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Law360 (August 12, 2020, 4:42 PM EDT) -- A D.C. federal judge on Wednesday ordered the federal government to hand over documents concerning the Trump administration's coronavirus travel ban to diversity visa winners who say the virus restrictions wrecked the lottery program.
The federal government has until Monday to hand over any policies, directives or orders that the U.S. Department of State gave its overseas consulates on how to roll out the travel ban, U.S. District Judge Amit P. Mehta said during a status hearing.
The government attorneys initially protested having to produce records, arguing that the diversity lottery winners who sued hadn't located a single State Department policy connecting delays in receiving their visas to President Donald Trump's coronavirus restrictions.
But Judge Mehta called that position untenable.
"The government can't ... argue that there's no final agency action simply by saying we're not going to produce any evidence that suggests there's final agency action," he said.
The order came down in four consolidated suits claiming that the State Department was illegally using Trump's coronavirus restrictions — which bar certain green card and visa holders, including diversity visa winners, from entering the U.S. — to halt progress on issuing visas to winners of the 2019 diversity lottery program.
The plaintiffs are among the thousands selected from a pool of millions to formally apply for the diversity visas, which allow a holder to stay and work in the U.S. indefinitely. Under federal law, if they don't obtain the visas by Sept. 30, the opportunity disappears entirely.
Recently, the plaintiffs asked the federal court to order the State Department to process the visa applications while the cases were being heard. James J. Wen, a Justice Department attorney, took note of those pending motions, saying it was inappropriate for the government to release the administrative record until the court resolved those requests.
Judge Mehta shot that argument down. "Their relief runs out in six weeks," he said. "We're not going to get through this [preliminary injunction] and [summary judgment] briefing before September 30. Everyone has to put their cards on the table now."
During a Friday hearing, the government attorneys argued that there was no evidence that could connect hold-ups in the lottery winners' visas to an alleged policy. The only record out there, the attorneys argued, is laid out in tweets and disjointed emails.
But on Wednesday, the government's legal team admitted that once Trump ordered the travel ban, the State Department — as a general policy — would have sent out official cables to its embassies and consulates with guidance over how to implement the order.
"I'm going to order the government to produce something that resembles an administrative record," Judge Mehta said, noting that the production would, at least, include the cable communications.
The judge, however, declined to order the government to submit witnesses for deposition, saying he found that type of discovery inappropriate for the case.
"It is a relief that Judge Mehta is lifting the veil on the government's utterly fanciful position that the Trump administration has not unilaterally terminated the congressionally mandated Diversity Visa Program," said plaintiffs' attorney Rafael Ureña. "Today's order will expose what is really going on at the State Department."
Representatives for the Justice Department didn't immediately respond to requests for comment.
In a separate Thursday hearing, U.S. District Judge Ketanji Brown Jackson, also of the D.C. federal court, sent to Judge Mehta litigation alleging Trump's virus restrictions unlawfully prevented a group of Indian nationals from obtaining H-1B work visas and H-4 accompany family member visas.
Judge Mehta will have to resolve a pending motion to relate the work visa case to the diversity visa suits.
The diversity visa winners and their beneficiaries are represented by Rafael Ureña, Curtis Lee Morrison and Abadir Barre of the Law Office of Rafael Urena in the Mohammed and Fonjong suits, Charles H. Kuck of Kuck Baxter Immigration Partners LLC in the Aker suit, and 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.
The government is represented by Christopher Thomas Lyerla, James Wen and Thomas Benton York of the DOJ's Civil Division, and Robert A. Caplen and William Chang of the U.S. Attorney's Office of 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 of the District of Columbia.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
