The Government has filed its response to our September 28th lawsuit on the Visa Bulletin. As expected, the government chose to file a Motion to Dismiss. Per our agreed stipulation with the government, we will have until January 8th to file an amended complaint taking into account the government’s Motion to Dismiss and information we have gained since filing the lawsuit. The government will then have an opportunity to file a new answer after that.
I’ve uploaded the Motion to Dismiss here.
The MTD largely echoes arguments made earlier in the Government’s response to our Motion for Temporary Restraining Order. The argument largely focuses on the Visa Bulletin’s announcement not being a final agency action and no legal consequences flow from its publication. The government does make a new argument that even if the October Visa Bulletin was a final agency action, because new filing filing charts have been issued with new Visa Bulletins which constitute later actions.
The Government also argues that the Department of State’s “reasonable estimates” are not subject to judicial review. More broadly, they argue that DOS’ determinations in the Visa Bulletin are not subject to a court’s review.
Regarding the Administrative Procedure Act claims, the Government argues that they did not act in an arbitrary and capricious way because it adequately explained why it revised the Visa Bulletin.
With respect to our subdelegation claim, the Government argues that their decisions were made based on lawful consultations between DOS and DHS and DOS has not assigned DHS any improper role in estimating visa issuance for purposes of publishing dates in the Visa Bulletin charts.
The Government repeats its earlier statement that the plaintiffs have no liberty interest that was created as a result of the issuance of the initial October Visa Bulletin. But they are making some new arguments. First, since the October bulletin marked the debut of filing charts, the historical patterns we cited are not applicable. Second, because the September bulletin had cut off dates back in 2006, plaintiffs weren’t expecting to be able to file adjustment applications except for the brief period from September 9th to September 25th. Third, the rights to the extent they exist didn’t start until October 1st, the date when adjustment applications could be accepted. And to the extent there was a liberty interest, it was insufficient to satisfy a due process claim.
My initial reaction is that there are no surprises here and we have responses for all of the government’s arguments. We’ll have a lot to work with in our next filing.