Tuesday, August 13, 2019
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.