On August 3, 2017 the Arab-American Anti-Discrimination Committee, the ACLU, and the National Immigration Law Center filed this lawsuit in the United States District Court for the District of Columbia. The lawsuit 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). The diversity visa program awards visas to nationals from countries that have historically sent low numbers of immigrants to the United States.

On Mar. 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). However, on Jun. 26, 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."

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 Sept. 30; winners whose visas were not issued by that deadline lost their slots in the program. In their complaint, 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 and "statutes and regulations requiring the issuance of immigrant visas to diversity visa lottery winners who are statutorily eligible." Plaintiffs also argued that defendants' practice conflated entry with visa issuance. Plaintiffs sought declaratory and injunctive relief as well as a write of mandamus requiring consular officials to issue plaintiffs' immigrant visas. Alternatively, 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's in IRAP v. Trump.

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

On Sept. 29, Judge Chutkan issued an order granting in part and denying in part plaintiffs' motion for preliminary injunction and writ of mandamus. Judge Chutkan agreed with defendants that the Supreme Court's Jun. 26 decision precluded the court from issuing a preliminary injunction. However, she did grant plaintiffs' alternative request for relief. Consequently, the court ordered the State Department to report by Oct. 15 on the number of unused visas for FY2017 and to hold those visas 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. Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted." Subsequently, defendants filed a motion to dismiss this case on Oct. 20, arguing that the Supreme Court's decision rendered it moot. Plaintiffs filed their reply on Nov. 13. In their response, plaintiffs argued that the case was not moot because the court could still provide relief to plaintiffs.

The following month, plaintiffs submitted a series of status updates to the court. Following the court's request, plaintiffs submitted a status update on Dec. 4 reporting the number of diversity visas issued in 2017. Defendants responded on Dec. 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 Jan. 5 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. Defendants followed up with a reply arguing that the Ninth Circuit's decision was irrelevant to this case.

2018 Developments --

On Mar. 27, Judge Chutkan dismissed the case with prejudice, finding that plaintiffs' claim were moot because the section of EO-2 at issue had expired. The plaintiffs appealed to the DC Circuit.

This case is ongoing.

Jamie Kessler - 04/05/2018
Virginia Weeks - 05/25/2018


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