Attys Say US Is Approving Visas To Skirt Green Card Ban Suit

By Suzanne Monyak
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Law360 (June 11, 2020, 6:08 PM EDT) -- Mirna S., a U.S. permanent resident who lives in New York, was desperate to get her youngest daughter into the United States while she still could.

Her daughter, age 20, feared abuse at the hands of her father, who had abused Mirna herself and raped Mirna's eldest daughter. And time was running out; her daughter was just weeks away from turning 21, at which point she would no longer be considered one of Mirna's dependents and would be forced to wait in the yearslong line for adult children to secure green cards.

But when her daughter arrived at her consular interview, the officer denied her green card request, telling her that she was ineligible under President Donald Trump's April proclamation blocking some foreigners, including relatives of permanent residents, from moving to the U.S. on new green cards, her attorneys said in a Thursday press call.

After participating in a proposed class action brought by the American Immigration Lawyers Association and other legal advocacy organizations, Mirna's daughter got a new interview and was approved for a green card under the national interest exception to Trump's proclamation.

"It makes me so emotional to think that after so much fighting, we almost would not have been able to be together because of this decision by the president," she said in Spanish, through a translator.

According to Jesse Bless, AILA's litigation director who previously worked for the U.S. Department of Justice's Office of Immigration Litigation, the federal government is taking measures to moot out plaintiffs' claims ahead of the next court hearing, which Bless said is scheduled for later this month.

"I've seen enough to know in my government experience that the first thing we do as government attorneys is try to moot out sympathetic plaintiffs. They did that here as far as I'm concerned, and they'll continue to do it," Bless said.

Mirna isn't the only plaintiff in the lawsuit to see their relatives suddenly approved for visas despite being covered by the proclamation.

Domingo Gomez, another U.S. permanent resident, had attempted to sponsor his wife's 20-year-old daughter on a green card. She got her visa on Tuesday, less than two weeks after the lawsuit was filed and six days before her 21st birthday.

"Had this coalition not filed this lawsuit, there's no way she would have gotten her interview or been issued her visa," said Nadia Dahab, a senior staff attorney at Innovation Law Lab, one of the organizations involved in the suit.

AILA, along with partners at the Justice Action Center and Innovation Law Lab, filed the D.C. federal court lawsuit on May 28, claiming that Trump overstepped his authority by issuing a proclamation that conflicts with laws passed by Congress allowing permanent residents to sponsor their children.

Its effect on children hoping to enter the U.S. on green cards is "much more draconian," the suit says, particularly those who will soon turn 21 and "age out" of their visa categories.

This suit is at least the third attempt to challenge Trump's green card ban, which was issued in response to high U.S. unemployment during the coronavirus pandemic. AILA had previously attempted to add a challenge to the ban in existing litigation fighting another presidential proclamation to bar green card applicants without health insurance, but an Oregon federal judge found the new challenge too unrelated from the initial claims.

Last month, a D.C. federal judge tossed a second lawsuit challenging the ban, finding that none of the green card applicants had shown that their cases had been denied under the proclamation yet.

While Mirna's daughter was granted a waiver, Bless said that the government has never laid out guidance for what qualifies someone for a national interest exception waiver, aside from an announcement last month that professional athletes may enter the U.S. Bless pledged to continue fighting the ban and to force the government to defend the proclamation, even if the plaintiffs own claims are resolved.

The president's proclamation is set to expire on June 22, though advocates expect the president to renew it and extend the green card ban. One named plaintiff remains, an American citizen hoping to sponsor his 20-year-old grandchild, but Bless said that the organizations plan to find more individuals affected by the ban to join the suit if it's extended.

"Hey listen, if they want to moot out all the children, god bless them. If they want to moot out every diversity visa applicant, God bless them, let's do it," he said. "But until then we're going to be taking on the challenge to get to the bottom of it because there's no rationale that makes sense between the rocket ship economy that we're purportedly on and the need to ban all immigrants and their children."

A DOJ spokesperson didn't immediately return a request for comment.

The families are represented by 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 Innovation Law Lab, and Andrew J. Pincus, Matthew D. Ingber and Cleland B. Welton II of Mayer Brown LLP.

The federal government is represented by Thomas Benton York and James Wen of the DOJ's Office of Immigration Litigation.

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 Nicole Bleier.

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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