Filed Date: June 12, 2018
Case Ongoing
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Background
After long delays in the processing of their Special Immigrant Visa (SIV) applications, a group of Afghans and Iraqis who worked for the U.S. government to support U.S. missions in their home countries, filed this class action challenge against the Departments of State (DOS) and Homeland Security (DHS). The plaintiffs, represented by the International Refugee Assistance Project (IRAP) and the law firm Freshfields Bruckhaus Deringer LLP, filed the lawsuit on June 12, 2018, in the U.S. District Court for the District of Columbia. Seeking declaratory and mandamus relief, they alleged that the ongoing delays in the processing of their SIV applications violated the Refugee Crisis in Iraq Act of 2007 (RCIA), the Afghan Allies Protection Act of 2009 (AAPA), and the Administrative Procedure Act. Before filing their complaint, Judge Beryl A. Howell granted the plaintiffs' motion for leave to file their complaint under pseudonyms, noting that disclosure of the plaintiffs' names would put their safety and well-being in serious jeopardy and also have minimal public benefit. Along with their complaint, the plaintiffs requested class certification, proposing a class of:
All people who have applied for an Afghan or Iraqi SIV pursuant to the [AAPA] and [RCIA] by submitting an application for COM (Chief of Mission, i.e. the principal officer in charge of the diplomatic missions in Afghanistan and Iraq) approval and whose applications have been in government-controlled steps for longer than nine months.
As the U.S. military and diplomatic missions in Iraq and Afghanistan wore on and Iraqis and Afghans who supported the U.S. government found their safety increasingly threatened, Congress enacted the SIV program in 2008 (for Iraqis) and 2009 (for Afghans) in order to allow them to legally migrate to the United States. In 2013, Congress amended the SIV laws to mandate that the processing of SIV applications be completed within nine months to remedy the severe backlog. According to the plaintiffs, the backlogs persisted. By 2015, DOS and DHS faced at least two lawsuits from separate groups of SIV applicants seeking to have the deadline enforced. This was after a court rejected its motion to dismiss in one of the cases. The government agreed to adjudicate the SIV applications promptly for both groups of plaintiffs. Nine Iraqi Allies Under Serious Threat Because of Their Faithful Service to the United States v. Kerry; Doe v. United States Department of State.
Here, the plaintiffs alleged that their claims were largely identical to those in the 2015 cases, the only difference being that they sought relief for the whole class of SIV applicants experiencing delays, as opposed to just one subset.
The government filed its opposition to the plaintiffs’ class certification on July 26, 2018, arguing that the proposed class was overbroad because it would encompass some individuals who would never be in a position to apply for an actual visa. The government also filed a motion to dismiss on August 13, 2018. The government argued that the plaintiffs’ case should be dismissed because: (1) the plaintiffs lacked standing to sue the government, and (2) the plaintiffs failed to state claims because Congress’ nine-month deadline was not actually mandatory.
Meanwhile, the plaintiffs filed a motion for a preliminary injunction on September 7, 2018. They sought a declaration that the processing delays were unreasonable, an order that the government provide a plan to promptly process the applications, and an order that the government submit reports every 30 days to show their progress on their processing plan.
Judge Tanya Chutkan denied the government’s motion to dismiss on January 30, 2019, holding that the plaintiffs did have standing under the precedent of Nine Iraqi Allies Under Serious Threat. Moreover, even though the nine-month deadline was not mandatory, it could be used as a benchmark to assess whether the delays were unreasonable. 2019 WL 367841.
Finding of "Unreasonable Delay" and the First Adjudication Plan
During a motions hearing in July 2019, the court consolidated the hearing on the preliminary injunction with the "trial on the merits," thereby converting the plaintiffs' motion into a summary judgment motion. On September 20, 2019, the court granted the motion in part. 2019 WL 4575565. Finding that the defendants’ delays in the processing and adjudication of the plaintiffs’ SIV applications were unreasonable in light of the RCIA and the AAPA, the court ordered that the defendants submit a plan for promptly processing and adjudicating the applications of current class members within thirty days of the resolution of the class certification dispute. Following this initial submission, the plaintiffs were required to file any objections to the plan within twenty-one days. And following court approval of the plan, the defendants were required to submit progress reports every sixty days. The government sought reconsideration of the order on October 18, 2019, which the court denied on February 5, 2020. Judge Chutkan concluded that the defendants' assertions — which concerned when the nine-month timetable began and whether the court had erred in finding the defendants unreasonably delayed adjudicating applications — were unpersuasive. 2020 WL 587878.
On the same day, the court issued a separate opinion granting plaintiffs' motion for class certification, accepting the plaintiff’s definition of the relevant class. Judge Chutkan found that the defendants had a "non-discretionary duty to fully adjudicate applications without unreasonable delay" and that granting the class would "efficiently and effectively bring the defendants into compliance with that statutory duty." 2020 WL 590121. Throughout the course of the litigation, the court frequently consolidated cases with this lead one where the plaintiffs in the other cases met the class definition, would not have been able to obtain separate relief, and their cases involved the same legal and factual issues as the present case.
On February 10, 2020, the court set a deadline for March 5, 2020, for the government to submit a plan to promptly process and adjudicate the applications of current class members. Two weeks later, on February 24, 2020, the government filed a motion to temporarily stay the preliminary injunction, in order to "align the deadline for submission of the plan with defendants’ deadline to submit a notice of appeal." The government argued that the requirement that they submit an adjudication plan before they are required to appeal is prejudicial, as it would adversely affect their decision-making on whether to appeal and file a stay pending appeal. The court denied the stay motion on March 4, 2020, finding that "the balance of judicial economy and prejudice to the parties does not weigh in favor of a stay."
The next day, in accordance with the preliminary injunction, the government filed its proposed adjudication plan. To more effectively process and adjudicate applications, they proposed to "process principal aliens before derivative aliens," limit repeat applications, and impose deadlines for the submission and verification of documents, among other measures.
On March 19, 2020, the plaintiffs filed a motion for contempt, or, in the alternative, to enforce the court's September 2019 and February 2020 orders. The plaintiffs asserted that the government's proposed plan was inadequate because it lacked a proposed timetable for adjudication and an accurate method for identifying class members. The plaintiffs further contended that the proposed plan did "not commit to reducing the time Defendants spend adjudicating applications and instead cut off opportunities for SIV applicants to establish their qualifications." The government argued that the motion should be denied because plaintiffs had veered from the court's sequence for arriving at a final plan and because the motion was based on inferences as to what the court’s order required.
The defendants filed a motion to decertify the class on March 23, 2020, asserting that changes had been made under the AAPA, such that the plaintiffs could no longer demonstrate commonality, typicality, or adequacy, and making class-wide relief inconsistent with the AAPA. The manner in which the applications of Afghan class members were processed was modified to "give preferential treatment to higher-priority applicants." The plaintiffs argued that the parties had already briefed this change and that the Court had already rejected the argument.
The government filed a motion to dismiss in part the plaintiffs' amended class complaint for lack of subject matter jurisdiction on April 6, 2020. They argued that three of plaintiffs' claims were moot due to the Court granting relief under the APA and the government designating coordinators as required by the RCIA and the APA.
The court issued an order requiring the parties to file a joint proposed adjudication plan on April 15, 2020. It ordered that the proposed plan "target defendant’s processing time rather than applicant deadlines" and include the following:
Judge Chutkan concluded that defendants' conduct did not warrant a finding of contempt but that the proposed adjudication plan was misguided and inadequate, writing: "Most fundamentally, the plan fails to commit to reducing the time that Defendants spend adjudicating applications. Instead, it targets SIV applicants and forces a reduction in their time to submit materials."
The parties submitted a proposed joint adjudication plan on May 21, 2020. A press release from IRAP stated that "according to the new plan, the government will adjudicate an estimated 10,000 outstanding applications, completing all government-controlled steps within agreed upon timeframes. For example, Chief of Mission approval, which verifies an applicant’s employment supporting U.S. missions, must be granted or denied within 120 days." The proposed plan also required the government to submit a report on the progress of these adjudications every 90 days. Under the plan, defendants are required to report on their performance, and, if their performance did not meet the target timeframe, explain why performance was lacking. On June 14, 2020, the Court approved the plan.
The Court denied defendants' motion to de-certify the class on June 23, 2020. The Court acknowledged recent policy changes, but reasoned that these changes "do not alter the questions that were previously decided by this court." As such, the "same issue" should "lead to the same result."
Defendants filed a notice of an interlocutory appeal to the U.S. Court of Appeals for the District of Columbia Circuit on August 12, 2020, challenging six of the District Court's prior orders:
At the appellate court on October 5, 2020, the plaintiffs filed a motion to dismiss for lack of jurisdiction. They argued that there was no appealable injunction and that the orders in question were time-barred until final judgment. The defendants ultimately filed for voluntary dismissal of this appeal due to ongoing settlement discussions (see below), which the appellate court granted on September 16, 2021.
Back at the District Court, the defendants moved for entry of a final judgment on December 11, 2020. In the alternative, the defendants sought a partial final judgment for counts one and two of the amended complaint. The defendants cited the Court's approval of the joint adjudication plan, which established procedures for the prompt processing of SIV applications. Because the plaintiffs had been seeking redress for delayed processing of SIV applications, the defendants argued that accepting the plan effectively already rendered a final judgment — plaintiffs had received the relief sought and there was "simply nothing more for the court to adjudicate."
Executive Review of the SIV Programs and the Second Adjudication Plan
Then, on February 2, 2021, President Biden signed Executive Order 14012, which required the Secretary of State, the Attorney General, and the Secretary of Homeland Security to conduct a comprehensive review to "identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers, as appropriate and consistent with applicable law." Further, on February 4, 2021, President Biden signed Executive Order 14013, which required the Secretary of State, in consultation with the Secretary of Defense and the Secretary of Homeland Security, to "complete a review of the Iraqi and Afghan SIV programs and submit a report to the President with recommendations of any concerns identified" within 180 days.
Believing that the executive orders might ultimately have a mooting effect on the litigation, the defendants requested a full stay of litigation in the March 5, 2021 joint status report to the court. The defendants stated that they intended to use this time to review the SIV programs, monitor SIV applications and adjudications, and engage in settlement negotiations with the plaintiffs. The plaintiffs objected to the stay, as well as the defendants’ use of the joint status report to make a unilateral request. On May 27, 2021, the court responded by ordering the parties to meet, confer, and file a joint status report on: 1) any recent developments affecting the litigation; 2) any portion(s) of the case the parties believed were mooted by the defendants' actions in response to the executive orders; and 3) any portion(s) of the case the parties wished to stay.
Upon joint motion from the parties, the court granted a temporary stay of the adjudication plan and monitoring reports so that the parties could pursue settlement negotiations. The parties later agreed to extend the stay to March 16, 2022. In light of the continuing discussions, the court subsequently denied without prejudice the defendants’ motion to dismiss and motion for final judgment. However, settlement talks began to stall, and by March 2022, the plaintiffs refused to agree to another extension of the stay. The defendants filed a motion requesting that the court continue the stay and allow the parties to file separate reports on whether intervening events had mooted any of the issues. In response, the plaintiffs filed a cross motion to lift the stay and opposed the defendants' motion for leave to file a response. The court granted each of these motions in part, extending the stay but requiring a joint response from the parties. The plaintiffs appealed this decision in June. The appellate court first denied the motion for summary reversal and the alternative requests for a stay and expedited consideration. 2022 WL 3136486. The appellate court subsequently dismissed the appeal in November for lack of jurisdiction. 2022 WL 19842476.
Meanwhile, on May 24, 2022, the defendants asked the court to reconsider its partial grant of summary judgment to the plaintiffs, conclude that there was no longer unreasonable delay, and vacate the adjudication plan. The government pointed to both external and internal changes over the past two years that streamlined the application process, as well as the administrative burdens that the adjudication plan created. In response, the plaintiffs filed a cross motion arguing that the changes in recent years did not justify disturbing the court's partial summary judgment decision or the adjudication plan. The plaintiffs additionally requested that any plan modifications be overseen by a magistrate judge, and that the court enforce and clarify its partial summary judgment decision by lifting the stay, ordering the government to report on all class members' statuses within 30 days, imposing additional tracking and reporting measures, and declaring that the adjudication plan covered class members added since 2020.
On November 30, 2022, the court granted both of these motions in part, reconsidering its prior partial grant of summary judgment to the plaintiffs. 643 F.Supp.3d 148. While finding that the government had made some alterations to the SIV visa adjudication process, the court concluded that the government had continued to engage in unreasonable delay. Thus, instead of terminating relief, the court instead temporarily referred the case to a magistrate judge to oversee the development of a new plan that included new plaintiffs who had recently joined the class as a result of consolidation. The court ordered that the government submit both a report detailing the progress of the plaintiffs' applications through the application process and a new adjudication plan. The court stayed the original adjudication plan while the parties developed a new plan, but cautioned the government that significant delay or noncompliance could result in the stay being lifted. Magistrate Judge Moxila A. Upadhyaya was assigned to oversee the development of the new adjudication plan and limited discovery related to that plan. The defendants appealed these orders. Oral argument was scheduled for November 3, 2023.
While the appeal remained pending, in February 2023, the government filed its proposed revised adjudication plan. Per the court’s order, the plaintiffs filed their objections to the plan the following month, arguing that the defendants had not attempted to justify the changes they sought and had omitted some required elements of the plan, including timelines at major steps of the SIV application process for Afghan applicants and class identification.
This case is ongoing.
Summary Authors
Alexander Walling (7/24/2018)
Nathan Santoscoy (3/5/2019)
Mary Novakovic (11/7/2019)
Aaron Gurley (5/22/2020)
Eric Gripp (8/12/2021)
Brillian Bao (11/25/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/7150182/parties/afghan-and-iraqi-allies-v-pompeo/
Alagesan, Deepa (New York)
Attorney, Yamileth G. (District of Columbia)
Attorney, Robert H. (District of Columbia)
Attorney, Travis L. (District of Columbia)
Attorney, Christopher Westley (District of Columbia)
Austin, Kathryn S. (District of Columbia)
Dao, Thomas J (District of Columbia)
Grano, Kimberly Robin (District of Columbia)
Havaldar, Anika (District of Columbia)
Keaney, Melissa S. (California)
Kerr, Rebecca Curwin (District of Columbia)
Leitner, Shannon M. (New York)
Rhee, Wang Jae (District of Columbia)
Simeone, Justin C (District of Columbia)
Tsui, Mia (District of Columbia)
Attorney, Yamileth G. (District of Columbia)
Belsan, Timothy Michael (District of Columbia)
Boynton, Brian Matthew (District of Columbia)
Byerley, David J. (District of Columbia)
Carilli, Joseph F. Jr. (District of Columbia)
Counsel, DOJ Appellate (District of Columbia)
Davila, Yamileth G. (District of Columbia)
Halaska, Alexander James (District of Columbia)
Hunt, Joseph H. (District of Columbia)
Ingebretsen, Richard Gordon (District of Columbia)
King, Sean Lynden (District of Columbia)
Lawrence, R. Craig (District of Columbia)
Martin, William M. (District of Columbia)
McGuire, Caroline (District of Columbia)
Mueller, Ruth Ann (District of Columbia)
Peachey, William Charles (District of Columbia)
Platt, Steven (District of Columbia)
Attorney, Robert H. (District of Columbia)
Attorney, Travis L. (District of Columbia)
Attorney, Christopher Westley (District of Columbia)
Cagniart, Stephanie F. (District of Columbia)
Dempsey, Christopher Westley (District of Columbia)
Koukios, James M. (District of Columbia)
Landicho, Robert (District of Columbia)
Marwell, Jeremy C. (District of Columbia)
See docket on RECAP: https://www.courtlistener.com/docket/7150182/afghan-and-iraqi-allies-v-pompeo/
Last updated July 6, 2025, 8 a.m.