U.S. District Judge Amit P. Mehta's order covered four related diversity visa suits representing tens of thousands of foreign nationals and their dependents who won the chance to relocate permanently to the U.S. in fiscal year 2021, only to find their hopes dashed first by a Trump administration bar to entry, and then by the State Department's deprioritization of their cases.
With the fiscal year set to end on Sept. 30, Judge Mehta directed the Biden administration to move diversity visa winners from their current spot at the bottom of the State Department's to-do list and get to work processing their applications, hinting that further relief might come closer to the end of the month.
"Until the court and the parties have a better idea of how many diversity visas the State Department will process over the next few weeks, it would be premature to set aside diversity visas numbers. The court therefore orders defendants to expeditiously process and adjudicate diversity visas prior to Sept. 30, 2021, and will revisit the issue of reserving visas closer to the end of the 2021 fiscal year," he wrote.
Attorneys for the fiscal year 2021 selectees viewed the order as a mixed bag in statements to Law360.
"We're really grateful that the court saw through the government's arguments and justifications for basically eliminating the diversity visa program," attorney Aaron C. Hall, counsel for one set of plaintiffs, said Thursday. "We're still disappointed that he didn't prioritize the plaintiffs who brought the litigation."
Under Judge Mehta's order, 2021 diversity visa lottery winners are no longer subject to a processing hierarchy the State Department established in November 2020, which placed them in Tier Four, beneath such categories as adoptions and fiancé visas.
Thursday's order was careful not to upset the rest of the visa ranking system, which the State Department has called its best answer to addressing visa backlogs amassed during COVID-19 consular shutdowns while prioritizing family reunification as mandated by the Immigration and Nationality Act.
With diversity visa winners now removed from State's standard operating procedure, Hall said the department would likely have to dedicate staff specifically to cases like his clients'.
"There's no order that diversity visas necessarily be the top, but you can't consider it the bottom, and you have to undertake good faith efforts to expeditiously process before the 30th, which to me is a directive that you need to devote more time and resources to these immediately," Hall said.
Hall's co-counsel, Charles H. Kuck, expressed confidence that more judicial relief was on the way.
"We believe that prior to year's end, he will reserve all of the unused DV-2021 visas for issuance in the next fiscal year, thus maximizing our plaintiffs' chance to obtain a visa issuance. One thing is clear — that without this litigation, there would have been no DV-2021 visas issued this last fiscal year," Kuck said.
Curtis Lee Morrison, who represents a cohort of more than 11,000 frustrated diversity visa winners in Goodluck et al. v Biden et al., sent Law360 a list of 68 consulates that have yet to issue a single diversity visa to his clients, including major diversity visa processing hubs such as Moscow and Khartoum, Sudan.
Along with Judge Mehta's processing order, Morrison's clients also won a preliminary injunction. The judge found them likely to succeed on their claims that the State Department's position that a proclamation by former President Donald Trump barring entry for diversity visa winners also blocked them from receiving visas violated the law, that the government unlawfully delayed processing their petitions, and that State's prioritization scheme was arbitrary and capricious.
"This order is an important step to restoring the immigration system to the way it was before Trump," Morrison said. "Now we need to see if the Biden administration cooperates in implementing the order, or continues to fight immigrants, and defend Trump policies, like they have for the last eight months."
Representatives for the State Department did not respond to a request for comment Thursday. The U.S. Department of Justice declined to comment.
The Goodluck lottery winners and the consolidated lottery winners from Rosales v. Biden are represented by Curtis Lee Morrison, Jonathan Joshua Aftalion and Jana al-Akhras of the Law Office of Curtis Morrison, Abadir Jama Barre of Barre Law LLC, Kristina Ghazaryan of the Law Office of Kristina Ghazaryan, and Rafael N. Ureña.
The Filazapovich lottery winners are represented by Nicolette Glazer of the Law Offices of Larry R. Glazer.
The Goh lottery winners are represented by Aaron C. Hall and Jeffrey Dean Joseph of Joseph & Hall PC, and Charles H. Kuck of Kuck Immigration Partners LLC.
The government is represented by Cara Elizabeth Alsterberg, William Bateman III, Diana Viggiano Valdivia, William Herrick Weiland, Thomas Duffey and Joseph F. Carilli Jr. of the U.S. Department of Justice.
The cases are Goodluck et al. v. Biden et al., Rosales et al. v. Biden et al., Filazapovich et al. v. Department of State et al. and Goh et al v. Department of State et al, case numbers 1:21-cv-01530, 1:21-cv-01874, 1:2021-cv-00943 and 1:21-cv-00999, in the U.S. District Court for the District of Columbia.
--Editing by Robert Rudinger.
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