This case involves a dispute about visa processing. Following a March 20, 2020 decision by the State Department to cease most visa services, President Trump issued Presidential Proclamation 10014 on April 20, suspending the entry of all immigrants into the U.S. for two months, unless they qualified for an exception. Two months later, the entry suspension was extended to December 31, 2020 and expanded to include temporary nonimmigrant visas in Proclamation 10052. As a result, the State Department suspended review and adjudication of visas for non-excepted applicants (the No-Visa Policy).
Many groups were affected, including diversity lottery (DV-2020) winners who had not yet been issued a visa and who would not have their eligibility carry over into the next year, and minors who would age out of the preferential treatment for which they were eligible.
On May 28, 2020, U.S. citizens and lawful permanent residents who had sponsored noncitizen minor children or other relatives for immigrant visas filed this class action lawsuit against President Trump, the State Department, and the Department of Homeland Security in the U.S. District Court for the District of Columbia, with Judge Amit P. Mehta presiding. The plaintiffs sought a preliminary and permanent injunction preventing the government from acting to “deny or refuse consideration” of their visa petitions, a declaration that the Proclamations were unlawful, and attorney’s fees. They sued under the Administrative Procedure Act (APA) (5 U.S.C. § 706) and the Immigration and Nationality Act (8 U.S.C. §§ 1182, 1185) and alleged that the defendants’ conduct exceeded their authority and violated the plaintiffs’ rights under the Due Process Clause.
The plaintiffs moved to certify a class of visa sponsors whose beneficiaries or derivative beneficiaries were subject to the Proclamations and at risk of aging out on June 2.
On June 23, Judge Mehta denied the plaintiffs' motions for a preliminary injunction and class certification because they failed to show that a justiciable case or controversy existed. Specifically, Judge Mehta found that the plaintiffs had not shown that they faced imminent injury because some of the plaintiffs’ minor beneficiaries had successfully applied for visas under the “national interest exception” (a separate administrative procedure), and others had been unable to apply for visas for reasons unrelated to the Proclamations. 2020 WL 3429786.
The plaintiffs then amended their complaint on July 17, 2020, adding as plaintiffs corporations that were unable to hire necessary workers because workers’ visas had not been issued along with diversity visa selectees whose visas had to issue by September 30 to remain eligible for entry. They also proposed the following four subclasses:
1. Those who will be unable to receive their diversity visas before Sept. 30 deadline, and will thus be unable to immigrate.
2. Citizens who have sponsored an immediate relative who now cannot immigrate.
3. Lawful permanent residents who have an “approved immigrant visa petition for a preference relative” who, because of the Proclamations, will be unable to immigrate.
4. U.S. employers whose employees or potential employees cannot now immigrate.
Several states and the District of Columbia also filed an amicus brief arguing that immigrants were good for their economies and that the presidential action would hurt their recovery.
Three other suits filed between July 10, 2020 and August 5, 2020 were fully consolidated with this case on August 13:
Aker v. Trump, No. 20-cv-1926;
Mohammed v. Pompeo, No. 20-cv-1856; and
Fonjong v. Trump, No. 20-cv-2128. In all of these cases, the plaintiffs were diversity visa selectees and derivative beneficiaries challenging Presidential Proclamations 10014 and 10052 under the APA; two (
Mohammed and
Fonjong) were filed by the same law firm.
Judge Mehta also partially consolidated
Panda v. Wolf, No. 20-cv-1907, with this case to the extent that
Panda raised similar issues.
Panda involved an APA challenge to Proclamation 10052 but also included an equal protection argument that the government's conduct disparately impacted Indian nationals. On September 16, Judge Mehta denied the
Panda plaintiffs' request for a preliminary injunction in the part of that case continuing separately. 2020 WL 5545554. The
Panda plaintiffs appealed, and on September 29,
Panda was stayed pending the outcome of the appeal.
Following the consolidation, many influential companies filed an amicus brief as well, arguing that they would suffer serious economic harm from the proclamations. The companies included Adobe, Amazon, Apple, Google, Microsoft, Paypal, Reddit, Twitter, Uber Technologies, and Zillow.
The plaintiffs filed a second amended complaint on August 23, 2020, adding a claim under the Mandamus Act (28 U.S.C. § 1361) and requesting that the court issue an order of mandamus requiring defendants to adjudicate visa petitions.
On September 4, 2020, Judge Mehta granted the DV-2020 plaintiffs a preliminary injunction. The defendants were ordered to “undertake good-faith efforts . . . to expeditiously process and adjudicate DV-2020 diversity visas.” Defendants were preliminarily enjoined “from interpreting and applying the COVID Guidance to DV-2020 selectees” in such a way as not to process their visas because they were not “mission critical.” The remaining motions and requests were not granted. The court also delayed certifying a class, and the non DV-2020 plaintiffs did not obtain injunctive relief because vacatur of the policy would not eliminate their family separation problem. 2020 WL 5367010.
On September 14, 2020, the court amended the preliminary injunction to prevent the State Department from waiting 14 days to issue visas to DV-2020 applicants who were inside certain COVID-affected regions because the delay served no rational purpose. 2020 WL 5886855. On September 24, 2020, non DV-2020 plaintiffs appealed to the U.S. Court of Appeals for the D.C. Circuit over the ruling against their motion for a preliminary injunction.
On September 30, 2020, the court certified a class in
Gomez consisting of all “Individuals who have been selected to receive an immigrant visa through the U.S. Department of State’s FY2020 Diversity Visa Lottery and who had not received their immigrant visa on or before April 23, 2020, when the Presidential Proclamation 10014, later extended by Presidential Proclamation 10052, took effect.” But the court declined to certify a class in
Aker because it was unclear how many applicants who were issued visas before the Proclamation had not been able to have them renewed, and because there was no legal impediment to renewing a visa. It also ordered the State Department to reserve 9,095 visas (calculated based on the expected reduction due to COVID-19) to correct for the loss of visas due to the illegal processing delays. 2020 WL 5861101.
This case is ongoing.
Samuel Poortenga - 10/02/2020
compress summary
