UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) KAROLINA RAI et al., ) ) ) Plaintiffs, ) ) v. ) Civil Action No. 21-cv-863-TSC ) JOSEPH R. BIDEN, in his official capacity ) as President of the United States of America, ) et al., ) ) Defendants. ) ) MEMORANDUM OPINION Plaintiffs are 2021 diversity visa program selectees and their derivative beneficiaries who reside in Europe, South Africa, Namibia, and China. Plaintiffs allege that the State Department and its Kentucky Consular Center unlawfully implemented two Presidential Proclamations to suspend the processing, adjudication, and issuance of their 2021 diversity visa applications. Plaintiffs have moved for a preliminary injunction, ECF No. 8, asserting that if the State Department does not issue Plaintiffs visas before midnight on September 30, 2021, the State Department cannot issue those visas without a court order. The government has moved to dismiss for lack of subject matter jurisdiction. ECF No. 38. For the reasons stated below, the court will GRANT in part and DENY in part Defendants’ motion to dismiss and will GRANT in part and DENY in part Plaintiffs’ motion for preliminary injunction. 1 I. BACKGROUND A. The Diversity Visa Program Congress created the diversity visa program under the Immigration and Nationality Act (“INA”) to allow for more immigration to the United States from countries with traditionally low rates of immigration. See 8 U.S.C. §§ 1153(c)(1)(B)(ii), 1153(c)(1)(E)(ii). The program permits the State Department to issue up to 50,000 visas to individuals from specified countries.1 8 U.S.C. § 1151(e). Millions of people enter the lottery every year. See U.S. Dep’t of State, Diversity Visa Program, DV 2019-2021: Number of Entries During Each Online Registration Period by Region and Country of Chargeability.2 Those selected for the program are not guaranteed to receive a visa—only the opportunity to apply for one. A successful lottery applicant is eligible to receive a visa only during the fiscal year in which she applied and was selected. 8 U.S.C. § 1153(e)(2); 22 C.F.R. § 42.33(f). If the selectee does not receive a visa by the end of the fiscal year, then they are out of luck: “Because the diversity visa program restarts each fiscal year, consular officers may not issue diversity visas after midnight on September 30 of the” fiscal year in which the visa applicant was selected. Id. B. The Adjudication Process The diversity visa program is administered at the State Department’s Kentucky Consular Center (“KCC”). See 9 Foreign Affairs Manual (“FAM”) 502.6-4(c)(1)(a). After successful 1 The statute makes available up to 55,000 diversity visas annually, but 5,000 of those are reserved for aliens covered by the Nicaraguan Adjustment and Central American Relief Act of 1997. See Pub. L. No. 105–100, 111 Stat. 2193 (1997). 2 Available at https://travel.state.gov/content/dam/visas/Diversity-Visa/DVStatistics/DV- applicant-entrants-by-country-2019-2021.pdf. 2 applicants are notified of their selection and visa number, they must then submit a DS-260, Immigrant Visa and Alien Registration Application, and various supporting documents to the KCC. See 9 FAM 502.6-4(d)(1)(a), (b). When the KCC confirms that an applicant …
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