By Alyssa Aquino

Law360 (September 30, 2020, 9:42 PM EDT) -- The Trump administration must preserve 9,095 of the 40,000 unused green cards awarded through the 2020 Diversity Lottery Program, a D.C. federal judge said late Wednesday, hours before the green cards were set to expire completely.

Lottery winners had pressed U.S. District Judge Amit P. Mehta to preserve 30,000 visas based on the number of visas they said could have been issued had President Donald Trump not barred certain green card holders from moving to the U.S. amid the COVID-19 pandemic.

Judge Mehta had ordered the Trump administration to "expeditiously process and adjudicate" the green card applications before they expired Wednesday. The government fell short of that order, necessitating further action, the judge said, but the effect of the pandemic on processing visa applications must be taken into account.

The lower 9,095 number is a more reasonable estimate of what the U.S. Department of State could have issued during the six months that visa processing was put on ice, based on the rates consulates had been churning out other types of visas during the pandemic, Judge Mehta said.

"The problem with plaintiffs' proposed number is that it asks the court to treat FY 2020 as if it were an 'average' year. But, to state the obvious, it has been anything but average," he said, noting that coming up with a reasonable number is not an exact science.

Kuck Baxter Immigration Partners LLC's Charles Kuck, an attorney for the lottery winners, said he was pleased that Judge Mehta ordered the additional relief, but hoped more green cards could be recovered.

"While we sought a larger number of reserved visas from DV2020, we are hopeful that Congress can help us recover the remaining, unused DV2020 numbers once sanity is restored to our political process," he said in a Monday statement to Law360.

The lottery winners included a group of individuals who had secured their visas, but watched them expire as they were locked out of the U.S. under Trump's visa ban. Those plaintiffs had pressed the court to renew their visas, but Judge Mehta refused.

"Plaintiffs have not shown how the post-deadline expiration could be attributed to any action which the court has found to be unlawful," Judge Mehta said. "Absent this connection, equitable relief is unwarranted."

The court issued the order despite the government's protests that it had done its best to rapidly process the visas amid a health emergency.

"People are trying to meet their statutory obligations, but at the same time they're keeping their employees safe and the people they've served safe," U.S. Department of Justice attorney, Thomas Benton York, said during a Monday hearing.

But Judge Mehta thought they could do more.

He pointed out Wednesday that the State Department had waited five days to issue guidance on how to rapidly process the visas. When that guidance came down, it included what the judge called an "irrational" requirement that diversity visa applicants in Europe's Schengen Area, Iran and other coronavirus-affected regions undergo a 14-day out-of-country quarantine to obtain their green cards.

Moreover, preserving some visas would allow the lottery winners who were unnamed in the litigation a shot at coming to the U.S., the judge said.

In compliance with the court order, the State Department prioritized processing applications from the over 1,000 named individuals who brought the case, but had left behind tens of thousands of unnamed lottery winners, according to the opinion.

To ensure that they would remain eligible for the preserved green cards, Judge Mehta certified a class of lottery winners who hadn't received their green cards when Trump's visa ban went into effect.

Curtis Morrison, one of the lottery winners' attorneys, said that the order provides hope for thousands of immigrant families.

"[B]ut our work is not done until our plaintiffs' feet are on U.S. soil. Our focus will be winning our cases on the merits," he said.

Representatives for the State Department didn't immediately respond to an after-hours request for comment Wednesday.

The diversity visa winners and their beneficiaries are represented by Rafael Ureña, Curtis Lee Morrison and Abadir Barre of the Law Office of Rafael Ureña in the Mohammed and Fonjong suits; Charles H. Kuck of Kuck Baxter Immigration Partners LLC in the Aker suit; 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; and Geoffrey Forney of Wasden Banias LLC in the Panda suit.

The government is represented by Christopher Thomas Lyerla, James Wen and Thomas Benton York of the U.S. Department of Justice's Civil Division, and Robert A. Caplen and William Chang of the U.S. Attorney's Office for 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 for the District of Columbia.

--Editing by Breda Lund.

Update: This story has been updated with additional comments from plaintiffs' counsel. 

Correction: A previous version of this story misnamed Kuck Baxter Immigration Partners LLC. The error has been corrected. 

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