel, 134 F.3d at

932   and   holding               the   doctrine     of     consular           nonreviewability

inapplicable where "the consular official has not made any decision

in four years to date. That is the crux of this case.") . 21



  However, Patel, as the Court reads it, stands for the proposition
that the doctrine of consular nonreviewability does not apply
unless a consular official has actually granted or refused an
application. While revised § 42.81's references to certain
statutory bases for denial may clarify what the Government
considers a refusal, they do not undermine the Patel court's
conclusion that a decision to grant or refuse a visa application
is a pre-requisite to application of the doctrine.

21The Government cites several cases from district courts in other
circuits   that   indicate   that   the   doctrine   of   consular
nonreviewability would apply even in the absence of a final
decision. ~, Saleh v. Holder, 84 F. Supp. 3d 135, 139 (E.D.N.Y.
2014 (rejecting plaintiffs' argument "that the doctrine does not
apply to a request that a visa be adjudicated (as opposed to
granted) within a reasonable period of time" because "courts lack
subject matter jurisdiction to review the visa-issuing process").
These cases are unpersuasive given our Court of Appeals'
characterization of the doctrine as applicable to "a consular
official's decision to issue or withhold a visa" rather than the
                               -49-
                          ...

        In short,     the       doctrine holds       only that    "there may be        no

judicial review of [] decisions to exclude aliens unless Congress

has expressly authorized this[,]" Saavedra Bruno, 197 F.3d at 1162

(emphasis added and internal quotation marks omitted),                          but does

not preclude Plaintiffs from challenging the Government's failure

to    decide,    Patel,         134    F.3d   at   932.   Accordingly,    because     the

applications of Ronaldo, Foxtrot, India, Juliet, Alice, Hotel, and

Lima remain in "administrative processing" and,                        therefore,    have

not      been     finally             refused,     the     doctrine      of      consular

nonreviewability does not bar their claims. See e.g., Maramjaya,

2008 WL 9398947, at *4; Patel, 134 F.3d at 931-32.

                     c.         Status of Kilo and Mike's applications

        Plaintiff Kilo's application has not advanced as far as those

of other Plaintiffs and is not at the "administrative processing"

(13~)    step. The parties agree that he has not yet received COM

Approval, although he applied for it on August 25, 2014. Amended

Compl.    ~   33. The Government contends that Kilo lacks standing to

bring his claims because, not having submitted an SIV application,

he cannot claim that he is injured by the Government's failure to

adjudicate      an   SIV        application.       The    Government    oversimplifies

Kilo's situation.



failure to make a decision at all.                    Saavedra Bruno,         197 F.3d at
1159 (emphasis added) .
                             -50-
       Kilo has not submitted his full SIV application because he

must   first     obtain COM Approval           confirming his          "employment and

faithful and valuable service to the United States Government[.]"

APAA   §    602(b) (2) (D) (i). Thus,      like the other Plaintiffs, without

action by the Government, there is nothing Kilo can do to advance

his application.

       Review of applications for COM Approval is non-discretionary.

APAA    §    602 (b) (2) (D) (i)   states     that   the    appropriate        Chief    of

Mission, or her designee, "shall 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 . . . . " Id. (emphasis

added) .     Moreover,      applicants      denied    COM   Approval       have     appeal

rights specified in AAPA           §   602 (b) (2) (D) (ii).

       Finally,      the     Government       does    not      raise     its      consular

nonreviewability argument with respect to Kilo's application.

       Accordingly,         the    Court    concludes       that    Kilo,      like     the

Plaintiffs mired in "administrative processing," has established

the Court's jurisdiction to hear his claims for an order compelling

the Government to act on his application within a reasonable time.

       As to Mike's application, the State Department's Case Status

Tracker      lists    his   application       as   "at   NVC"      (that    is,    at   the

Department's National Visa Center). Pls.' Ex. D [Dkt. No. 44-3].

                                           -51-
                      .......


SIV applications are sent to the NVC at the second stage of the

SIV approval process, just before the interview stage begins. E.g.,

Pls.' Ex. Rat 3. Thus, Mike's application appears to simply be

pending at an earlier stage                  in the process         than those of        the

Plaintiffs stuck in "administrative processing."

       The Government offers no reasons to treat Mike's application

differently from the others, and the Court finds no reason to do

so.

       To summarize,            Alpha,   Bravo,     and Delta have received final

decisions on their SIV applications,                    and thus,        their claims are

now moot.    Ronaldo,           Foxtrot,    India,     Juliet,    Alice,    Hotel,    Lima,

Kilo, and Mike's SIV applications remain pending. These Plaintiffs

have suffered an injury in fact,                    as they must in order to have

standing    to pursue            this    litigation,     and     their    claims   are   not

subject to the doctrine of consular nonreviewability.

            3.      Judicially Manageable Standards to Enforce a Non-
                    discretionary Duty

       The Government next contends that Counts 3-6 must be dismissed

for lack of jurisdiction because Plaintiffs fail                           to identify a

non-discretionary duty owed them as well as judicially manageable

standards by which the Court may measure compliance with that duty.

       The APA provides that "within a reasonable time, each agency

shall proceed to conclude a matter presented to it."                               5 U.S. C.

§   555(b). Thus,    "[t]he APA imposes a general but nondiscretionary
                                             -52-
                   •.                              •·   .. ._,




duty upon an administrative agency to pass upon a matter presented

to it 'within a reasonable time,' 5 U.S.C. § 555(b), and authorizes

a reviewing court to 'compel agency action unlawfully withheld or

unreasonably delayed,'      id.§ 706(1)." Fort Sill Apache Tribe v.

Nat'l Indian Gaming Comm'n, No. CV 14-958, 2015 WL 2203497, at *4

(D.D.C. May 12,    2015)   (citing Mashpee Wampanoag Tribal Council,

Inc. v. Norton, 336 F.3d 1094, 1099-1100 (D.C. Cir. 2003)).

     The RCIA and AAPA provide additional guidance,                 instructing

that Defendants shall process SIV applications within nine months.

RCIA § 1242 (c) (1);    AAPA §§ 602 (4) (A).   The text of the statutes

makes clear that the nine-month timeline applies to "all steps"

under Defendants' control "incidental to the issuance of such [SIV]

visas[.]" Id. Thus,     the timeline applies to each of the 14 steps

in the SIV adjudication process identified in the Joint Reports

that are within Defendants'        control,    including         "administrative

processing" and "COM Approval." E.g., Pls.' Ex. 0 at 3.

     Simply put,    the APA imposes a duty 22 on Defendants to act

within a   "reasonable"    time on Plaintiffs'     applications,        and the



22 The regulations on which the Government relies to bolster its
argument that Plaintiffs' applications have been denied support
the conclusion that the Government's duty to decide Plaintiffs'
applications is non-discretionary. See Gov't's Mot. at 11 ("Upon
receipt of a proper visa application,       a consular officer
adjudicating the application 'must either issue or refuse the
visa.'" (quoting 22 C.F.R. § 42.81)).

                                   -53-
                        ...

RCIA and AAPA provide manageable standards (an explicit timeline)

by which a Court may assess the Government's compliance. Moreover,

our Court of Appeals has stated that:

        [T] he time agencies take to make decisions must be
        governed by a rule of reason [and] where Congress has
        provided a timetable or other indication of the speed
        with which it expects the agency to proceed in the
        enabling statute, that statutory scheme may supply
        content for this rule of reason[.]"

Telecommunications Research & Action Ctr. v. F.C.C., 750 F.2d 70,

80     (D.C.   Cir.   1984).   The   RCIA    and AAPA provide         just   such   a

"timetable or other indication of speed[.]" Id. 23

        Finally, the Government actually acknowledges that its duty

to eventually reach a decision on pending SIV applications is non-

discretionary.        Gov't's Mot.    at 36      ("[T]he only nondiscretionary

duty    Defendants      owed   was   to   make    a   decision   on   the    pending



23 Our Court of Appeals has recommended that courts consider the
following complete list of factors: "(1) the time agencies take to
make decisions must be governed by a rule of reason; (2) where
Congress has provided a timetable or other indication of the speed
with which it expects the agency to proceed in the enabling
statute, that statutory scheme may supply content for this rule of
reason; (3) delays that might be reasonable in the sphere of
economic regulation are less tolerable when human health and
welfare are at stake; (4) the court should consider the effect of
expediting delayed action on agency activities of a higher or
competing priority; (5) the court should also take into account
the nature and extent of the interests prejudiced by delay; and
(6) the court need not find any impropriety lurking behind agency
lassitude in order to hold that agency action is unreasonably
delayed." Telecommunications Research & Action Ctr., 750 F.2d at
80 (internal quotation marks and citations omitted).

                                          -54-
applications of Plaintiffs              . to issue or refuse their visas,

which they did.").

     Nevertheless, the Government contends that the pace at which

it adjudicates SIV applications is entirely discretionary, citing

Beshir v. Holder, 10 F. Supp. 3d 165 (D.D.C. 2014) for support.

     Admittedly,        Beshir      takes     an        expansive         view    of        the

Government's power to decide certain immigration applications on

its own timeline. Beshir, 10 F. Supp. 3d at 174 (holding that "the

pace of adjudication is discretionary"). However, the Beshir court

based its conclusion on factors which are not present in this case.

First,   the     Beshir    court      relied       on     " [t] he    absence          of     a

congressionally-imposed          deadline   or      timeframe        to    complete         the

adjudication of       [immigrant]    adjustment          [of status]        applications

[as] support[]       [for] the conclusion that the pace of adjudication

is discretionary and thus not reviewable [.]" Id. at 176.                          In the

case at bar, Congress has provided a clear nine-month timeline for

the adjudication of SIV applications.

     Second      Beshir    relied      on     relevant         statutory          language

permitting the Government to consider certain applications "in the

Secretary      [of   Homeland     Security]        or    the   Attorney          General's

discretion and under such regulations as the Secretary or Attorney

General may prescribe." Id. at 173             (quoting 8 U.S.C.             §   1159(b)).

The Government points to no similarly explicit grants of discretion

                                       -55-
applicable to Plaintiffs' applications. Thus, the Beshir Court's

reasoning is wholly inapplicable. 24

      The Government also contends that the pace of adjudication of

SIV applications is discretionary because Congress provided for

the possibility that "national security concerns" might cause some

applications to require additional time.                  See RCIA    §   1242 (c) (2)

("Nothing in this section [which includes the nine-month timeline

quoted above]      shall be construed to limit the ability of                   [the]

Secretary     [of State and the 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."); see also AAPA       §   602(4)(B)      (same).

      As    the   Government     reads    them,     the   statutes'       mention   of

national security returns absolute discretion to the Government's

hands.     Gov't's Mot.    at 34    ("But the nine-month timeline is not



24 The Government points to Orlov v. Howard in support of its
argument   that   the   speed  of   application    adjudication   is
discretionary, but that case also relies on the absence of a
Congressionally-prescribed timeline,     and   therefore   is   also
inapplicable. Orlov v. Howard, 523 F. Supp. 2d 30, 35 (D.D.C. 2007)
("In the absence of statutorily prescribed time limitations or
statutory factors to guide users in crafting regulations for the
adjustment process, it is difficult to determine how the pace of
processing   an   application  could   be    anything   other   than
discretionary.").


                                         -56-
                         .• ..    "'
                                                                         ...
                          -

                         . ,~·.




binding at any stage because the statute contemplates national

security       delays,                 which   are     inextricably                intertwined      with

discretionary         consular             decisions.       Delays       related        to      national

security can affect processing and timing at any stage, rendering

the nine-month period merely aspirational.").

      The RCIA and AAPA follow the same structure. Both statutes

introduce the nine-month timeline and define its application in

one paragraph and then introduce the safety valve for "high-risk

cases"    in the very next paragraph.                        RCIA    §     1242 (c)      and AAPA       §


602 (b) (4).   The statute sets                  forth that additional time may be

permitted when national security issues arise. Obviously, Congress

would not have adopted this rule-and-exception structure if it

expected the exception to apply in every case. Moreover, the words

"high-risk tases" indicate a distinction between the                                     ru~-of-the-


mill case,      which must be adjudicated within nine months,                                     and a

subset of cases presenting "national security concerns" that do

not arise      in the             typical      application.     RCIA           §    1242 (c);    AAPA   §


602(b) (4).     The    Government's              reading      would        allow        the     national

security exception to swallow the nine-month rule in its entirety.

      Moreover,       the presence of                  the national            security exception

does not eliminate the judicially-manageable standards described

above. If the Government credibly claimed that a particular case

was      "high-risk"               because      it      presented          "national            security

                                                     -57-
concerns[,]"             RCIA    §    1242(c)(2);         AAPA   §     602(b)(4)(B),          a    court

should,        of     course,         appropriately           defer        to    the   Government's

expertise in the area of foreign policy and national security.

        In this case, the Government has not even attempted to show

that Plaintiffs' applications fall into the "high-risk" exception.

To    be     sure,       the    Government        has     stated      that      national      security

concerns are present in this case, e.g., Gov't's Reply ("Nor does

anything in [a particular case that Plaintiffs cite] address the

direct question of national security interests,                                     and terrorism-

related       considerations,              that    are    unmistakably present                in this

case."), but the Government has never specified in any way what

those concerns are.

        The Government has suggested that because the applications of

Charlie and Golf,               named as Plaintiffs in the i.nitial Complaint,

were refused on terrorism-related grounds, the current Plaintiffs'

applications are also suspect. Gov't's Reply at 1. However,                                            the

Government never even describes what relationship Charlie and Golf

have to the other Plaintiffs that would cause such concern.

        It    is     implied         by    the    Government         that       "national     security

concerns,"          as    the    term is used in RCIA                  §    1242(c)(2)        and AAPA

§    602(b) (4) (B), are present in all SIV applications by Iraqis and

Afghan       citizens.               But   such    an     interpretation           conflicts           with

Congress's           statutory         design. -        The    RCIA        applies     only       to    SIV

                                                   -58-
                                 ~.:   ..                                               ...



applications by Iraqis,                                and the AA.PA,     likewise,              applies only to

applications by Afghans. If Iraqi or Afghan citizenship were enough

to   render      an application                            "high-risk,"       the       nine-month             timeline

would, again, be rendered a dead letter.

       For      all         of              these          reasons,    the     Court              concludes          that

adjudication of Plaintiffs' SIV applications within a reasonable

time is non-discretionary,                                  that judicially manageable standards

exist to measure the Government's performance of its duty,                                                            and

that    the     national                    security exception does                 not          undermine          these

conclusions.            Accordingly,                         the      Court     has              subject           matter

jurisdiction to hear Plaintiffs' claims.

               4.       The APA and the Mandamus Act

       The APA, 5 U.S.C.                           §    706(1), authorizes the federal courts to

"compel        agency            action                  unlawfully     withheld                or     unreasonably

delayed." The Supreme Court explained that                                          §     706 (1)       "empowers a

court only to compel an agency 'to perform a ministerial or non-

discretionary act, '                          or       'to take action upon a                    matter,        without

directing how it shall act.'" Norton v. S. Utah Wilderness All.,

542 U.S.       55,     64    (2004)                    (quoting Attorney General's Manual on the

Administrative Procedure Act 108 (1947)).

       Mandamus is "a drastic and extraordinary remedy reserved for

really extraordinary causes." Cheney v. U.S. Dist. Court for D.C.,

5 4 2 U. S .   367 ,        380             ( 2 0 O4 ) .   The Mandamus Act ,                 2 8 U. S . C .   §    13 61 ,

                                                              -59-
...


      provides district courts with 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. Courts may provide relief under the Act only when

      the plaintiff shows:    (1)   the defendant has a clear duty to act;

      (2)   the plaintiff has a clear right to the relief he is seeking;

      and (3) the plaintiff has no other adequate remedy available. See

      Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005).

            The Government contends that Plaintiffs have failed to state

      a   claim under either the APA or the Mandamus Act             for   reasons

      already rejected above: 1) that Plaintiffs' SIV applications have

      already been finally refused;      2)     that the doctrine of consular

      nonreviewability bars their claims;         and 3)    that the nine-month

      timelines provided in the RCIA and AAPA are discretionary.               See

      Gov't's Mot. at 27-36. The Government raised all these concerns in

      the context of its jurisdictional arguments, and in the sections

      above, the Court explains why none of them have merit: Plaintiffs'

      SIV applications await further action by the Government and have

      not been finally refused, see supra sections III.B.2.a. & c.; the

      doctrine    of   consular     nonreviewability       is   inapplicable    to

      Plaintiffs' claims, see supra section III.B.2.b.; and the duty to

      adjudicate Plaintiffs' applications within a reasonably period, as



                                         -60-
informed by the nine-month timelines in the RCIA and AAPA is non-

discretionary, see supra section III.B.3.

     The Government also contends                     that Plaintiffs'         claims must

fail because any delays in processing their applications are "based

on their own failures to           sub~it       all required to meet their burden

to demonstrate visa eligibility, at various stages of the process."

Gov't's       Mot.    at   34-35   (citing          Dybdahl    Deel.).        This   factual

assertion       directly     conflicts      with       facts    pled     in    Plaintiffs'

Amended Complaint. See e.g. id.                 ~    7 ("Following the grant of COM

Approval, each of the COM-Approved Plaintiffs duly completed all

other steps required of them by the SIV application process.") .

The Court cannot consider the Government's conflicting factual

assertion in a motion to dismiss for failure to state a claim.

Aktieselskabet,        525 F. 3d at 17              (a "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success[, and]                      . must assume all the allegations

in the complaint are true (even if doubtful in fact)").

     For      these    reasons,    Plaintiffs          have    properly stated         their

claims under the APA, 5 U.S.C.              §    706(1), and the Mandamus Act, 28

u.s.c.    §   1361.
                                                        '
     c.        Counts 1 & 2: Failure to Protect

     RCIA      §   1244(e) provides that "[t]he Secretary of State,                       in

consultation with the heads of other relevant Federal agencies,

                                         -61-
                           \~   ....
                       .   .     .;




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,                               if possible,       of

such alien if the Secretary determines after consultation that

such alien is in imminent danger." AAPA § 602 (b) ( 6) contains nearly

identical language with respect to Afghan SIV applicants.

     Plaintiffs contend that this passage gives rise to two related

duties: " ( 1). [to] consult with the heads of other relevant Federal

agencies to assess whether the threats faced by Plaintiffs are

imminent;    and,     if          so,     (2)   make a    reasonable effort to provide

protection       or   the              immediate   removal      of   Plaintiffs        from   such

threats,    if    possible."               Pls.'   Opp'n at       28.     Counts   1   and    2 of

Plaintiffs' Amended Complaint allege that Defendants have failed

to fulfil these duties. Am. Compl.                        ~~   205-218.

     As already discussed,                      the APA empowers reviewing courts to

"compel     agency         action           unlawfully         withheld     or     unreasonably

delayed[.]" 5 U.S.C. § 706(1) . 2 s Citing§ 706, Plaintiffs ask the




25 Plaintiffs' Amended Complaint also cites the APA' s grant of
judicial authority "[to] hold unlawful and set aside agency action,
findings, and conclusions found to be . . . without observance of
procedure required by law." Amended Compl. ~~ 209, 216 (quoting
5 U.S.C. § 706(2)). However, Plaintiffs' Opposition relies only on
§ 706(1) to rebut the Government's arguments in favor of dismissing
Counts 1 and 2.

                                                   -62-
Court to compel Defendants to undertake the duties described in

RCIA   §   1244 (e) and AAPA   §   602 (b) (6).

       The    Government      contends       that     this   Court    is     without

jurisdiction to hear Claims 1 and 2. 26 The Court agrees for the

following reasons.

       "[A]   claim under section 706 (1)             can proceed only where a

plaintiff asserts that an agency failed to take a discrete agency

action     that   it   is   required    to   take."    People   for   the    Ethical

Treatment of Animals v. U.S. Dep't of Agric., 797 F.3d 1087, 1098

(D.C. Cir. 2015)       (emphasis and brackets omitted)           (quoting Norton

v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)). Moreover,

the APA expressly precludes judicial review of agency action that

is "committed to agency discretion by law." 5 U.S.C.                  §   70l(a) (2).

Agency action is committed to agency discretion by law when "the

statute is drawn so that a court would have no meaningful standard



26 The Government also contends -- for the first time in its Reply
brief -- that Plaintiffs lack standing to assert claims under RCIA
§ 1244 (e) and AAPA § 602 (b) (6) because these provisions contemplate
individuals with unadjudicated SIV applications, and Plaintiffs'
applications have been finally refused. Ordinarily, an argument
not raised in an opening brief is forfeited, Am. Wildlands v.
Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008), but because
Plaintiffs'    lack of standing would deprive this Court of
jurisdiction, the Court must consider the question. Fed. R. Civ.
P. 12{h) (3); Henderson ex rel. Henderson v. Shinseki, 562 U.S.
428, 435 (2011). However, the question is easily answered: As the
Court concludes below, Plaintiffs' applications have not been
finally adjudicated,      so the Government's late challenge to
Plaintiffs' standing fails.
                                   -63-
against which to judge the agency's exercise of discretion [.]"

Sierra Club v. Jackson, 648 F.3d 848, 855 (D.C. Cir. 2011)                          (quoting

Heckler v.   Chaney,       470 U.S.      821,    830    (1984)).      If no "judicially

manageable standard" exists by which to judge the agency's action,

meaningful judicial review is unavailable under the APA. Id.

      The statutory duties that Plaintiffs cite are of the type

described in Sierra Club. Plaintiffs point to no standards by which

the Court could assess whether Defendants have adequately assessed

the dangers that     P~aintiffs         face.

      The language of RCIA         §    1244(e) and AAPA         §   602(b) (6) strongly

indicates    that    significant         discretion        has       been    left    to   the

Secretary of State as to how to carry out his mandate. Under the

statutes the Secretary "shall make a reasonable effort" to provide

protection or removal         to SIV applicants.               Id.    What efforts are

reasonable will depend upon "complex concerns involving security

and   diplomacy"     far    beyond      the     expertise      of    the    Court         but

squarely    within    that    of       the    Secretary.       Legal       Assistance     for

Vietnamese Asylum Seekers v. Dep't of State,                         Bureau of Consular

Affairs,    104    F.3d    1349,   1353         (D.C.   Cir.     1997) .· In· addition,

Plaintiffs fail to point to any standards by which the Court may

assess whether Plaintiffs are in "imminent danger" or whether the

Secretary has adequately acted "in consultation with the heads of



                                             -64-
                                                             . -..:...




other        relevant        Federal   agencies."     RCIA           §      1245 (e);     AAPA

§   602 (b) (6)

        True,     the RCIA and AAPA both use the word "shall,"                           which

generally indicates an "affirmative command." See Nat'l Ass'n of

Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661 (2007)

("The word 'shall' generally indicates a command that admits of no

discretion on the part of the person instructed to carry out the

directive"        (internal citations omitted)). But Congress surrounded

"shall" with a profusion of other words that connote discretion:

        The Secretary .    . 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, if possible, of such
        alien if the Secretary determines after consultation
        that such alien is in imminent danger.

RCIA    §   1245(e)    (emphasis added); accord AAPA         §           602(b) (6).

        In order to enforce the statute's command,                         the Court would

have        to    (1) assess      whether     the   Secretary's               efforts      were

"reasonable",         ( 2)   decide whether any efforts other than removal

would       provide     sufficient     "protection",     (3) determine                  whether

protection or removal were "possible," and                   (4)          pass judgment on

the Secretary's final "determin[ation]" about the imminence of any

danger facing a particular SIV applicant. Id. Plaintiff points to

no standards by which the Court might assess these decisions.




                                            -65-
        Plaintiffs also argue that,           at the very least,          the duty to

consult is a        clear enough statutory duty to be susceptible to

judicial     review and note         that    "there    is   no   evidence- -or even

argument--that the State Department has ever consulted with the

heads of other relevant Federal agencies regarding the nature of

the threats faced by Plaintiffs or has ever provided for protection

or removal following such consultations." Pls.' Opp'n at 31 (both

instances of emphasis in original) .

        However,    even if the Secretary's duty to consult were non-

discretionary, Plaintiffs would lack standing to enforce it. That

is because "the omission of a procedural requirement does not, by

itself,     give    a    party    standing    to    sue."   Ctr.    for    Biological

Diversity v. U.S. Dep't of Interior, 563 F.3d 466, 479 (D.C. Cir.

2009)    (citing Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 664 (D.C.

Cir. 1996)). Rather,        "a procedural-rights plaintiff must show not

only      that     the    defendant's        acts     omitted      some    procedural

requirement, but also that it is substantially probable that the

procedural       breach    will     cause     the   essential       injury    to   the

plaintiff's own interest." Id. Plaintiffs have not contended that

the Secretary of State's alleged failure to consult led to his

failure to protect or remove them from Iraq or Afghanistan. Indeed,

Plaintiffs could not make such an allegation because, as the Court

notes above,       the determinations that follow consultation                 (e.g.,

                                        -66-
whether and how to protect or remove SIV applicants from their

countries) are themselves discretionary.

      In short,    under RCIA    §   1244 (e)   and AAPA   §   602 (b) (6),   "the

agency is entrusted by a broadly worded statute with balancing

complex     concerns   involving     security     and   diplomacy"     that   are

"peculiarly with       the   agency's    expertise [.]"    Vietnamese     Asylum

Seekers, 104 F.3d at 1353. Counts 1 and 2 of Plaintiffs' Amended

Complaint must be dismissed.

IV.   CONCLUSION

      For   the   foregoing   reasons,       Plaintiffs'   Motion    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). Accordingly, Counts 1

& 2 shall be dismissed and Alpha, Bravo, and Delta's claims shall

be dismissed as moot.




January 28, 2016                             Gla~s~~,k~
                                             United States District Judge

Copies to: attorneys on record via ECF




                                      -67-
