WASHINGTON (CN) — A D.C. Circuit panel on Friday upheld a modified plan to speed up the adjudication of visas for people from Iraq and Afghanistan who helped U.S. armed forces and faced threats from the Taliban for their service.
The three-judge panel affirmed U.S. District Judge Tanya Chutkan’s determination that complicating circumstances that arose since the original 2018 suit — such as the Covid-19 pandemic, the U.S. military withdrawal and the war in Ukraine — warranted modifying a 2020 adjudication plan, but not its termination.
The panel, made up of Chief U.S. Circuit Judge Sri Srinivasan and U.S. Circuit judges Cornelia Pillard and Gregory Katasas — two Barack Obama appointees and a Trump appointee, respectively — found that the State Department failed to prove Chutkan was legally compelled to kill the plan.
Katsas, writing the court’s opinion, acknowledged that the State Department had successfully argued to change the 2020 plan, but couldn't show that no continued judicial involvement was appropriate based on supposed improvements in processing between 2019 and 2022.
Katsas said such improvements held little weight as those who would benefit from the 2020 plan still have not had their applications processed.
“If the delay in these old applications was already unreasonable when the injunction was entered in June 2020, we struggle to see how changed circumstances could makes those delays not unreasonable some two years later,” the Trump appointee wrote. “But post-2020 changes do not retroactively convert past unreasonable delays into reasonable delays.”
The case stems from a 2018 class action — brought three years before the U.S. fully withdrew from Iraq and Afghanistan in 2021 — where the plaintiffs challenged the government’s failure to process their visas within the nine-month deadline required by Congress.
At the time of the complaint’s filing, there were at least 9,985 applicants with pending applications for Afghan special immigrant visas and at least 143 Iraqi applicants with pending special visa applications. According to a September 2023 State Department report cited in The Diplomat, that number has jumped to nearly 130,000 applications awaiting processing.
The U.S. withdrawal from Afghanistan in 2021 contributed in large part to that jump, Katsas noted, citing a 443% increase in the number of monthly visa applications under the Afghan Allies Protection Act.
Further, the closure of the U.S. embassy in Kabul in August 2021 and travel restrictions imposed by the Taliban have made conducting necessary interviews even more difficult, Katsas acknowledged.
In reviewing Chutkan’s decision, the panel applied a multi-factor test created in the 1984 case Telecommunications Research & Action Center v. FCC, which governs allegations of unreasonable delays in agency actions.
The State Department argued that the post-2020 changes have forced the agency to balance competing interests, such as resettling Iraqi and Afghan individuals in third-party countries, alleviating the humanitarian crisis in Ukraine and reducing the visa backlog caused by the pandemic.
Katsas agreed that agencies have limited resources, and any additional focus on one program could harm another, but that concern only goes so far.
“The government ticks off its multiple competing priorities, many of which arose after the district court’s 2019 and 2020 orders,” Katsas wrote. “But it has not explained with precision the personnel or resource tradeoffs that it faces, or why those constraints justify a complete end to this case.”
In fact, Katsas noted, Chutkan had accounted for such resource limitations in her orders, merely requiring the development of a joint adjudication plan and explanations rather than charges of contempt for any government failure to meet its deadlines.
With the panel’s decision, the case will return to Chutkan for further proceedings.
In a March 18 minute order, Chutkan scheduled a deadline in anticipation of the D.C. Circuit’s decision for the parties to propose next steps in the case. The two-week deadline gives the parties until June 21 to file.
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