Judge Mehta will shortly be holding a hearing to decide whether to “extend” DV2020 or not.
I say extend in quotes, because it actually would not be an extension mostly likely, but rather the Judge would tell the government to reserve some number of visas to be held (reserved) for issuance after the deadline. Those visas would probably have a September 30th issuance date on them using a legal method of “nunc pro trunc”. This would allow them to “backdate” the visas issued – thus avoiding the difficulties of changing the law about the deadline. It will be interesting to see if that’s what they do.
We are likely NOT going to see an order today. It is likely the Judge would give his decision tomorrow or Wednesday.
Key points I would be looking for from that decision:
- How many visas will be reserved?
- Is there a timeline for processing of these visas?
- Is there any difference in priority for named plaintiffs, or for people in each group that I have previously defined?
- How about people affected by the other bans affecting issuance (regional bans, travel bans etc)?
- Will the DV visas still have mission critical status?
- Will anything be done about the embassies that have not cooperated at all?
If you want to listen in you can do so. Members of the public or media who wish to access the hearing may dial the court’s toll-free public access line: (877) 848-7030 (+1 (404) 443-2170 from overseas) access code 321-8747
I will be adding notes here during the hearing, so keep refreshing the page to get updates.
JM – Judge Mehta
JB – Jesse Bless
CK – Charles Kuck
RU – Rafael Urena
Gov – Gov legal team
Hearing due to start in one hour – at 3pm EST.
The lawyers and the Judge will be meeting over video – public access is audio only (numbers shown above).
What time is it in Washington DC? – LINK HERE
Audio is very muffled.
JM says he has all the parties papers – he is asking for last points.
CK – interesting in hearing the Judges questions
CK asking for 30,000 visas to be reserved and also for the time to be given back that was “lost” – meaning the end of February.
Judge asking for similar cases where this sort of relief has been ordered by a court. Trying to establish precedence.
CK points out no earlier examples exist because this scenario is new. CK points out that all the cases have submitted DS260s and documents. KCC stopped processing. That makes it “new”.
Welton tries to clarify the difference for these cases, but also how the earlier limited cases demonstrate the precedence exists.
Remember, JM already has an opinion on this, but he wants the plaintiffs to be clear about existing law that covers what they are asking for.
Welton points out that the government “violates the INA” and therefore we need a remedy.
JM clarifying whether we are asking for continuance of the current scenario, OR remedy as a result of the violation.
Welton wisely declines to choose between the choices offered by the judge.
JM points out one request would require the judge to find that they had violated the earlier order.
CK jumps in – and argues that an extension without a final ruling is not a risk – he is allowing for the chance that he temporarily allows ongoing processing, but delays finding a final position.
JM now pushing toward the timing of the issue date compared to other bans.
JM turns to class certification. Does he need to certify the class. Welton argues yes. Remember the class action turns the 7 named plaintiffs on the AILA case (Gomez) to EVERY DV lottery case.
JM now questioning about named plaintiffs and whether those have been interviewed or not. CK points out that more than a handful have not been seen.
JM turning to the reservation number.
CK makes the point that the global quota has increased – good point. JM seems nervous of reserving 30,000 visas.
CK describes the rationale for the 30K number. Capacity is sufficient. JM trying to drive to what the unlawful act caused. He will drive back to the June 15th date. He is saying COVID would have caused problems anyway – so he wants to do what is right based on when the unlawful behavior began.
CK pointing out the slow walking of visa issuances prior to the COVID closures and explains that the under issuances was intentional, not due to COVID. That is exactly correct, but JM doesn’t want to open the box on the behavior prior to COVID.
CK fighting hard, but this is a difficult point to make.
Welton adds in to link back the behavior back to March.
Welton says it is up to the GOV to define their capacity – although my declaration does describe the capacity with proof based on previous data.
CK points at the declarion of Brenda Grewe (which had referred to July 15 for some reason). That declaration was pretty odd, but does show that the GOV slowed down processing.
CK points out that KCC has not provided a declaration. Points out this is a way the government has hidden that information (from KCC).
JM turns to the GOV.
GOV wants to refer to limits on equitable relief, and suggests that the court cannot violate the clear statute – the deadline. JM says you are saying the court is powerless but points out that taking action before the deadline is important.
Lots of legal jargon and reference to an earlier case where the visa was held in reserve (but so far not issued).
JM trying to challenge the assertion that he lacks the jurisdiction to give relief.
Again, remember it is important that JM gets to hear and challenge BOTH sides of the argument.
JM referring to other appropriation case precedent that allowed a court to “extend” a deadline past a statutory date. Asks GOV if they are familiar with those cases – GOV says no. BAM!
As I said, Judge would not have gone this far if he thought he had no power, but needs both sides to argue that.
The audio seems to have been messed up. And we’re back.
JM now asking GOV if the case would be “moot” – that means pointless after Sept 30th. Again, JM has a view on this already – but establishes that GOV relies on that as a principle.
JM testing the logic that allowing the clock to run out seems against the intent of congress in establishing the lottery. Congressional intent is important. They created the lottery – that should mean the government can’t just ignore it!
GOV going back to the fiscal year being a deadline in the statute. JM (adopting a challenging stance) says why should the deadline stand if the GOV did not do their work.
Welton says he doesn’t have an argument why this date should stand, versus other cases…
Welton points out embassy bombing case and administrative errors case.
GOV Suggestion of an alternative which would only cover groups 1 and 2 to allow time for those that have had interviews.
GOV says the effort to comply to the earlier order have worked hard to try their best including some of the officers getting COVID and continuing to work. This is a fair point in many of the embassies.
Points out that KCC complied with the instruction on prioritization of named plaintiffs.
JM asking for GOV to file update to initial report which detailed case handling volume and projections for various categories including IR1 and IR2.
JM refers to a survey that suggests 80% of respondents said they had not been helped. GOV tries to address some of the cases. Lots of “dog ate my homework” stuff.
Welton now arguing that reserving JUST for AP cases would not be fair.
Welton about to play a short recording of a phone call.
KCC call recorded being played of an AF region call. This was a non plaintiff, KCC rep says that the documents were not processed from November, so he won’t get an interview.
CK points out that we understand they have worked hard – and therefore that is why we need extra time, not force a rushed stressful job.
He also points out that they could organize the work better by planning the workload and using things like video interviews if needed for safety.
JB points out that re-issuance should also be taken into consideration.
CM pointing out they had pointed out the congressional funds case was in their brief. hearing.
JM ending the hearing.
I will go live now to discuss the hearing