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Case Name Afghan and Iraqi Allies v. Pompeo IM-DC-0051
Docket / Court 1:18-cv-01388-TSC ( D.D.C. )
State/Territory District of Columbia
Case Type(s) Immigration and/or the Border
Attorney Organization International Refugee Assistance Project (IRAP)
Case Summary
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 ( ... read more >
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 plaintiff’s 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 had 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; 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.

The plaintiffs in this case alleged that their claims were 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’s 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.

The court denied the government’s motion to dismiss on January 30, 2019. The court held 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 a benchmark to assess whether the delays were unreasonable. 2019 WL 367841.

On September 20, 2019, Judge Chutkan converted the plaintiffs’ motion for a preliminary injunction to a motion for summary judgment, which she granted in part and denied in part. The court granted declaratory and injunctive relief, stating that the defendants’ delays in the processing and adjudication of the plaintiffs’ SIV applications are unreasonable in light of the RCIA and the AAPA. 2019 WL 4575565 (D.D.C.).

The court also 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 the plaintiffs must file any objections to the plan within twenty-one days. Once the court finally approves the plan, the defendants will be required to submit progress reports every sixty days. The court denied specifics of the plaintiffs’ complaint, such as requiring the defendants to have their drafted plan checked and approved by the plaintiffs prior to submission to the court. The government sought reconsideration on the order on October 18, 2019.

On February 5, 2020, Judge Chutkan issued an opinion and order denying reconsideration. Judge Chutkan concluded that the defendants' assertions, which regarded when the nine-month timetable begins and the court's error in finding the defendants unreasonably delayed adjudicating applications, were unpersuasive and that there was no basis for reconsideration. 2020 WL 587878.

On the same day, Judge Chutkan issued an opinion and order granting the plaintiffs' motion for class certification, defining the relevant class as the class the plaintiffs requested in their motion. 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 Defendants into compliance with that statutory duty." 2020 WL 590121.

On February 10, 2020, the court set a deadline for March 5 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 order for 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. Judge Chutkan 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, 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 is based on inferences as to what the Court’s order requires.

Days later, on March 23, defendants filed a motion to decertify the class. Defendants asserted that changes had been made under the AAPA; the manner in which the applications of Afghan class members are processed had been modified to "give preferential treatment to higher-priority applicants." Defendants argued that "[i]n light of the impact of these statutory changes to the AAPA, Plaintiffs can no longer demonstrate commonality, typicality, or adequacy, and class-wide relief is inconsistent with the statute." Plaintiffs argued that the parties had already briefed this change and that the Court had already rejected the argument.

On April 6, the government filed a motion to dismiss in part plaintiffs' amended class complain for lack of subject matter jurisdiction; the motion argued that three of plaintiffs' claims were moot due to the Court granting relief under the APA and the defendants designating coordinators as required by. the RCIA and the APA.

On April 15, Judge Chutkan issued an order requiring the parties to file a joint proposed adjudication plan. Judge Chutkan ordered that the proposed plan "target defendant’s processing time rather than applicant deadlines" and include the following:
  • "A clear basis by which the court and Plaintiffs can evaluate Defendants’ progress in remedying the unreasonable delay such as target timeframes for processing class member applications and interim benchmarks for achieving those targets"
  • "A proposal for identifying class members consistent with the class certification order"
  • "A proposed format for progress reports"
Judge Chutkan concluded that defendants' conduct did not warrant a finding contempt but that the proposed adjudication plan was misguided and inadequate; "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."

Following negotiations, the parties submitted a proposed joint adjudication plan on May 21. 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 does not meet the target timeframe, explain why performance was lacking.

As of May 22, the joint proposed adjudication is pending approval by the court. More coming soon.

Alexander Walling - 07/24/2018
Nathan Santoscoy - 03/05/2019
Mary Novakovic - 11/07/2019
Aaron Gurley - 05/22/2020


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Issues and Causes of Action
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Issues
Content of Injunction
Other requirements regarding hiring, promotion, retention
Preliminary relief granted
Reporting
Defendant-type
Law-enforcement
General
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Terrorism/Post 9-11 issues
Wait lists
Immigration/Border
Admission - procedure
Visas - procedures
National Origin/Ethnicity
Arab/Afgani/Middle Eastern
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Mandamus, 28 U.S.C. § 1361
Defendant(s) Department of Homeland Security
Department of State
Plaintiff Description Afghan and Iraqi individuals who work or worked for the U.S. government to support the U.S. missions in their home countries and filed Special Immigrant Visa (SIV) applications for admission to the U.S.
Indexed Lawyer Organizations International Refugee Assistance Project (IRAP)
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Declaratory Judgment
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Order Duration 2019 - n/a
Filed 06/12/2018
Case Ongoing Yes
Additional Resources
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Docket(s)
1:18-cv-1388 (D.D.C.)
IM-DC-0051-9000.pdf | Detail
Date: 03/05/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Memorandum and Order [ECF# 7] (D.D.C.)
IM-DC-0051-0002.pdf | Detail
Date: 06/12/2018
Source: PACER [Public Access to Court Electronic Records]
IRAP & Freshfields File Class Action Challenge to Egregious Processing Delays in Special Immigrant Visa Program for Afghan and Iraqi Allies
IM-DC-0051-0003.pdf | External Link | Detail
Date: 06/13/2018
Amended Class Action Complaint [ECF# 23]
IM-DC-0051-0001.pdf | Detail
Date: 07/12/2018
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 47] (2019 WL 367841) (D.D.C.)
IM-DC-0051-0004.pdf | WESTLAW | Detail
Date: 01/30/2019
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 75] (D.D.C.)
IM-DC-0051-0005.pdf | Detail
Date: 09/20/2019
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 86] (2020 WL 587878) (D.D.C.)
IM-DC-0051-0006.pdf | WESTLAW | Detail
Date: 02/05/2020
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 88] (2020 WL 590121) (D.D.C.)
IM-DC-0051-0007.pdf | WESTLAW | Detail
Date: 02/05/2020
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Chutkan, Tanya Sue (D.D.C.) show/hide docs
IM-DC-0051-0004 | IM-DC-0051-0005 | IM-DC-0051-0006 | IM-DC-0051-0007 | IM-DC-0051-9000
Howell, Beryl Alaine (D.D.C.) show/hide docs
IM-DC-0051-0002
Plaintiff's Lawyers Alagesan, Deepa (New York) show/hide docs
IM-DC-0051-0001 | IM-DC-0051-9000
Curwin, Rebecca (New York) show/hide docs
IM-DC-0051-0001 | IM-DC-0051-9000
Greene, Olivia P. (New York) show/hide docs
IM-DC-0051-9000
Hirose, Mariko (New York) show/hide docs
IM-DC-0051-0001 | IM-DC-0051-9000
Keaney, Melissa S. (California) show/hide docs
IM-DC-0051-9000
Leitner, Shannon M. (New York) show/hide docs
IM-DC-0051-0001 | IM-DC-0051-9000
Livshiz, David Y. (New York) show/hide docs
IM-DC-0051-0001 | IM-DC-0051-9000
Martin, Linda H. (New York) show/hide docs
IM-DC-0051-0001 | IM-DC-0051-9000
Wilson, Allison (New York) show/hide docs
IM-DC-0051-0001 | IM-DC-0051-9000
Defendant's Lawyers Carilli, Joseph F. Jr. (District of Columbia) show/hide docs
IM-DC-0051-9000
Martin, William M. (District of Columbia) show/hide docs
IM-DC-0051-9000
Other Lawyers Young, Evan A. (Texas) show/hide docs
IM-DC-0051-9000

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