Lottery Winners, DOJ Trade Shots In Visa-Expiration Fight

By Khorri Atkinson
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Law360 (February 10, 2021, 10:11 PM EST) -- Lawyers for thousands of immigrants challenging Trump-era COVID-19 travel bans told a D.C. federal judge Wednesday that the Biden administration is taking too long to reach a deal that will allow their clients into the country before the visas, awarded to winners of a government lottery, expire.

The visa winners are among the 55,000 individuals allotted green cards through the Diversity Visa lottery for fiscal year 2020. They are also among the many immigrant groups temporarily barred from entering the country under the former president's proclamations, which he issued in April and June and extended through March, citing the pandemic-induced economic recession.

Though President Joe Biden rescinded Trump's other travel ban on individuals from several Muslim-majority countries, he has left the COVID-19 bans intact, a move that continues to bar the visa winners from entering the U.S. 

During a teleconference hearing Wednesday afternoon, U.S. District Judge Amit Mehta presided over frequently combative oral arguments, suggesting there's growing tension between the Biden administration and the attorneys for the visa holders.

Charles H. Kuck of Kuck Baxter Immigration LLC, an attorney for the visa holders, repeatedly emphasized the urgency of getting relief from the court. He told Judge Mehta that efforts to reach a resolution with the administration to protect those with visas set to expire in March have been unsuccessful, so they will file a motion for expedited injunctive relief Friday.

U.S. Department of Justice attorney Thomas Benton York countered, however, that the challengers could have brought their motion for expedited relief in January, but the current matter only came to the government's attention Tuesday after a D.C. Circuit panel sent the case back to the district court without a decision on whether the proclamation is lawful.

That remand concerns the Trump administration's appeal of a portion of Judge Mehta's order last September, which found that the U.S. Department of State had illegally stopped processing certain visa applications under the visa ban. The judge also ruled the visa ban was constitutional. 

The circuit panel ordered Judge Mehta to determine whether the visa holders are eligible for interim relief and, if so, to take whatever steps are necessary to provide it. The judge was also ordered to find out whether the Biden administration intends to enforce the proclamation.

York told the judge that the government didn't get enough time to reply to the visa holders' counsel ahead of Wednesday's 4 p.m. hearing. He added that it will take the government about a week to respond to their motion for relief, an assertion that drew an impassioned rebuke from Kuck. 

"There's probably 300 or 400 people who will lose their visas within the next week," Kuck said. "Most importantly, this is not something the government was just presented with. That is not accurate. We actually had this conversation two weeks ago … when the administration publicly said it's considering whether to lift the bans."

"The reality is it's now on the court to make this happen," Kuck said. "Everybody is going to lose their visas while they consider this."

Jesse Bless of the American Immigration Lawyers Association, another attorney representing visa holders, contended that the Biden administration rejected his team's request to identify certain information concerning their clients. 

"It's not like we've sat idly by. We've asked the government to work with us. To say this is a midnight thing is not true," Bless argued. 

He added, "The government has been unwilling to meet us at any point. They just say no to everything we've asked for." 

Judge Mehta at one point expressed concern about an unknown number of visa holders who he said wouldn't get any relief under the motion to be filed Friday because their visas already expired.

The judge did, however, voice sympathy for the government's position and questioned "why it took a remand from the circuit court" for visa holders to seek relief.

"You didn't need the circuit's permission to do that," the judge said, explaining that the motion for expedited relief would be outside the scope of what a three-judge panel was examining. 

When asked how negotiations are playing out, York replied that the relevant federal "agencies are considering their options."

He said the government is "actively reviewing" the proclamations, "and is committed to informing the court as soon as a decision is made one way or the other."

At the end of Wednesday's hearing, Judge Mehta stayed the summary judgment briefing schedule in order to consider the relief motion. The government has until Feb. 17 to file its reply brief, and the parties will appear before the judge the next day for oral arguments.

The visa winners are represented by Philip Duclos, Curtis Lee Morrison, Rafael Ureña, Kristina Ghazaryan and Abadir Barre of the Law Office of Rafael Ureña; Charles H. Kuck of Kuck Baxter Immigration LLC; and Jesse Bless of the American Immigration Lawyers Association.

The government is represented by Thomas York, James Wen, Glenn M. Girdharry and Christopher Thomas Lyerla of the U.S. Department of Justice's Office of Immigration Litigation, and Johnny Hillary Walker, William Chang and Robert Aaron Caplen of the U.S. Attorney's Office for the District of Columbia's Civil Division.

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 Alyssa Aquino. Editing by Regan Estes.

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Case Title

GOMEZ et al v. TRUMP et al

Case Number



District Of Columbia

Nature of Suit

Administrative Procedure Act/Review or Appeal of Agency Decision


Amit P. Mehta

Date Filed

May 28, 2020

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