Babaria v. Blinken

Background

The plaintiffs are Indian citizens who reside in the United States in nonimmigrant status and submitted Form I-485 applications to adjust their status based on EB-2 employment-based immigrant visas chargeable to India. Each plaintiff had a visa number available when applying, but no longer had one available when the applications were to be adjudicated.

The Department of State allocates immigrant visas within limits set by Congress. When demand exceeds the available number in a category, the Department of State treats the category as oversubscribed and sets a final action date. Only applicants whose priority dates are before that date are considered to have visa numbers available. When the final action date moves backward, the change is called retrogression, and an application that remains pending cannot be approved until the date becomes current again.

In September 2022, the Department of State told United States Citizenship and Immigration Services that the fiscal-year limits for EB-1, EB-2, and EB-3 visas had been reached, and United States Citizenship and Immigration Services stopped approving applications in those categories. The October 2022 Visa Bulletin moved the final action date for the plaintiffs’ Indian EB-2 category backward to April 1, 2012. The plaintiffs’ priority dates were between June 29, 2012, and November 17, 2014.

The Motion and Arguments

The plaintiffs sought a temporary restraining order and preliminary injunction requiring the defendants to continue adjudicating their adjustment-of-status applications and allocate visa numbers for them as the applications were approved. They argued that the retrogression policy was beyond the agencies’ legal authority and that a 1976 amendment to the Immigration and Nationality Act prevented the government from considering visa availability when adjudicating an application. They also alleged harms from delay, including limits on travel and career mobility, delayed eligibility to apply for citizenship, uncertainty, and possible family separation.

The government argued that the plaintiffs were seeking a decision on the merits through a preliminary injunction, were unlikely to succeed, could not show irreparable harm, and could not obtain visas because no visa numbers were available. It also argued that the case was moot.

Court’s Analysis

The court rejected the mootness argument. It explained that new visas become available in later fiscal years and that the plaintiffs’ applications remained pending. The court also stated that the plaintiffs’ challenge was not limited to visas from one particular fiscal year, and that arguing retrogression prevented a challenge to retrogression was circular.

The court nevertheless found that the plaintiffs had little likelihood of success on their claim under Section 706(1) of the Administrative Procedure Act. That provision permits a court to require an agency to take an action that the agency unlawfully withheld or unreasonably delayed, but the plaintiffs had not identified a specific processing deadline that the agencies were required to meet. Instead, they argued that the 1976 amendment required the agencies to adjudicate applications and issue visas even when no visas were available.

The court concluded that the text of the relevant statute did not support that interpretation. It also reasoned that the plaintiffs’ interpretation would conflict with Congress’s limits on the number of visas issued each fiscal year and would create a mismatch between the number of visas available and the number issued. The court therefore found that the plaintiffs had shown neither a likelihood of success nor serious questions on the merits.

The court further concluded that the requested injunction would be mandatory because it would require the government to take action. The plaintiffs had not shown the extreme or very serious harm required for that type of injunction. Although delay could cause harm, the plaintiffs would remain eligible for adjustment of status while their applications were pending, and it was unclear whether the requested injunction would repair the harm caused by processing delays.

Finally, the court found that the public-interest and balance-of-equities factors favored the government. The requested order could prioritize the plaintiffs over other immigrants, require the government to exceed congressional visa limits, or disrupt the system for counting available visas.

Disposition

The court denied the plaintiffs’ motion for a preliminary injunction. The opinion did not decide the final merits of the plaintiffs’ underlying claims; it ruled only on the request for preliminary relief.