Tuesday, August 13, 2019

D.C. Circuit Says Diversity Visa Case Not Moot (even after Trump v. Hawaii)

The D.C. Circuit ruled today in Almaqrami v. Pompeo that plaintiffs' claim against the government for denying them "diversity visas" was not moot, even though the plaintiffs are from countries covered by President Trump's travel ban, upheld under Trump v. Hawaii. The ruling sends the case back to the district court for a decision on the merits. By the plaintiffs' own reckoning, however, even a win (alone) wouldn't guarantee their admittance to the United States.

The plaintiffs, nationals of Iran and Yemen, won the 2017 diversity visa lottery. But they were denied visas pursuant to a State Department Guidance Memo, instructing consular officers about how to evaluate diversity visa applications in light of Trump v. Int'l Refugee Assistance Project (the Court's earlier ruling allowing President Trump's executive order (2) to take effect while the Court considered appeals of the preliminary injunctions against the travel ban). They sued, arguing that the relevant section of the Immigration and Nationality Act authorized the President to restrict only entry, not visas, and that their denial violated the INA provision that bans discrimination by nationality.

Just before the end of Fiscal Year 2017, the district court ordered State to "hold those [unused diversity] visa numbers to process [p]laintiffs' visa applications in the event the Supreme Court finds [EO-2] to be unlawful." (Recall that the President replaced EO-2 with the (third) version of the travel ban that ultimately went to the Court.)

After the Court upheld the travel ban in Trump v. Hawaii, the government moved to dismiss the case as moot, arguing that EO-2 and the guidance memo under which the consular officers denied the plaintiffs visas were now expired, and that the district court's order was conditioned on the Court ruling that EO-2 was unlawful (which didn't happen).

The district court accepted this argument and dismissed the case as moot, but the D.C. Circuit reversed.

The D.C. Circuit ruled that because the district court issued its order before the end of Fiscal Year 2017, it could still grant relief to the plaintiffs (by ordering State to grant the visas). As to that language that seems to condition relief on the Court striking the travel ban (which of course it didn't), the D.C. Circuit said that the district court's order could be read to mean (1) that State must hold unused diversity visas to enable a later court judgment and (2) that a specific judgment would issue if the Court ruled a certain way. (1) allows the district court to order State to issue the visas; (2) would've required it.

Moreover, the court said that the plaintiffs could still get the relief they sought. That's because the district court might agree with them that the travel ban only applied to entry, not visas, and that the INA prohibits discrimination in issuing visas by nationality--even under Trump v. Hawaii. The court didn't opine on those questions, however; instead, it sent the case back to the district court for a ruling on them.

A win in the district court (or on appeal) could mean that the plaintiffs get their visas, and even get consideration under exceptions to the travel ban. But actual entry will require more: a decision that they meet an exception to the travel ban.

https://lawprofessors.typepad.com/conlaw/2019/08/dc-circuit-says-diversity-visa-case-not-moot-even-after-trump-v-hawaii.html

Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink

Comments


Thanks for that very interesting one. Typically, the doctrine of mootness is based upon classic expiration or calculation of dates, so, rendering an issue or controversy not alive anymore ( with the exception of repetitiveness and theoretical / effective issue, that if not solved, would always stay theoretical as such ). But here we have another factor introduced, which is the " on merits one ".Here I quote the circuit:

The parties dispute whether the district court may lawfully take steps to grant plaintiffs relief, notwithstanding the fact that FY 2017 is over. This question goes to the merits, and because plaintiffs’ argument that the district court may do so is not “so implausible that it is insufficient to preserve jurisdiction,” the case is not moot. Chafin, 568 U.S. at 174 (explaining that an argument about “the legal availability of a certain kind of relief” is a merits question).

End of quotation:

However, even under Trump v. Hawaii things can change or are flexible in this regard. For, the president, has left further options for softening restrictions, if states listed there, would better cooperate and provide more information about aliens coming to the US (as one example for cooperation). So, even if visas and entry are on the same level, things may change, and aliens forbidden currently to enter , may be permitted later by the way.

Thanks

Posted by: El roam | Aug 14, 2019 8:19:29 AM

Post a comment