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AILA Doc. No. 20091614 | Dated September 16, 2022
For more information, check out Innovation Law Lab’s page on Gomez v. Trump.
Dear Gomez Diversity Class Members,
You are receiving this email from counsel in Gomez v. Trump because you responded to a call for plaintiffs from BritSimonSays.com or contacted us directly as a DV-2020 selectee and/or an individual acting on their behalf. If you are a FY2020 Diversity Visa Selectee who did not receive a diversity visa on or before April 23, 2020, you are a class member in the certified Gomez class.
We are writing to provide an update on the Gomez case and recent developments that may affect the class.
On Tuesday, President Biden signed an Executive Order directing a review of agency actions that are inconsistent with the administration’s policy that “immigration processes and other benefits are delivered effectively and efficiently.” However, neither this Executive Order nor others signed by President Biden this week rescind or make any explicit reference to the immigrant visa ban (Presidential Proclamation 10014) or nonimmigrant visa ban (Presidential Proclamation 10052). These Proclamations thus remain in effect and continue to prevent certain immigrants (including DV-2020 selectees) from entering the United States through March 31, 2021. This means that, for now, DV-2020 selectees are still not allowed to travel to and enter the United States.
We do not know if the Biden administration will rescind the Proclamations before the expiration dates of DV-2020 visas that were issued in September 2020 pursuant to the Judge Mehta’s September 4 order. Gomez class counsel will thus be taking appropriate steps to seek to preserve the validity of these visas and to preserve the relief granted by the court. If you are a Gomez class member who was issued a diversity visa and your visa has already expired, or your visa is scheduled to expire before March 10, 2021, please contact class counsel through this link.
Meanwhile, briefing for summary judgment continues before Judge Mehta in the Gomez case. On January 20, the government filed its Motion for Partial Summary Judgment. Yesterday, Gomez class counsel filed Plaintiffs’ opposition to the government’s motion, along with our own summary judgment motion. You can read our filing here. The government now has until February 17, 2021, to oppose and reply to Plaintiffs’ filing, and Plaintiffs have until March 3, 2021 to reply to the government’s opposition. As per the court’s order, summary judgment briefing is limited to claims regarding the Administrative Procedure Act, mandamus, and related claims concerning visa adjudication and issuance.
At the same time, Gomez Plaintiffs continue to pursue their appeal of the district court’s decision that the Proclamations are not unlawful. Gomez class counsel argued this appeal before the D.C. Circuit on January 14, 2021, and the appeal remains pending before that court. You can listen to audio of that argument here.
American Immigration Lawyers Association
Justice Action Center
Innovation Law Lab
The Law Office of Laboni A. Hoq
Dear Gomez Class Members,
We write to update you on the status of the Gomez case. As you may have heard, on Wednesday the federal court issued an order certifying a class of 2020 Diversity Visa Selectees and requiring the State Department to reserve 9,095 diversity visas for processing once we win our case on behalf of the class. The court also appointed the lawyers at the American Immigration Lawyers Association, Justice Action Center, and Innovation Law Lab as class counsel. Please read the court’s order here.
We are disappointed that the court did not order the State Department to reserve the full 30,000 visas that we had requested. The court’s order reserving only 9,095 visas means that more than half of all DV-2020 Selectees will not receive a diversity visa. If we win our case, we assume, but cannot be sure, that the State Department will process and issue the 9,095 reserved visas in numerical order based on diversity visa confirmation number.
You are automatically a member of the certified class if you are a DV-2020 Selectee but have not yet received your 2020 Diversity Visa as of April 23, 2020. You do not need to take any additional steps to become a member of the class, and you will not receive any documentation from the court or counsel of your membership.
Please note that the diversity visas that the court ordered the State Department to reserve will not be processed or issued immediately. We must continue litigating the case in federal court. If we win, the State Department will be required to process and issue the reserved visas.
We understand and appreciate that the uncertainty this has created has been challenging for you and your families, and we will continue to advocate on your behalf. We will continue to share any important updates about the status of the case. We will also post updates on our websites, which are listed below. If you would like to subscribe to our email updates, please click here.
American Immigration Lawyers Association, www.aila.org
Justice Action Center, www.justiceactioncenter.org
Innovation Law Lab, www.innovationlawlab.org
An oral argument took place the morning of September 16, 2022. As expected, the argument was largely questioning, which was probing, yet evenhanded. The three-judge panel consisted of Chief Judge Srinivasan and Judges Katsas and Henderson. Srinivasan and Katsas clearly discussed the case at length in advance of the oral argument and focused on (1) whether the proclamation was legal pursuant to 8 USC 1182(f), and (2) the equitable power of courts to reserve visas.
Both issues were hard fought, but Gomez et al. appear to have a chance at success regarding the argument that the most straightforward reading of 1182(f) is that presidential proclamations can only effect entry, not visa issuance. Yet, Judge Katsas noted that he continued to question the view that consular officers need to continue to issue visas where applicants are ineligible to enter.
The argument regarding reservation was vigorous, yet there were signals that Judge Katsas and his clerks independently research the issue. He noted there have been three Supreme Court cases in the last decade holding that equity is not a license to ignore statutory requirements.
Judge Henderson weighed in very little, but stated her opinion that consular nonreviewability governed in this case where consular officers denied visas based on a presidential proclamation and other priorities.
On October 13, 2021, the government filed a notice to appeal. The government has requested an extension to file its initial appeal briefings until February 17, 2022. The government has also provided its first status report update on January 11, 2022, with an accompanying supporting declaration, which indicates that it will take at least four months to implement technological updates before it can begin adjudicating the 9,095 DV-2020 visas reserved for plaintiffs.
The U.S. District Court for the District of Columbia ordered the defendants to commence processing the 9,905 DV-2020 visas as soon as is feasible, and to conclude such processing no later than the end of FY2022, or 9/30/22. The court instructed that the reserved visas must be issued to eligible qualified immigrants strictly in a random order pursuant to INA §203(e)(2). The court will also require the government to file periodic reports indicating how many reserved DV-2020 visas it has adjudicated; the first such report is to be filed by 1/11/22, and additional reports shall be filed every 60 days thereafter until adjudication of the reserved visas has concluded. (Gomez, et al. v. Biden, et al., 10/13/21)
On August 17, 2021, the U.S. District Court for the District of Columbia ordered the Biden administration to issue 9,095 diversity visas from FY2020 that the court reserved. Read the press statement from AILA, Justice Action Center, and Innovation Law Lab.
The government provided an update to the court stating that:
Defendants provide the Court with notice of recent action taken by the Secretary of State regarding certain Plaintiffs in this matter. On February 24, 2021, Secretary Blinken granted national interest exceptions under Section 2 of Presidential Proclamations 9984, 9992 and 10143 (the “COVID-19 regional proclamations”) to individuals holding a valid diversity visa issued during fiscal year 2020. See Rescission of Presidential Proclamation 10014, https://travel.state.gov/content/travel/en/News/visas-news/rescission-of-presidential-proclamation-10014.html (last visited Feb. 26, 2021). And, as Defendants previously noted, ECF No. 215, the President issued Proclamation 10149, which revoked Proclamation 10014, along with section 1 of Proclamation 10052, and section 1 of Proclamation 10131. See The White House, A Proclamation on Revoking Proclamation 10014, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/a-proclamation-on-revoking-proclamation-10014/ (last visited Feb. 26, 2021).
Granting in part the plaintiffs’ motion for emergency injunctive relief, the U.S. District Court for the District of Columbia ordered the government to treat all visas issued or renewed pursuant to Gomez v. Trump as having been issued in the first instance as of the date that the court renders a final judgment in the case. The order thus preserves the rights of the DV-2020 plaintiffs and the court’s jurisdiction while the case is pending, with two caveats: (1) In the event that the proclamations are rescinded or expire without renewal on or before 3/31/21, the DV-2020 plaintiffs’ challenge to the proclamations will become moot; and (2) The order does not apply to DV-2020 plaintiffs whose visas will expire or were set to expire between 2/17/21 and 2/28/21, in light of DOS’s decision to grant national interest waivers to such DV-2020 visa holders. (Gomez, et al., v. Biden, et al., 2/19/21)
For more information, read AILA and its partner’s press release: Court Preserves Validity of 2020 Diversity Visas.
AILA and litigation partners filed a notice with the court to advise that notwithstanding previous indications that President Biden would promptly “sign an executive order rescinding the proclamation[s] that suspended certain immigrant and work visas,” the administration has not taken such action.
The U.S. District Court for the District of Columbia issued an order reserving an additional 9,095 DV-2020 visas for processing pending final adjudication on the merits. The court also appointed AILA and its partners as counsel for the certified class. An expedited ruling on appeal from the court’s order has been scheduled for argument on 1/14/21.
The judge issued an amended order enjoining DOJ from applying or enforcing a 14-day quarantine requirement to DV-2020 selectees and their derivative beneficiaries from five regions (China, Iran, the Schengen Area, the UK, Ireland, and Brazil).
In an amended order, the judge added the following text:
The court enjoins the State Department from applying or enforcing the Quarantine Requirement for DV-2020 selectees and their derivative beneficiaries.
This Quarantine Requirement refers to the following text from DOS guidance issued on September 9, 2020:
The five Regional COVID Proclamations that suspend entry of immigrants who were physically present in China, Iran, the Schengen Area, the UK, Ireland, or Brazil within 14 days of entry into the United States are still in effect and not the subject of the Court’s order. Thus, while DV applicants subject to a regional COVID Proclamation (China, Iran, the Schengen Area, the UK, Ireland, or Brazil) may be interviewed and processed, applicants who have been physically present in the affected region during the preceding 14-day period will not be issued an immigrant visa, unless excepted under the relevant proclamation or until they have been outside the affected region for 14 days.
The italicized text above required DV-2020 selectees subject to the five Regional Proclamations to quarantine for a 14-day period outside the subject regions before becoming eligible to receive a DV-2020 visa, unless an exception applied.
The district court granted preliminary relief in part, finding that the plaintiffs are likely to succeed on their claims related to DOS's non-processing of 2020 diversity visa applicants. The judge granted an injunction that should allow this year’s eligible diversity visa class to obtain visas immediately. (Gomez, et al., v. Trump, et al., 9/4/20)
For more information, please check out:
AILA provides the declaration of Brianne Marwaha, DOS Division Chief in the Bureau of Consular Affairs. These documents were released as part of the Gomez v. Trump litigation and included: the complete administrative record containing all policies, guidance, directives, orders, cables, or communications by the U.S. Department of State that implement, carry out, or administer Proclamations 10014 and 10053 at issue in the Gomez v. Trump litigation.
AILA and partners filed a motion for a preliminary injunction and class certification, arguing that the April 22 and June 22, 2020, presidential proclamations were invalid, are causing irreparable and unjustifiable harm, and should be enjoined. (Gomez, et al., v. Trump, 7/31/20)
AILA, Justice Action Center, and Innovation Law Lab, with pro bono support from Mayer Brown LLP, filed an amended complaint in Gomez v. Trump, marking the first legal challenge to the entirety of President Trump’s immigration ban. (Gomez, et al., v. Trump, et al., 7/17/20)
Twenty-three individual and organizational plaintiffs, including family-based immigrant visa petitioners, diversity visa lottery winners, and nonimmigrant visa sponsors, including those who want to bring in healthcare professionals from abroad to help during the pandemic, sued to prevent the devastating effects of President’s Trump’s unlawful and unconstitutional immigration ban, originally filed on April 22 and extended on June 22. If allowed to remain in effect, according to the White House’s own estimates, it will block approximately 525,000 people from entering the United States. Experts estimate that it will prevent approximately 20,000 employers from bringing needed workers into the United States.
Representatives from AILA, Justice Action Center, and Innovation Law Lab react to the carve-out exemption in President Trump’s immigration ban expansion for children or child relatives who could be separated from their families if they age out while the ban is in effect. The press release notes, “On Tuesday, June 22, President Trump issued a new proclamation unlawfully extending and expanding the ban, but included in his new proclamation an important carve-out exemption for children or child relatives who could be separated from their families if they age out while it is in effect. Because of the courageous plaintiffs in Gomez v. Trump, children at risk of aging out, who would have faced a potential lifetime of family separation, will now keep the opportunity to receive their visas without being subject to the unlawful ban.”
The U.S. District Court for the District of Columbia denied the plaintiffs’ motion for a temporary restraining order (TRO) to prevent the defendants from implementing or enforcing Presidential Proclamation No. 10014, Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak, against the plaintiffs, who feared that enforcement of the Proclamation against their beneficiaries would cause them to age out of their minor preference categories before they receive visas and enter the United States. The court found that the plaintiffs had not shown that they had standing at the outset of the case, and that their claims had become moot or have remained unripe since the litigation began. The court also denied the plaintiffs’ motion for class certification. However, the court retained jurisdiction over the case while one of the beneficiary’s visa application proceeds. (Gomez, et al. v. Trump, et al., 6/23/20)
June 2, 2020 Advocates filed an filed an emergency motion for a temporary restraining order (TRO).
June 2, 2020 The plaintiffs filed a motion for class certification.
AILA and partners filed a complaint requesting a preliminary and permanent injunction enjoining the government from implementing or enforcing any part of the April 20, 2020, Proclamation (“Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”) so as to deny or refuse consideration of the plaintiffs’ and other class members’ visa petitions on behalf of their children who may age out. (Gomez, et al., v. Trump, et al., 5/28/20)
Cite as AILA Doc. No. 20091614.
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