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Law360 (February 4, 2021, 10:06 PM EST ) Winners of the 2020 Diversity Visa Program lottery are pressing a D.C. federal judge to rule against former President Donald Trump's still-intact travel bans and order the release of 9,000 green cards.
They further sought court orders requiring the U.S. Department of State to issue tens of thousands of more diversity visas, claiming Wednesday that the executive branch had lied to the court when it pinned decreased visa processing on the COVID-19 pandemic.
"Most businesses operating during the COVID-19 pandemic have found a way to open back up, including this court," the visa winners said. "[T]he State Department, unlike sibling agencies ... has shut down consular posts and wholesale stopped the adjudication of diversity visas — despite the availability of protection from the virus such as [Plexiglas] shields, masks, social distancing and vaccines."
The visa winners are among the 55,000 individuals allotted green cards through the fiscal year 2020 Diversity Visa lottery. They are also among the many immigrant groups temporarily barred from entering the country under Trump's April and June 2020 proclamations, which he issued citing the pandemic-induced economic recession and extended through this March.
Though President Joe Biden rescinded Trump's other travel ban on individuals from several Muslim-majority countries, he has left the COVID-19 bans intact.
Alongside immigration advocates and business groups, the visa winners have mounted a constitutional attack on the bans, arguing Trump used the pandemic as a smokescreen to keep out immigrants. Both the D.C. and Ninth circuits are reviewing the constitutionality of the bans.
But the visa winners on Wednesday pressed U.S. District Judge Amit Mehta to rule in their favor based on other grounds. They claim that Trump's bans didn't render them ineligible for visas, but by stopping work on the diversity visa applications, the State Department went beyond what the president authorized and flouted federal administrative law.
That argument has already convinced Judge Mehta to order the State Department to "expeditiously process and adjudicate" the diversity visa applications on Sept. 4, 2020.
At the time, the State Department had tens of thousands of visa applications left to process before they expired on Sept. 30, 2020, spurring visa winners to petition the court to preserve 30,000 unissued visas until the case wrapped up. Judge Mehta ultimately saved 9,095 diversity visas, but they will only be issued if the visa winners win their case.
In launching their summary judgment bid, the visa winners are pulling for more green cards, arguing that the situation has changed. Abadir Barre, one of their attorneys, told Law360 on Thursday that more information came out towards the end of 2020 on visa backlogs in consulates.
"It's a little bit more clear that it wasn't COVID, it was never COVID," Barre said. "It was those policies and procedures in place under the Trump administration to wholesale stop immigration to the U.S."
On Jan. 20, the same day Trump left office, the State Department asked Judge Mehta to rule in their favor and end the litigation.
The government claimed that the State Department has historically considered anyone subject to the kind of ban the diversity visa winners face as ineligible for visas. With that precedent in mind, the State Department stopped work on their visa applications, the government said.
It argued that the State Department's decision was practical: By freezing applications for the green card winners, the State Department was avoiding the "confusing" situation of issuing a visa to someone who couldn't yet enter the country.
But the lottery winners countered that, based on the evidence before the court, the State Department didn't consider the "historical precedent" when it stopped work on the applications. Moreover, they pointed out that anyone who obtained a visa wouldn't waste the "significant resources" of attempting to enter the U.S. while the bans were in place.
The State Department didn't respond Thursday to requests for comment.
The visa winners are represented by Philip Duclos, Curtis Lee Morrison, Rafael Ureña, Kristina Ghazaryan and Abadir Barre of the Law Office of Rafael Ureña, and Charles H. Kuck of Kuck Baxter Immigration LLC.
The government, under the Trump administration, is represented by James Wen and Aaron Goldsmith of the U.S. Department of Justice's Civil Division.
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 Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
