By Khorri Atkinson

Law360 (February 24, 2022, 8:30 PM EST) -- A D.C. federal judge sympathized Thursday with the Biden administration's claim that the buildup to the Russia-Ukraine conflict complicated the processing of diversity visas, but she also criticized the government for trying to lower the bar for winning a stay of her order instructing the State Department to process and issue nearly 1,000 delayed visas by the end of September. 

U.S. District Judge Tanya Chutkan spoke during a hearing conducted remotely on the government's bid for a stay pending appeal of her October 2021 preliminary injunction order to issue the delayed diversity visas by Sept. 30. Judge Chutkan sympathized with the State Department's contention that her ruling may affect the agency's ability to prioritize resources amid a historic backlog of immigrant visa applications.

U.S. Department of Justice attorney Cara Elizabeth Alsterberg argued that the U.S. Embassy in Warsaw, Poland, is facing immigrant visa backlogs of about 8,000 applications because it is absorbing workloads from embassies in Minsk, Belarus, and in Moscow amid Russian President Vladimir Putin's ongoing invasion of Ukraine, which began early Thursday.

Judge Chutkan told an attorney for the visa seekers that the lead-up to Russia's attack caused an "incredible surge" of visa applications and suggested the State Department is best positioned to "determine this country's visa needs and where the resources should go."

"Obviously, your clients have been waiting for a long time. The harm they have suffered is well established," the judge told Rafael Ureña of Morrison Ureña LC. "I know judges want to dive in and be activists about it, but we really can't. The State Department is best situated to determine this country's visa needs and where the resources should go, and I, as a district court judge, am not as equipped as they are, nor is it my job to make those kinds of decisions."

"We have a fast-moving foreign affairs situation where the State Department is saying we need to … have resources to address a current situation. Who am I to say no?" Judge Chutkan continued. 

But Ureña rejected the notion that Judge Chutkan's order is impeding the department's ability to help others. He said his clients have been waiting too long for their visas.

"There are 966 visas preserved by this court's order, over 27 embassies, and they have been given 12 months to adjudicate them," the attorney said. "That is three visas a month per embassy. To say you are imposing a burden on the State Department that doesn't allow them to have the discretion to help other visa applicants doesn't square with the facts."

Under the diversity visa program, up to 50,000 applicants from countries with low rates of immigration to the U.S. are chosen at random annually as green card winners. Judge Chutkan is one of two D.C. federal judges — in two separate tranches of litigation brought by winners of the 2020 and 2021 diversity visa lottery — who ordered the State Department to process over 10,000 diversity visas that have been on hold throughout the COVID-19 pandemic. 

The agency argued in its motion for a stay earlier this month that it would have to divert limited consular resources away from regular operations to meet both judges' Sept. 30 deadline to finish processing the visas. It also criticized the judges for saving the diversity visas past their expiration date, saying federal immigration law "explicitly" states that visa lottery winners are only eligible for the green card during the year they win it.

The government has a similar motion pending before U.S. District Judge Amit P. Mehta.

D.C. Circuit precedent suggests that a party seeking a stay pending appeal must show a strong likelihood of prevailing on the merits of the appeal. However, the standard for a stay has three other factors: a showing by the movant that it will be irreparably harmed absent a stay; the prospect that others will be harmed if the court grants the requested relief; and that there's a public interest in granting the stay.

The "serious question" standard that the department presented isn't one the four traditional factors used in seeking stay. But under D.C. Circuit case law, a movant may obtain a stay by demonstrating it has raised a serious legal question that goes to the merit of the case.

In Thursday's hearing, Judge Chutkan questioned why the likelihood of success standard should be lowered to the "serious question" test.

The government did insist in court papers it would succeed on the merits, but Alsterberg told the judge Thursday that the motion contains "serious" legal questions for appeal, which are enough to justify a stay of last year's order.

When Judge Chutkan asked for case law to support that argument, Alsterberg pointed to the Alabama Association of Realtors et al. v. U.S. Department of Health and Human Services et al. , a now-resolved suit by a group of landlords who last year challenged the U.S. Centers for Disease Control and Prevention's nationwide moratorium on evictions. Alsterberg reasoned that a D.C. federal judge granted a stay pending appeal of her initial order vacating the eviction ban after finding that the strong likelihood of success factor was not met, but the CDC did raise "serious legal questions" for the D.C. Circuit to examine.

In this case, the serious legal questions in the State Department's pending motion include whether the agency's refusal to process and issue diversity visas to the plaintiffs is arbitrary and capricious and whether the department can be ordered to adjudicate visas from fiscal year 2020 after it has ended, according to the attorney.

Alsterberg also contended that the agency's information technology infrastructure — designed around the statutory expiration of diversity visa eligibility at the end of each fiscal year — is not capable of processing and adjudicating visas for previous fiscal years without congressional action. "The Department of State finds itself in an uncharted territory making these system modifications and having to divert resources," the government attorney added.

Judge Chutkan did not indicate which way she was leaning, but she acknowledged the myriad harms visa applicants have suffered as a result of delayed adjudication of their visas.

In the early weeks of the COVID-19 pandemic, then-President Donald Trump enacted a series of travel bans covering travelers from areas the U.S. deemed virus hotspots, such as China and most of Europe. He also blocked foreigners from moving to the U.S. on new green cards, including those allotted through the annual green card lottery.

Seventy-one visa lottery winners from the 2021 draw and their families who reside in Europe, South Africa and China lodged this case in March 2021, accusing the government of illegally stopping processing or issuing visas for banned individuals. To date, none of the visas Judge Chutkan's order reserved has been issued.

Ureña said the Biden administration is unlikely to succeed at the D.C. Circuit, and that the government appeal arguments disregard the harm to his clients. Pausing last year's order would not only delay visa processing for another year, but also undercut Judge Chutkan's own finding that the delayed processing of visas is unlawful, he said.

"They have been waiting long enough," Ureña said of his clients. "There is really no harm to [the government]. This is grandstanding about the actual effects of the court's order on the State Department."

The diversity visa applicants are represented by Curtis Lee Morrison and Rafael Urena of Morrison Urena LC, Abadir Jama Barre of Barre Law LLC and Kristina Ghazaryan of the Law Office of Kristina Ghazaryan.

The government is represented by William Herrick Weiland, Cara Elizabeth Alsterberg and William Bateman III of the U.S. Department of Justice.

The case is Rai et al. v. Biden et al., case number 1:21-cv-00863, in the U.S. District Court for the District of Columbia.

--Additional reporting by Alyssa Aquino. Editing by Jill Coffey.

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