On August 3, 2017, a group of diversity lottery winners and their family members filed this lawsuit in the United States District Court for the District of Columbia against the Secretary of State and consular officials. Represented by the Arab-American Anti-Discrimination Committee, the ACLU, the National Immigration Law Center, and private counsel, the plaintiffs challenged the U.S. State Department's practice of denying immigrant visas to diversity lottery winners from countries affected by President Trump's March 6 Executive Order (EO). The case was assigned to Judge Tanya S. Chutkan.

The diversity visa program awards visas to nationals from countries that have historically sent low numbers of immigrants to the United States. On March 6, 2017, President Trump issued an EO that barred entry to nationals from six majority-Muslim countries - Iran, Syria, Libya, Sudan, Somalia, and Yemen. Litigation ensued immediately, and the lower courts initially enjoined the government from implementing the order (see IRAP v. Trump and Hawaii v. Trump). But on June 26, the U.S. Supreme Court stayed the nationwide injunctions and allowed the order to become effective, except as it applied to immigrants who could establish a "bona fide relationship with a person or entity in the United States."

The plaintiffs were nationals from countries affected by the EO who had been selected as diversity visa lottery winners for FY2017 but could not establish a bona fide relationship with a person or entity in the United States. By statute, the State Department was required to issue visas to 2017 winners by September 30; winners whose visas were not issued by that deadline lost their slots in the program. In their complaint, the plaintiffs alleged that "nevertheless, the State Department has adopted a policy directing consular officials to deny diversity visas to nationals from the countries barred from entry by the Executive Order." The complaint argued that this practice violated the Administrative Procedure Act (APA) and "statutes and regulations requiring the issuance of immigrant visas to diversity visa lottery winners who are statutorily eligible." The plaintiffs also argued that the defendants' practice conflated entry with visa issuance. The plaintiffs sought declaratory and injunctive relief as well as a writ of mandamus requiring consular officials to issue the plaintiffs' immigrant visas. Alternatively, the plaintiffs requested that the court order the State Department to reserve any unused FY2017 visa numbers for processing following any decision by the Supreme Court in IRAP v. Trump.

On August 18, the defendants responded to the plaintiffs' motion for a preliminary injunction. In their response, the defendants argued that the plaintiffs' claims were precluded by the Supreme Court's stay in IRAP v. Trump, which allowed the government to implement the EO. The plaintiffs argued that the State Department's decision to deny visas to certain foreign nationals was simply the government implementing the March 6 EO. In late August, the plaintiffs filed a supplemental brief in support of their preliminary injunction motion that included several updates to the plaintiffs' situations.

On September 29, Judge Chutkan issued an order granting in part and denying in part the plaintiffs' motion for preliminary injunction and writ of mandamus. Judge Chutkan agreed with the defendants that the Supreme Court's June 26 decision precluded the court from issuing a preliminary injunction in this case. However, she did grant the plaintiffs' alternative request for relief. Consequently, the court ordered the State Department to report by October 15 on the number of unused visas for FY2017 and to hold those visas for the plaintiffs in the event that the Supreme Court struck down the EO.

On Oct. 10, the Supreme Court issued the following order in IRAP v. Trump: "We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780. Because that provision of the Order expired by its own terms on September 24, 2017, the appeal no longer presents a live case or controversy. Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order. No. 13,780. We express no view on the merits." Subsequently, the defendants in this case filed a motion to dismiss on October 20, arguing that the Supreme Court's decision rendered it moot. The plaintiffs filed their reply on November 13, arguing that the case was not moot because the court could still provide relief to the plaintiffs.

The following month, the plaintiffs submitted a series of status updates to the court. Following the court's request, the plaintiffs submitted a status update on December 4 reporting the number of diversity visas issued in 2017. The defendants responded on December 5 contesting that number. The plaintiffs claimed that the State Department issued a total of 49,067 out of the available 50,000 diversity visas, while the government claimed that 49,976 were actually issued. Additionally, on January 5, the plaintiffs filed another status update arguing that the Ninth Circuit's decision in Hawaii v. Trump supported the plaintiffs' claim that the case was not moot. The defendants followed up with a reply arguing that the Ninth Circuit's decision was irrelevant to this case.

On March 27, 2018, Judge Chutkan dismissed this case with prejudice, finding that the plaintiffs' claims were moot because the section of EO-2 at issue had expired. The plaintiffs appealed to the D.C. Circuit Court of Appeals (docket #18-5156).

On August 13, 2019, the D.C. Circuit issued an opinion finding that this case was not moot. The Court reasoned that the case was not moot because whether the district court retained the authority to award the plaintiffs any relief was a merits question. The Court reversed and remanded the case back to the district court. 933 F.3d 774.

On April 13, 2020, the defendants filed a new motion to dismiss in the district court. The defendants argued that the plaintiffs' claims fail on the merits because they were requesting that diversity visas from FY2017 be issued in FY2020. The defendants stated that diversity-visa applicants are not eligible to receive such relief after the end of the specific fiscal year for which they were selected.

This case is ongoing.

Jamie Kessler - 04/05/2018
Virginia Weeks - 05/25/2018
Sam Kulhanek - 04/18/2020


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