UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) DINESH BADE et al., ) ) Plaintiffs, ) ) v. ) Case No. 21-cv-01678 (APM) ) DEPARTMENT OF STATE et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER

Plaintiffs are selectees of the 2020 and 2021 Diversity Visa (“DV”) programs who wish to

complete the interview component of their DV applications via videoconference. 1 Pls.’ Request

for a Prelim. Inj., ECF No. 3 [hereinafter Pls.’ Br.], at 11–12. They seek to enjoin Defendants

from requiring that interviews of DV applicants take place in person, arguing that the in-person

interview requirement violates the Administrative Procedure Act (“APA”), the Due Process Clause

of the Fifth Amendment, and the Government Paperwork Elimination Act. Id. at 14. Because

Plaintiffs have not demonstrated that they have standing or that they are likely to succeed on the

merits, the court denies their motion.

I.

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat.

Res. Def. Council, Inc.,

(2008). In addition, “a party who seeks a preliminary

1 Plaintiffs have represented that only the DV 2021 selectees bring this preliminary injunction motion. See Pls.’ Request for a Prelim. Inj., ECF No. 3, at 11. injunction must show a substantial likelihood of standing.” Food & Water Watch, Inc. v. Vilsack,

(D.C. Cir. 2015) (cleaned up).

II.

Plaintiffs argue that they “have standing to seek an injunction as they are at continuing risk

of future illegal conduct” based on Defendants’ refusal to permit applicants to complete interviews

via videoconference. Pls.’ Br. at 14. Plaintiffs appear to assert that they are at risk of suffering

two injuries: (1) that their visas will not be finally adjudicated because Defendants’ COVID-19

protocols limit their capacity to conduct in-person interviews, see

at 13–14; and (2) that

appearing for in-person interviews may expose applicants to COVID-19, see Pls.’ Resp. to Defs.’

Mot. to Dismiss & Reply in Supp. of Request for a Prelim. Inj., ECF No. 13 [hereinafter Pls.’

Reply], at 10. Under the law of this Circuit, plaintiffs who argue that they face an increased risk

of harm must show that the defendants’ actions “substantially increased” the risk that a specific

plaintiff will face harm and demonstrate “a substantial probability” that the plaintiff will suffer

“harm with that increase taken into account.” Food & Water Watch,

(internal

quotation marks omitted). Plaintiffs may not “aggregate a series of remote and speculative claims”

to establish standing and must identify a “particular individual” who will be harmed. See Pub.

Citizen, Inc. v. Nat’l Highway Traffic Safety Admin.,

, 1293–94 (D.C. Cir. 2007).

Both of Plaintiffs’ asserted increased-risk injuries fail because Plaintiffs have not

established that any one among them will suffer the injuries imminently. See id. (noting an

“imminence problem arises” when “no one can say who” specifically in a group will suffer an

injury). First, as to the increased risk that Plaintiffs’ DV applications will not be adjudicated,

Plaintiffs have not identified any individual Plaintiff who likely would have had their DV

application adjudicated if not for the in-person interview requirement. Instead, they impermissibly

2 rely on the likelihood that, in the aggregate, some number of them are substantially likely to not

have their DV applications adjudicated if they are required to appear in person. See Pls.’ Br.

at 13–14. Plaintiffs therefore have not adequately demonstrated that they are substantially likely

to have standing. Food & Water Watch,

.

Second, as to Plaintiffs’ increased risk of contracting COVID-19, Plaintiffs again have not

identified any facts showing that any individual Plaintiff faces a substantial risk of contracting

COVID-19 because of the in-person interview requirement. They identify three Plaintiffs who

will need to travel to complete their in-person interviews, and they assume these Plaintiffs face a

risk of infection based on the assertion that “the deadly Delta variant is raging in Europe.” Pls.’

Reply at 10. But Plaintiffs have offered just a couple statistics about the global death toll from the

COVID-19 pandemic and the cumulative case count in Poland as support for the risk that Plaintiffs

face. See

This evidence is insufficient to show that there is a substantial probability that any

individual Plaintiff will contract COVID-19 if they travel to complete their interview. See Food

& Water Watch,

. Based on this evidence, the court cannot conclude that Plaintiffs

have demonstrated a substantial likelihood of standing.

III.

Even if this court were to conclude that Plaintiffs have standing, their motion would still

fail because they have not shown that they are likely to succeed on the merits of their claims under

the APA or the Due Process Clause or on their claim that the in-person interview requirement is

ultra vires.

First, Plaintiffs are unlikely to demonstrate that the in-person interview requirement for

immigrant visa applicants violates the APA. Congress delegated the particular “form and manner”

that immigrant visa applications must take to the Department of State. See

(a). It

3 further required that, “[e]xcept as may be otherwise prescribed by regulations, each application for

an immigrant visa shall be signed by the applicant in the presence of the consular officer.”

§ 1202(e) (emphasis added). Congress therefore gave the Department of State “wide-ranging

discretion” in determining the form and manner of immigrant visa applications, cf. Farrell v.

Blinken, No. 19-5357,

, at *8 (D.C. Cir. July 13, 2021) (interpreting a similar

statute permitting the Secretary “to prescribe regulations to govern” certain determinations to

permit an in-person requirement), and explicitly contemplated that certain aspects of immigrant

visa applications would occur in person. Against this backdrop, the Department of State’s

legislative regulations requiring in-person interviews are not “arbitrary, capricious, or manifestly

contrary to the statute,” and thus are entitled to “controlling weight.” Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc.,

(1984).

Second, Plaintiffs are unlikely to succeed on their due process claim because they have not

established that they are entitled to due process. “The Supreme Court has long held that non-

resident aliens who have insufficient contacts with the United States are not entitled to Fifth

Amendment protections.” Jifry v. F.A.A.,

(D.C. Cir. 2004). Plaintiffs are,

by definition, non-resident aliens, see

(c), and they have not demonstrated any

contacts with the United States that would entitle them to the protections of the Fifth Amendment.

See People’s Mojahedin Org. of Iran v. U.S. Dep’t of State,

(D.C. Cir. 1999)

(“Aliens receive constitutional protections only when they have come within the territory of the

United States and developed substantial connections with this country.” (alterations omitted)

(quoting United States v. Verdugo-Urquidez,

(1990))). Accordingly, Plaintiffs’

due process claim is unlikely to succeed on the merits.

4 Third, Plaintiffs have not identified any provision of the Government Paperwork

Elimination Act that Defendants violate by requiring in-person interviews. They concede that

Defendants have accepted electronic visa applications, Pls.’ Reply at 22, and have not identified

any way that Defendants “den[y] legal effect, validity, or enforceability” of the electronic

signatures on those documents,

,

(1998), by requiring

further confirmation of the application to occur in person. Accordingly, they are unlikely to

succeed in demonstrating that in-person interviews violate the Government Paperwork Elimination

Act.

IV.

For the foregoing reasons, the court denies Plaintiffs’ Request for a Preliminary Injunction,

ECF No. 3.

Dated: August 4, 2021 Amit P. Mehta United States District Court Judge

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