Judge Rejects Green Card Ban Challenge And Class Cert. Bid

By Khorri Atkinson
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Law360 (June 23, 2020, 5:23 PM EDT) -- A D.C. federal judge on Tuesday denied a request to halt the Trump administration's April proclamation barring foreigners from moving to the U.S. on new green cards, ruling that a proposed class of U.S. citizens and permanent residents challenging the order failed to show members have been hurt.

U.S. District Judge Amit P. Mehta rejected the three plaintiffs' bid for a temporary restraining order and class certification, saying in a 21-page order that he could not examine the merits of their motions "because they have not shown at this stage in the proceedings that they have standing nor that their claims are ripe and not moot."

The judge said two beneficiaries of two green card holders of Mexican origin have recently received their visas and immigrated to the U.S. after their once-rejected applications were ultimately approved under the national interest exception to President Donald Trump's proclamation.

Meanwhile, claims asserted by the third plaintiff, a U.S. citizen from El Salvador attempting to file for her son, are not yet ripe for judicial review, the judge added. The son's green card application was delayed due to the temporary closure of the U.S. Embassy in San Salvador in response to the COVID-19 outbreak, and the family did not complete their medical appointments at the time of the lockdown, the judge said. The order also noted that the Embassy had rescheduled medical examinations for June 17 and that the family was instructed to reschedule the visa interview for any time after June 23.

The green card ban came in response to high U.S. unemployment as a result of the coronavirus pandemic.

Tuesday's ruling came less than a day after Trump announced that he will bar foreign citizens from moving to the U.S. on a number of work visas, including the H-1B specialty occupation visa, through the end of 2020. He said it would free up 525,000 jobs for Americans, and that the visa suspension takes effect on June 24.

The plaintiffs lodged their court action in May, alleging that even though the U.S. Department of State's policy to grant emergency consular services to applicants who may be eligible for an exception under the proclamation, their beneficiaries' requests for emergency interviews have gone unfulfilled and that their 21st birthdays were quickly approaching. At 21, beneficiaries are no longer considered dependents and would be forced to wait in the yearslong line for adult children to secure green cards, the plaintiffs say.

But Judge Mehta concluded that "record evidence before the court suggests that defendants' enforcement of the proclamation has, at most, funneled plaintiffs' beneficiaries' applications into a different administrative channel that carries no greater burdens or risks of denials, at least as to potential age-outs."

"Plaintiffs have not shown beyond mere speculation that their beneficiaries' consideration under the national interest exception will imminently cause them harm," the judge said.

But the judge noted that he will retain jurisdiction over the case while visa application for the plaintiff proceeds. Judge Mehta said he declined to certify the proposed class because the suit "was never justiciable to begin with."

The government did not immediately reply Tuesday to a request for comment. 

Jesse Bless, the American Immigration Lawyers Association's litigation director, who's representing the plaintiffs, told Law360 he's pleased with the government recognizing the need to protect the beneficiaries. But he also noted Trump's decision Monday to bar H-1B visas for highly skilled workers, H-2B guest-worker visas, J trainee visas and L intracompany transferee visas, along with those for their spouses, has extended the April proclamation to December. 

"We stand ready to continue to the fight to show that the president does not have a blank check to rewrite the nation's immigration law," the attorney said. 

Bless, who previously worked for the U.S. Department of Justice's Office of Immigration Litigation, told Law360 last month that the federal government was taking measures to moot out plaintiffs' claims.

Tuesday's ruling marked at least the third time a federal judge rejected legal challenges to Trump's proclamation, which primarily targets the relatives of U.S. permanent residents, American citizens' parents and diversity visa winners, while exempting foreign investors, U.S. citizens' spouses and minor children as well as health care workers.

Last month, Judge Mehta, who's overseeing another case brought by Americans and green card holders seeking to sponsor foreign relatives, as well as foreigners who won green cards in the diversity lottery, ruled that the challengers didn't offer evidence that their immigration cases had been halted as a result of the proclamation.

He said their claims to have standing to sue "fail right off the bat." The government asked the judge this month to dismiss the case. 

And in April, an Oregon federal judge refused to halt the ban in another challenge levied by the AILA, finding that the ban was unrelated to the suit's initial challenge to a separate proclamation that barred foreigners abroad from getting green cards if they couldn't prove they could afford health insurance.

The families are represented by 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 Innovation Law Lab and Andrew J. Pincus, Matthew D. Ingber and Cleland B. Welton II of Mayer Brown LLP.

The federal government is represented by Thomas Benton York and James Wen of the DOJ's Office of Immigration Litigation.

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.

--Additional reporting by Suzanne Monyak. Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

GOMEZ et al v. TRUMP et al


Case Number

1:20-cv-01419

Court

District Of Columbia

Nature of Suit

Administrative Procedure Act/Review or Appeal of Agency Decision

Judge

Amit P. Mehta

Date Filed

May 28, 2020

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