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U.S. Ordered to Reserve 9,000 Diversity Visas Past Deadline

Oct. 1, 2020, 1:39 AM

A U.S. district judge in Washington ordered the State Department to reserve 9,095 diversity visas for winners of the 2020 lottery whose applications are still being processed amid delays caused by the coronavirus pandemic.

The ruling, issued late Wednesday, is the latest in a series of orders for the diversity visa hopefuls who faced a pending Sept. 30 deadline to receive their papers so that they can come to the U.S. in 2021.

The diversity visa lottery winners are part of five consolidated lawsuits challenging Trump’s ability to ban immigrants and foreign workers from entering the country through the rest of the year. The judge, Amit Mehta, on Sept. 4 ruled that the ban should be lifted for the diversity visa selectees, but processing delays have continued to put them at risk of missing the program’s deadline mandating that visas be issued by the end of the fiscal year.

In his 26-page decision issued Wednesday, Mehta said that because the fiscal year has not yet ended, he has the “equitable authority and discretion” to order the government to reserve the visas for future processing, pending a final resolution of the merits of the case.

“This order provides hope for thousands of immigrant families, but our work is not done until our plaintiffs’ feet are on US soil,” Curtis Morrison, an attorney representing some of the diversity visa plaintiffs who won relief, said in a release. “Our focus will be winning our cases on the merits, so we can move forward with getting consular interviews for our plaintiffs who have not yet been issued visas.”

Mehta also granted class certification to those individuals who have been selected to receive an immigrant visa through the FY2020 Diversity Visa Lottery, but hadn’t received their papers before Trump’s April 23 proclamation banning U.S. entry to certain visa holders, a decree the president extended in June.

“Assuming Plaintiffs ultimately succeed on their claims, an order instructing the State Department to process these reserved visas would not create any conflict with the INA because ‘such an order would give effect to the district court’s prior directive, entered before the end of the selection FY, to preserve an essential (and otherwise expiring) ingredient of relief,’” Mehta said.

Attorneys for the plaintiffs, at a hearing Sept. 28, asked the judge to reserve 30,000 of the unused DV lottery numbers and extend the date by which the government has to issue them until the end of February, accounting for the five months that processing was stalled because of the pandemic.

In his ruling, Mehta said that he reached the 9,095 visa number by roughly calculating how many visas would have been issued by the agency between March 20 and Sept. 9 without the complications of the contagion.

“As a court of equity, the court cannot place Plaintiffs in a better position than they would have been in but for the State Department’s legal mistakes,” he said. “At most, the court can endeavor to place Plaintiffs in the position they would have been in but for the errors.”

Arguments on Additional Relief

In court, Mehta questioned whether he was authorized to provide that kind of relief by “prospectively” asking the government to process visas before there’s a final order on the merits of the case.

Attorney Charles Kuck, of Kuck Baxter Immigration Partners LLC, responded that this particular situation had never arisen before. “The federal government has never failed to act on its statutory duty to process visas like this, not even after 9/11,” he said at the Sept. 28 hearing.

The government opposed the plan to reserve visas when the parties met last week.

Justice Department attorney Thomas York argued that Congress was clear in imposing the time limitation on the diversity visas to the fiscal year and that “ultimately that’s something Congress imposed that the State Department can’t work around.”

York also said the situation has arisen from a “once in a century pandemic,” and “in the midst of all of this, people are trying to figure out how to meet their statutory requirements and keeping their employees and the people they serve safe.”

The State Department didn’t immediately respond to an after-hours emailed request for comment.

The case is Gomez et al v. Trump, D.D.C., No. 1:20-cv-01419, opinion 9/30/20

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com

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