As I mentioned on Friday, there is a hearing today for the legal team to challenge various aspects of the way the government agencies are prioritizing cases, not issuing in where the COVID related regional restrictions are in place and so on.
The hearing details are here.
The parties shall appear for a telephonic hearing on Plaintiffs’ Request for an Emergency Status Conference, ECF No. , on September 14, 2020, at 3:00 p.m. Defendants shall file a response to Plaintiffs’ filing by no later than 12:00 p.m. on that day. (Washing DC timezone).
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, access code 321-8747
The government has already lodged its written reply to the complaint – you can read their responses here.
I will listen in and update this article as the hearing progresses.
Rollcall of various lawyers for the plaintiffs – over 10 including the following:
JM going to address the 5 issues raised by counsel.
Charles Kuck lays out the issues and points out the government is still refusing to issue, when they only have the right to refuse entry. This is particularly damaging for Regional restrictions. He says the gov is disregarding the “crystal clear” order.
JM asks for approximate numbers of people affected by the regional orders. CK estimates that as being 30/35% – that’s a bit high, but it would certainly be thousands of people in the various groups.
CK points out the “impossibility clause” of the current government position.
JM questioning why the regional bans restrict issuance. He is pointing out that there is an additional layer/requirement to travel outside the restricted area – that being an additional “hurdle” for certain people. He gets the unfairness.
Government lawyer is waffling.
JM says the government are “dancing on the head of a pin”. Quite.
JM points out they have no statutory authority to stop processing visas. And as a practical note recognizes the absurdity of forcing people to travel outside the affected area to get the visa.
Gov lawyer says it does “look a little strange”. Oh really?
Love this Judge. He gives them enough rope to hang themselves.
Gov lawyer talking about hotspots. That’s NONSENSE.
Gov lawyer tries to say the other regional proclamations did not come up. They made those proclamations an issue.
JM points out there is nothing in those regional proclamations about issuance. Points out gov added an additional layer and without reason.
JM questions whether he can “do anything about that today”.
Charles Kuck – points out that GOV response is “untrue”.
JM trying to decide what he can do.
Charles Kuck points out JM can fix this and says “DoS want you to do it”. We hear no argument to that last point – and it is probably true.
JM says he needs to “think about it” – referring to how he can provide relief. He clearly understands the regional restrictions should not be applied to this, but is trying to decide how he can “add on” to stop the harm.
CK provides Supreme Court guidance to encourage the judge to rule on this.
Gov says they have not been acting in bad faith.
Gov accepts the point that Kuck said – that having clarity in the order would be helpful. THEY WANT to be told what to do! They point out that the deadline got moved to September 15 because of the 14 days.
JM again points out that was because of State Dept decision.
JM says he is going to take the request as a motion – so he will try to do something for the regional restrictions.
JM moving on to other points. Not prepared to rule or hint about extension – but is still deciding whether he has the power. He seems to lean toward extension while the ban is in place until Dec 31. That could be good. He might be leaning toward giving some time back once Dec 31 is passed! BUT he will NOT rule on that today.
Jesse Bless asks to move the report up to the 21st. Gov agrees. JM says he is fine with getting the status report only on Monday (21st).
JM moving to 3rd issue – extension of medicals. CK asks for extension of medical exam which drives the validity of the visa itself.
CK points out that some countries limit medical validity to 90 days. The only time I am aware of that is for specific medical conditions (TB for example).
JM points out a 90 day validity is useless – Gov agrees. Says it would be “difficult”. Says it would take some time to approach CDC for a change in that policy.
Charles Kuck is sharp as a tack.
JM encourages the parties to talk about it and points out that medical can add a layer of complexity – suggests State does something with CDC.
JM moving to 4th issue. Non named plaintiffs. JM says he would rather do something on those next week. He wants to do as much as he can to help non named plaintiffs.
JM confirms he wanted to help ALL, not just named.
CK pointing out KCC not helping non named.
JM says that is not entirely consistent to the order (for KCC to say people are out of luck).
JM moving to 5th issue – the two countries mentioned. JM not prepared to order something special for Cuba and Azerbajan.
JM wrapping up
Raphael Urena pointing out the danger of people being forced to travel to third countries. JM asks what would you like me to do about it.
Gov says essentially – we have always done it this way – JM not having that argument! He says – show me where there is written justification for that.
That concludes the hearing.
Comments about the hearing: