A group of diversity visa lottery winners and their family members filed suit in the US District Court for the District of Columbia on August 3, 2017. Defendants included the US Secretary of State and consular officials. Plaintiffs were represented by the Arab-American Anti-Discrimination Committee, the ACLU, the National Immigration Law Center, and private counsel. Plaintiffs challenged the State Department’s practice of denying immigrant visas to diversity lottery winners from countries affected by President Trump's March 6 Executive Order (EO-2). EO-2 was the second iteration of four 2017 executive orders issued by President Trump that placed restrictions on travelers from numerous majority Muslim countries into the U.S. These orders spurred numerous lawsuits, many of which can be found in this collection. 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 executive order 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, 2017, in IRAP, the 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." 137 S.Ct. 2080.

The plaintiffs were nationals from countries affected by EO-2 who had been selected as diversity visa lottery winners for the 2017 fiscal year (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 the 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 presented two main arguments. First, the plaintiffs alleged that the State Department’s 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." Second, the practice allegedly conflated the travel ban’s prohibition on entry to the US for nationals from the targeted countries (originally set to expire in September 2017) with a total ban on the issuance of visas to individuals from these countries including visas issued pursuant to the diversity program. The plaintiffs sought declaratory and injunctive relief as well as a writ of mandamus requiring consular officials to issue 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. The same day that they filed their original complaint, the plaintiffs requested class certification.

On August 18, 2017, the government responded to the plaintiffs' motion for a preliminary injunction (filed the same day as the original complaint). The State Department argued that plaintiffs' claims were precluded by the Supreme Court's stay in IRAP, which allowed the government to implement the EO.

Plaintiffs filed both an amended petition for a writ of mandamus and an amended complaint on September 22, 2017. The amended complaint added eight plaintiffs.

Judge Chutkan issued an order granting in part and denying in part plaintiffs' motion for preliminary injunction and writ of mandamus on September 29, 2017. Judge Chutkan agreed with the government that the Supreme Court's June 26 decision in IRAP precluded the district court from issuing a preliminary injunction. However, the court did grant the plaintiffs' alternative request for relief. Consequently, the court ordered the State Department to report the number of unused visas for FY2017 by October 15, 2017, and to hold those visas for plaintiffs in the event that the Supreme Court struck down EO-2. 302 F. Supp. 3d 1.

The Supreme Court issued another order in IRAP vacating the judgment of the district court in that case because the EO at issue expired on September 24, 2017, and expressed no view on the merits. 38 S.Ct. 353 Subsequently, in this case, the government filed a motion to dismiss on October 20, 2017, arguing that the Supreme Court's decision rendered the case moot. Plaintiffs filed their reply on November 13, 2017, arguing that the case was not moot because the district court could still provide them relief.

The following month, plaintiffs submitted a series of status updates to the court. Following the court's request, plaintiffs submitted a status update on December 4 reporting the number of diversity visas issued in 2017. Defendants responded on December 5 contesting that number. 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, 2018, plaintiffs filed another status update arguing that the Ninth Circuit's decision in Hawaii v. Trump supported plaintiffs' claim that the case was not moot.

Judge Chutkan dismissed this case with prejudice on March 27, 2018. He determined plaintiffs' claims were moot because the section of EO-2 at issue had expired. Plaintiffs appealed to the D.C. Circuit Court of Appeals (docket #18-5156) on May 24, 2018.

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

Defendants filed another motion to dismiss in the district court on April 13, 2020. The court did not address this motion until January 2021.

Following the Inauguration of President Biden on January 20, 2021, the government filed an unopposed motion to hold the case in abeyance and a notice informing the district court of President Biden’s revocation of the travel ban executive orders on January 27, 2021. The government also informed the district court of President Biden’s proclamation (also issued on inauguration day) that the State Department provide him with a plan to expedite the reconsideration process for visa applications denied as a result of the executive orders at issue in this litigation. As a result of this motion, the district court made three orders on January 28, 2021. First, the district court granted the motion to hold the case in abeyance. Second, the parties were to file joint status reports, with the first to be submitted by April 27, 2021, and subsequent reports every 30 days after. Third, the district court denied without prejudice the government’s April 13, 2020, motion to dismiss.

The parties have filed three status reports to the court including the first which they submitted on April 27, 2021. As of this writing, their most recent status report was submitted on June 28, 2021. In that filing, they reported to be in settlement discussions and to have exchanged drafts for a joint motion for clarification.

This case is ongoing.

Jamie Kessler - 04/05/2018
Virginia Weeks - 05/25/2018
Sam Kulhanek - 04/18/2020
Esteban Woo Kee - 08/07/2021


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