Law360, San Francisco (January 22, 2021, 10:58 PM EST) -- With the Biden administration not immediately quashing former President Donald Trump's "nativist" proclamation curbing immigration during the pandemic, a putative class of U.S. visa seekers urged a California federal judge Friday to end Trump's "king-like enforcement of a royal decree" and order government officials to resume visa processing.
"By sustaining this proclamation further, you simply allow the prior administration to carry out what we believe to be an unlawful stopping of legal immigration to the United States," Charles H. Kuck of Kuck Baxter Immigration LLC, co-counsel for a putative class of U.S. visa holders and applicants, told U.S. District Judge Richard Seeborg during a preliminary injunction hearing Friday.
"The ex-president used a health crisis to carry out an illegitimate, nativist agenda," Kuck said.
Valerie Smith, of the U.S. Attorney's Office for the Northern District of California, told Judge Seeborg that the new administration is reviewing the proclamation suspending entry of immigrants as a response to unemployment during the coronavirus pandemic, but that "regarding the legal arguments that have been made, I don't believe our position changes."
Judge Seeborg surmised that the days-old administration of U.S. President Joe Biden likely had a lot on its plate, but said it would be unfair to plaintiffs to delay their preliminary injunction hearing.
Counsel for the immigrants urged the judge to strike down the proclamation, saying it was never about economic recovery but about stopping legal immigration by "fiat."
"This was about finding some way to carry out the prior administration's policy objective of stopping legal immigration to America, which they could not move through Congress," Kuck told the judge.
"This basically is the complete abdication of rule making in favor of a king-like enforcement of a royal decree," Kuck said.
Trump issued a number of proclamations restricting immigration in the name of protecting U.S. workers who lost their jobs as a result of disruption caused by the novel coronavirus. Trump's April proclamation barred foreign workers, with some exceptions, from coming to the U.S. on employment-based green cards for 60 days. Trump issued more executive orders barring foreign citizens coming to the U.S. on a number of work visas, including H-1B specialty occupation visas. He extended those bans on the final day of 2020.
Hundreds of visa applicants, along with their American sponsors, sued Trump and the U.S. Departments of State, Justice and Homeland Security in November 2020, contending that Congress didn't intend for immigration to be allowed only during times of economic prosperity and high employment.
The foreign nationals in the suit are seeking to come to the U.S. on employment-based visas set aside for highly skilled workers and individuals who have an extraordinary ability, as well as family-sponsored and diversity visas.
Several other lawsuits have been filed challenging the Trump administration's work visa ban, achieving mixed results.
On Friday, counsel for the visa seekers urged Judge Seeborg to strike down the former president's proclamation, saying that every day that the proclamation remains intact, more applicants are not adjudicated and more diversity visas, employment visas and family reunification visas that have been issued, expire.
The Department of State "has unlawfully and in bad faith not been interviewing people" despite four previous court orders, Kuck told Judge Seeborg, noting a 92% decline of legal immigration into the U.S. between March and December. Kuck said these are the lowest levels since 1820, with a few exceptions during World War II and the Great Depression.
Judge Seeborg mulled what a preliminary injunction in this case might look like, saying, "I would be saying the proclamation is not a basis to stop the usual and ordinary processing [of visa applications]."
Judge Seeborg also asked plaintiffs "if a judge threw caution to the wind" and issued a nationwide injunction, would there still be a need for class certification? Kuck responded that a nationwide injunction would benefit hundreds of thousands of people and would remove the need for certification.
Judge Seeborg pushed the government to explain what findings they have to justify the claimed "deleteriousness impact" that immigration would have on the U.S. labor market amid the pandemic.
Smith pointed to the U.S. Supreme Court's 2018 ruling in Trump v. Hawaii, in which the justices upheld Trump's previous travel ban against foreigners from a handful of countries. Smith said that decision clarified that the president can suspend entry of foreign nationals into the U.S. and that he is not required to "link the pieces of the puzzle."
Smith said the presidential action is non-reviewable, that the State Department's actions have been reasonable and rejected the plaintiffs' "hypothetical" irreparable harm claims.
But Judge Seeborg pushed back, saying the proclamation is not a response to the problems of the pandemic, but a response to domestic labor market issues.
Smith acknowledged that the proclamation does not protect public health.
In a statement to Law360 following Friday's hearing, Aaron Hall of Joseph & Hall PC, co-counsel for plaintiffs, said they are hopeful that Judge Seeborg will agree that Trump nullified the Immigration and Nationality Act by banning immigrant visas and lacked the authority to do so.
"It is disappointing that the Biden Department of Justice is arguing to uphold the Trump Proclamation — issued based on the evidence-free Trump claim that immigrants harm the economy — which is separating so many families and causing so much harm," Hall said. "We hope that the Biden Administration will reverse course soon but in the meantime will continue to fight against these unlawful proclamations with everything we have."
Representatives for the Biden administration did not immediately respond to requests for comment Friday afternoon.
The visa seekers are represented by Charles H. Kuck of Kuck Baxter Immigration LLC, Jeff Joseph and Aaron Hall of Joseph & Hall PC and Jesse Lloyd of Bean & Lloyd LLP.
The government is represented by Valerie Elizabeth Smith of the U.S. Attorney's Office for the Northern District of California.
The case is Anunciato et al. v. Trump et al., case number 3:20-cv-07869, in the U.S. District Court for the Northern District of California.
--Editing by Michael Watanabe.
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