UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA E.B. et al., Plaintiffs, v. Civil Action No. 19-2856 (TJK) U.S. DEPARTMENT OF STATE et al., Defendants. MEMORANDUM OPINION This case is about an interim final rule issued by the State Department that changed the requirements for individuals applying to the Diversity Visa Program, otherwise known as the visa lottery. Under the rule, individuals must possess a valid passport before they can participate in the lottery. Plaintiffs, two foreign nationals and their U.S.-based relatives, do not challenge the sub- stance of the rule. Rather, they take issue with the way it was adopted because it was not subject to the Administrative Procedure Act’s notice-and-comment procedures. Defendants have moved to dismiss, arguing that Plaintiffs fail to state a claim for which the Court can grant them relief because the rule was properly enacted. And Plaintiffs have moved for summary judgment, arguing to the contrary. For the reasons explained below, the Court finds that the rule was unlawfully promulgated without notice-and-comment procedures. Thus, it will deny Defendants’ motion to dismiss, grant Plaintiffs’ motion for summary judgment, and vacate the rule. Background A. Diversity Visa Program The Immigration and Nationality Act of 1990 (“INA”) established the Diversity Visa Pro- gram. Pub. L. No. 101-649, § 131, 104 Stat. 4978, 4997 et seq. (1990) (codified at 8 U.S.C. § 1153(c)). The law allows the State Department to issue 55,000 diversity visas annually to indi- viduals from countries and regions that have historically sent fewer immigrants to this country.1 See id.; 8 U.S.C. § 1151(e). The purpose is “to diversify the immigrant population in the United States.” Visas: Diversity Immigrants, 84 Fed. Reg. 25,989, 25,990 (June 5, 2019) (codified at 22 C.F.R. § 42.33). According to the State Department, the program “serves as a clear tool of diplo- macy and outreach to countries around the world.” Id. Potential immigrants are selected for the program “strictly in a random order established by the Secretary of State.” 8 U.S.C. § 1153(e)(2). The process begins with the diversity visa lottery. Interested foreign nationals must apply during a set registration window at least 30 days long, usually beginning sometime in early October and ending in early November. 22 C.F.R. § 42.33(b)(3). After the registration period ends, the State Department then sorts the entries into different world regions, 8 U.S.C. § 1153(c)(1)(F), and selects “through a randomized computer drawing” a certain number of registrants who “may then apply for a diversity visa or, if present in the United States, apply for adjustment of status,” 84 Fed. Reg. at 25,989. B. The Passport Rule The Secretary of State may issue regulations governing the information that lottery regis- trants must provide to the State Department. 8 U.S.C. § 1154(a)(1)(I)(iii). On June 5, 2019, the State Department promulgated the Passport Rule, which requires that individuals who seek to par- ticipate in the lottery possess a valid passport when they register. 84 Fed. Reg. at 25,989; see also 22 C.F.R. § 42.33(b)(viii). Before enactment of …
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