DC Judge Shields Diversity Visa Winners From Ban
By Suzanne Monyak and Alyssa Aquino
Law360 (September 4, 2020, 6:29 PM EDT) — A D.C. federal judge on Friday temporarily barred the Trump administration from applying its visa ban to foreign citizens who won green cards in the Diversity Visa lottery, finding that the U.S. Department of State‘s refusal to process their visas is likely illegal.
U.S. District Judge Amit P. Mehta said the federal government had “unreasonably delayed processing” of green cards won by a group of lottery winners and their relatives, who had found themselves unable to secure visas to move to the U.S. under President Donald Trump’s travel restrictions.
The judge ordered the government to “undertake good-faith efforts” to “expeditiously process and adjudicate” their green card applications by Sept. 30, the end of the government’s fiscal year.
“The department is aware of the court’s ruling and is reviewing the decision with the Department of Justice,” a State Department spokesperson told Law360 on Saturday.
The order came down in five consolidated lawsuits targeting Trump’s April and June proclamations barring certain foreign citizens seeking green cards and work visas from abroad from entering the U.S. The plaintiffs — a group of over 1,000 American citizens with overseas relatives, U.S.-based employers, diversity lottery winners and foreign nationals with approved petitions for temporary worker visas — had argued that Trump had overstepped his authority when he blocked them from entering the U.S.
Judge Mehta was unconvinced that the proclamations were unconstitutional.
His decision deferred to the U.S. Supreme Court‘s 2018 ruling in Trump v. Hawaii , where the justices upheld Trump’s previous travel ban against foreigners from a handful of countries. By upholding the ban — which immigration advocates decried as a “Muslim ban” — the high court held that the president may block foreigners from entering the U.S. if he finds that their entry is “detrimental to the interests of the United States.”
“Diversity visa lottery winners are people who have come to this nation, like millions before, to seek a better life for themselves and their families, and to pursue the American Dream. They do not deserve to be caricatured as common criminals, or to be used as a political wedge issue,” Judge Mehta wrote. “But for the same reasons that the court in Trump v. Hawaii rejected a similar challenge based on purported religious animus, the court does so here, too.”
When Trump set the April travel restrictions, he said they were in response to high unemployment within the U.S., and he “amplified” that reasoning in the June ban, Judge Mehta said.
The plaintiffs pushed back against Trump’s rationale and provided evidence that new immigrants wouldn’t displace American workers, according to court filings. But “however persuasive” those arguments were in a policy forum, the courts are “decidedly constrained,” the judge said.
“If the president were to act on ‘plainly false pretenses,’ as plaintiffs fear, Congress possesses ample powers to right that wrong. The scope of judicial review is circumscribed,” he said.
However, Judge Mehta was swayed by claims that the State Department unlawfully halted progress on the foreign citizens’ applications based on Trump’s orders. Though the orders will prevent the applicants from entering the U.S. through the end of the year, they don’t prevent the State Department from issuing visas. Therefore, the individuals argued that the State Department had enacted its own “no visa policy” outside the normal rulemaking processes, according to the order.
The government argued there was no secret policy suspending the applications, but Judge Mehta saw otherwise.
“Defendants, through a cluster of guidance documents, cables and directives, have ordered consular offices and embassies to cease processing and issuing visas for otherwise qualified applicants,” he wrote. “That is paradigmatic final agency action.”
Further, the State Department had provided “no justification” for why it had suspended visa processing, the judge said. In the case of the lottery winners, the State Department had also failed to explain why it had stopped work on their visas. If the lottery winners don’t receive their visas by Sept. 30, immigration law dictates that they lose the visas entirely.
The State Department can’t “effectively extinguish” this year’s lottery program “by simply sitting on its hands letting all pending diversity visa applications time out,” the judge said.
Though Judge Mehta ordered relief for the diversity lottery winners, he declined to do so for the other visa seekers, including those requesting work visas and green cards through family members.
The other visa seekers were “likely” to win on their claims against the State Department, but the court couldn’t order relief for them, the judge said.
“The family-visa plaintiffs identify vast harms stemming from being separated from their family members,” the judge said. “The court has no doubt that this separation has been devastating … but this harm would continue to flow from the proclamations’ ban on entry, even if the court were to grant relief.”
The judge ordered the government to update the court on Sept. 25 on how many diversity visas have yet to be issued. The court will reconsider during that briefing whether to order the State Department to reserve any unprocessed diversity visas for the next year, the order said.
The Justice Action Center’s Karen Tumlin, one of the plaintiffs’ attorneys, said in a statement that diversity visa applicants can “finally” exhale.
“This court decision will result in these immigrants being able to pursue their dreams in the United States, and help boost our economy,” Tumlin said. “We’re disappointed, though, that the court didn’t block the ban for our other plaintiffs who are suffering. But this isn’t over. We won’t rest until the entirety of the immigration ban is stopped.”
The diversity visa winners and their beneficiaries are represented by Rafael Ureña, Curtis Lee Morrison and Abadir Barre of the Law Office of Rafael Ureña in the Mohammed and Fonjong suits, Charles H. Kuck of Kuck Immigration Partners LLC in the Aker suit, Jesse M. Bless of the American Immigration Lawyers Association, Karen C. Tumlin and Esther H. Sung of the Justice Action Center, Laboni A. Hoq of the Law Office of Laboni A. Hoq, Stephen Manning, Nadia Dahab and Tess Hellgren of the Innovation Law Lab and Andrew J. Pincus, Matthew D. Ingber and Cleland B. Welton II of Mayer Brown LLP in the Gomez suit, and Geoffrey Forney of Wasden Banias LLC in the Panda suit.
The government is represented by Christopher Thomas Lyerla, James Wen and Thomas Benton York of the U.S. Department of Justice‘s Civil Division and Robert A. Caplen and William Chang of the U.S. Attorney’s Office for the District of Columbia.
The case is Gomez et al. v. Trump et al., case number 1:20-cv-01419, in the U.S. District Court for the District of Columbia.
–Editing by Breda Lund.
Update: This story has been updated with comment from the State Department.
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