Diversity Visas Extended While Legal Battle Continues

By Alyssa Aquino
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Law360 (February 20, 2021, 12:32 PM EST) -- A D.C. federal judge extended the shelf life of visas awarded through the 2020 Diversity Visa lottery, saying Friday the move allows visa winners to maintain standing in a lawsuit challenging a Trump-era travel ban preventing them from entering the country.

U.S. District Judge Amit Mehta ordered the visas be valid for six months after he enters a final judgment in the lottery winners' challenge to former President Donald Trump's travel ban, which the Biden administration has kept intact.

Letting the visas lapse while the travel bans are in effect would rob the lottery winners of standing to challenge the orders and "thwart" the court's ability to address the potential harm caused by not being able to enter the country, Judge Mehta explained.

"Even if the court were to declare the proclamations unlawful as plaintiffs request, a DV-2020 plaintiff who lacked a current, valid visa still could not enter the country. Accordingly, an order declaring the proclamations unlawful would provide no relief to a DV-2020 plaintiff without a current, valid visa," he said.

In issuing the order, Judge Mehta granted the visa winners' request to invoke the All Writs Act, a centuries-old law permitting a court to issue orders "necessary to preserve the availability of meaningful judicial review."

The order is a victory for lottery winners embroiled in litigation since July 2020 seeking to knock back Trump's proclamations from  April and June barring them and many more immigrant and work visa holders from entering the country.

Judge Mehta offered the lottery winners some relief in September, when he directed the U.S. Department of State, which had stopped processing their visa applications in light of the proclamations, to quickly process the visas before the end of the month. Under that court order, the U.S. State Department issued 7,000 diversity visas.

The proclamations, which Trump said would shield a domestic economy devastated by the COVID-19 pandemic, have outlasted his administration. With President Joe Biden refraining from revoking the orders, the lottery winners pressed Judge Mehta for further relief. They stressed that their visas would expire before the proclamations lapse on March 31, in effect, "nullifying" Judge Mehta's September court order.

Attorneys for the administration argued otherwise, pointing out that Judge Mehta had also ruled against the lottery winners' constitutional challenge to the proclamations in that same order. By extending the validity of the visas, Judge Mehta would "frustrate" that portion of the preliminary ruling, the attorneys argued.

But Judge Mehta disagreed with that reading and batted away the government's other claims that further relief would amount to a preliminary injunction.

Rafael Urena, an attorney for the lottery winners, praised Judge Mehta's order in a statement to Law360.

"Judge Mehta's order provides a life raft to the immigrants that the Biden administration has forgotten," he said.

During a Thursday court hearing, attorneys for the Biden administration indicated that the White House would make a final decision on the bans at the end of the month. On Friday, hours before Judge Mehta's order came down, the State Department announced that it had exempted lottery winners whose visas are set to expire by the end of the month from the travel ban.

Judge Mehta nodded to these developments in his Friday order, saying it wouldn't apply to visa holders with newly provided national interest waivers. He also said that the diversity visas would expire six months from when the travel ban is lifted, should Biden revoke the ban before it expires.

The State Department didn't immediately respond to requests for comment.

The visa winners are represented by Kristina Ghazaryan, Philip Duclos, Abadir Barre, Curtis Lee Morrison and Rafael Urena of the Law Office of Rafael Urena, Andrew Pincus, Matthew Ingber and Cleland Welton II of Mayer Brown LLP, Jesse Bless of American Immigration Lawyers Association, Karen Tumlin, Esther Sung and Jane Bentrott of the Justice Action Center, Stephen Manning, Tess Hellgren and Jordan Cunnings of the Innovation Law Lab, Laboni Hoq of the Law Office of Laboni Hoq, Charles Kuck of Kuck Baxter Immigration, Greg Siskind of Siskind Susser PC and Jeff Joseph of Joseph & Hall PC.

--Editing by Sarah Golin.

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.

Correction: a previous version of this story misrepresented the travel bans with a public health order blocking travel across the Southern border.

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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