Lottery Winners' Visas At Risk Without Injunction, Judge Fears

By Khorri Atkinson
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Law360 (February 18, 2021, 9:01 PM EST) -- A D.C. federal judge on Thursday expressed concerns that thousands of visa lottery winners affected by President Joe Biden's continued enforcement of Trump-era travel bans are in danger of losing their visas, set to expire in March, if he declines their request for immediate relief.

U.S. District Judge Amit Mehta asserted this view while questioning a government attorney during oral arguments in the visa winners' bid for emergency injunctive relief, which would protect the interests of the named diversity-visa plaintiffs and class members. According to the motion, about 7,000 diversity visas the U.S. Department of State issued last September in response to a court order are set to expire, as they're valid for a maximum of six months.

U.S. Department of Justice attorney Thomas Benton York urged the judge to deny the visa winners' request for emergency relief, even though he admitted some would lose standing to pursue their claims if the bans continued. York said the administration has been cautiously examining the Trump-era proclamations issued last April and June and is "committed" to announcing a decision by the end of this month.

But for immigration attorneys in the case, who are infuriated by Biden's inaction and whose clients are temporarily barred from entering the country, time is of the essence.

If the challengers lose standing to challenge the proclamation, this means their claims would be rendered moot before the district court can decide the merits of their case, Judge Mehta explained. He didn't expressly say how he will decide the matter, but his line of questioning during the remote hearing suggests he's open to maintaining jurisdiction over those with visas set to expire next month.

"So if some will lose standing, why can't I use the All Writs Act to issue some relief that preserves my jurisdiction?" the judge asked York. The centuries-old law gives courts broad and flexible equitable power to issue "all writs necessary or appropriate" to achieve the "rational ends of law."

The attorney replied in part that the challengers should have brought this emergency motion in advance, and that the act cannot provide them with the relief they are seeking.

The government said in an opposition brief Wednesday that the law can be used to "prevent the frustration of orders [a court] previously issued in its exercise of jurisdiction otherwise obtained." The visa winners want the district court to invoke the act to "avoid the nullification" of Judge Mehta's order last September that resulted in more than 7,000 visas being issued by the State Department. But York countered that granting this request and allowing immediate travel to the U.S. would implicate that same ruling that upheld the proclamations' lawfulness.

"I'm not considering granting relief that would allow them to enter immediately. I don't think I have that power," the judge replied. But he appeared to suggest he can order a visa extension under his equity powers.

The visa winners are among the 55,000 who were allotted green cards through the Diversity Visa lottery for fiscal year 2020. They are also among the many immigrant groups barred from entering the country under the former president's proclamations in which he cited the pandemic-induced economic recession. Biden has rescinded Trump's other travel ban on individuals from several Muslim-majority countries but has left the visa bans intact.

Among other things, the challengers said the court should immediately set aside the bans, order DHS to promptly issue new guidance that properly accounts for the interests of visas that will expire in March, and extend the unexpired visas so their holders don't lose their opportunity to immigrate while the government considers a new policy.

Counsel for the challengers on Thursday emphasized the urgency of getting relief, saying it's uncertain whether Biden will rescind the bans. If the government were to vacate the proclamations, the issue before the court would be rendered moot.

At the end of the hearing, Judge Mehta said he'll issue a decision "quickly."

The visa winners in the Gomez class are represented by Jesse M. Bless of the American Immigration Lawyers Association; Stephen Manning, Tess Hellgren and Jordan Cunnings of Innovation Law Lab; Karen C. Tumlin, Esther H. Sung and Jane P. Bentrott of Justice Action Center; and Andrew J. Pincus, Matthew D. Ingber and Cleland B. Welton II of Mayer Brown.

The government is represented by Thomas York, James Wen, Glenn M. Girdharry and Christopher Thomas Lyerla of the DOJ's Civil Division, and Johnny Hillary Walker, William Chang and Robert Aaron Caplen 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.

--Additional reporting by Alyssa Aquino. Editing by Adam LoBelia.

UPDATE: Counsel information for the Gomez class has been updated.

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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