Lawsuit hearing notes

I am going to listen to the hearing and capture notes here as the hearing continues. I may only be able to attend for one hour, so after that I would appreciate if others can add comments about progress. BUT to keep it clear, please HOLD YOUR QUESTIONS until after the hearing has ended, so that the only comments are people adding notes for the benefit of those who cannot listen in.

You can refresh this page for live updates.

My time notes are based on my time zone – Pacific.

I will use the following abbreviations:

JM – Judge Mehta

Gov – Lawyers on behalf of the government

PL – Plaintiffs lawyers which may be one of several different lawyers.

Lawyers for PL in speaking order:

Rafael Urena

Charles Kuck

10:07 – Technical difficulties causing a small delay.

10:09 – Charles Kuck is probably firing his IT guy right now.

10:12 – sounds like the hearing will last at least 90 – 120 minutes.

Just setting up the call order for the multiple cases that are being heard today.

10:16 – JM microphone is rather muffled

PL explaining that they accept the EO was “properly implemented” but the intent or effect of the EOs was the problem

10:21 – JM looking to clarify that State is not adjudicating visas at the moment and PL refers to some of the disclosed documents/cables

PL pointing out that although a handful of cases were adjudicated that is still a huge block on the vast majority of cases (remember this is about DV and non DV cases)

PL making the argument that the administration overstepped their authority when they stopped adjudicating cases, when the administration only had rights to stop entry (and therefore should have continued to adjudicate cases).

10:27 JM questioning the “mechanics” of how the entry versus adjudication would work.

JM said it makes sense that DV cases would want to be awarded the visa (whilst not being able to enter the USA), whilst the logic may not apply to other types of cases. He is “testing” the theory to see the scope or power of the argument being made.

JM clearly understands the unreasonable delay aspect of the case which particularly relates to DV.

JM asks for DV cases – what are you asking for – what remedy? PL responding that they want to force the government to adjudicate cases (expedited).

1182F

JM/PL discussing the addition of additional eligibility requirement (national interest waiver) – which PL is describing as incorrect.

JM clarifying that congress has power to add conditions, but asking how the Sec of State can do that. For example – could the SoS unilaterally add a rule whenever they feel like – did congress give that authority?

PL explaining that withholding of issuance is an additional “condition” – which is unlawful. JM directs PL to refer to that part of the complaint.

10:39 – moving to Charles Kuck. Go Charles!!!!

Thank you Charles for pointing out the muffled tone.

10:42 – Charles explains that the “slowalking” of cases started BEFORE the COVID crisis. He is absolutely correct – and that reveals the bad intentions of the administration.

Charles pointing out that embassy staff have remained at posts around the world. NZ, with no COVID cases, they have not been adjudicating cases – why not. Clearly bad intent.

YES there are cases in NZ – they had 181 winners for DV2020

Charles Kuck pointing out that administration took advantage of the COVIOD crisis for achieving what Trump really intended – to take away the rights of the selectees.

JM now probing the setting aside of visas to next year. This is important!

Charles Kuck describing the request that because of the bad faith causing the delay, that should not benefit the administration in achieving their obvious goal.

JM is describing the statute (law) that does not allow the visas to go beyond the deadline.

Charles Kuck argues that the bad faith means the court has the power to extend the deadline.

Charles Kuck asking for two orders.

1. Mandate (force) the government to adjudicate the visas before the Sept 30th deadline.
2. If that cannot be done – then extend the deadline (retroactively issue the visas)

10:54 someone needs to mute!

10:56 PL speaking clarifying that emergency measures can be implemented.

JM asking why make this a class – RU making the point that an injunction should be across the board – therefore fair to all.

PL pointing out that administration sought to rewrite parts of the INA (law on immigration), and therefore the EOs were invalid.

Exploring a Hawaii case to test the separation of powers construct.

JM trying to explore the central point about admission versus eligibility

JM is convinced that 1182F gives the power to block ENTRY into the USA. The DoS used that power to justify stopping adjudication/issuance of the visas.

Some discussion about other examples where the administration can do things “in the national interest” PL making the point that this is not intended to be “universal” in scope.

Delegation meaning congress delegating powers of administration. There should be some restriction/limit on this, otherwise Congress will have delegated all their powers away – and that clearly is not what the constitution intends.

11:15 new PL starting to talk about the “Panda case”. This case is not DV related. But similar arguments will be made.

Clarifications about the wording of the proclamation. This is about people that were H1-B employees – they travelled outside the USA, and now needed a “travel document” to allow their travel. These people HAVE H1-B status – and were already working in the USA. The Panda case should be a slam dunk.

Panda case still being discussed. Interesting – but not related to DV.

11:30 JM is going to take a 10 minutes break. They will resume shortly.

11:40 – about to resume.

GOV – introducing themselves.

JM asking PL lawyer Mr Weldon a question. Why do they need/deserve emergency relief (a special process) rather than standard processing.

Weldon answers because of the time pressure.

Back to DoJ lawyers

The following will be the GOV arguments against each of the suits.

GOV confirms their earlier mistake that only 12k visas have been issued – their earlier answer was misleading, because they don’t understand the subject very well, frankly.

GOV challenging “standing” or lack of evidence provided by the plaintiffs. JM not likely to accept either of those points.

Wow – Trump’s A team of lawyers must be busy paying off strippers.

JM is asking whether 4 weeks is enough time to issue the visas. It’s not enough time – but that is because of the administrations decisions.

GOV trying to say the embassies aren’t open – JM points out that could be dealt with…. (he is referring to imaginative measures for example video interviews).

GOV refers to Gomez case as being problematic because there are THOUSANDS of DV cases – too many to be handled as emergency. JM clearly understands that at least some cases could be handled – therefore there is that aspect of standing.

GOV is saying “this is a lot to ask”. And that the burden is on the plaintiffs. JM asking tough questions – making the point that adjudicating the case should be possible – the plaintiffs don’t need to show they would win.

GOV is blaming COVID. And the dog ate their homework. Like the earlier New Zealand argument, JM now pointing out Japan is able to work.

Another GOV lawyer starting to talk. JM looking to establish that the proclamation/EO can be challenged if the effect is unlawful.

Ultra Vires = “acting or done beyond one’s legal power or authority.”

JM pointing out that processing & adjudication was stopped for DV applicants – GOV describes it as a “pause” because these are not “mission critical”.

GOV saying the DV visas will not be processed in the next 5 weeks because of the proclamation. This is important to establish harm is caused.

GOV referring to 1201(g)

“

(g) Nonissuance of visas or other documents

No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law, (2) the application fails to comply with the provisions of this chapter, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law: Provided, That a visa or other documentation may be issued to an alien who is within the purview of section 1182(a)(4) of this title, if such alien is otherwise entitled to receive a visa or other documentation, upon receipt of notice by the consular officer from the Attorney General of the giving of a bond or undertaking providing indemnity as in the case of aliens admitted under section 1183 of this title: Provided further, That a visa may be issued to an alien defined in section 1101(a)(15)(B) or (F) of this title, if such alien is otherwise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of the giving of a bond with sufficient surety in such sum and containing such conditions as the consular officer shall prescribe, to insure that at the expiration of the time for which such alien has been admitted by the Attorney General, as provided in section 1184(a) of this title, or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 1258 of this title, such alien will depart from the United States.”

JM probing the issuance of visas as different to entry. JM pointing out that 1202 is about ISSUANCE, whilst the administration assumed powers under 1182(F) – regarding ENTRY.

Just to point out – the Judge will also probe from both sides. When the plaintiffs lawyers were talking he gave them challenging questions from an opposing point of view. He is now doing the same to probe the GOV lawyers. Sounds like he flipped – but that is normal.

JM asking GOV to point out where the law says the administration don’t have to adjudicate – when the GOV lawyer paused, JM says – “don’t worry, it’s not there”. Haha!

GOV making a circular case that people can’t be issued, because they can’t be interviewed. Sheesh. Why is that? My twelve year old argues better than that. Mind you, to be fair – they don’t have much to defend on.

JM clarifying that there were new criteria introduced. Again, that is an important point. He is boiling the arguments down to specific points. To simplify the arguments to be able to rule on clear points.

GOV trying to say no new eligibilities were introduced – JM asking for the law that explains that, in respect to H1s as an example.

JM putting another example about blocking immigrants if Trump says they commit more crimes than existing residents (known to be incorrect). Hypothetically, could POTUS block immigrants for that, and could a Federal Judge block that action. JM trying to establish whether there is ANY limit on POTUS’ power. There is, by the way – and JM knows that.

JM back to the point that there should be some evidence that justifies the EO action. GOV says none is required. JM may or may not accept that argument.

They are talking about non-reviewability. JM believes that applies when a case has been adjudicated.

Now moving to separation of powers – GOV says this is like the visa waiver program – an earlier case. JM asks for explanation of why POTUS should have such wide powers.

12:42 GOV trying to articulate their position. I wish they would.

Just understand, JM might ask questions that seem like he doesn’t understand the laws involved. He does.

JM can see how 1182(f) about entry makes sense that POTUS has that power, but that is NOT about adjudicating cases.

JM trying to summarize.

JM trying to follow up on why GOV feels DV should not be treated as emergency cases like some other visa classes.

GOV trying to say the EO was clear, JM points out that DV was not called out for especially BAD treatment. So – age out cases for example should be the same as DV – both deserved emergency treatment. To be clear, DoS decided things based on what they assumed Trump wanted or were told. JM asks whether there is documentation that explains that rationale.

GOV again making the case that they can’t be expected to do a lot of work. Poor darlings. JM pushes for where the administrative record documents that rationale.

Oh man, GOV just introduced arbitrary and capricious, dangerous ground with this POTUS.

Going to take another break of 5 minutes then wrap up with rebuttal arguments.

OK – we’re back.

JM asking for “national interest exceptions” clarification.

GOV says some worker visa categories and some family visas are qualified for the “national interest exceptions” and mission critical cases.

PL pointing out at least one case in NZ – because this goes to the earlier point that NZ could have been processed in NZ – and therefore the cases are being treated arbitrarily. There should be equal treatment under the law.

PL continuing to make some follow up points of rebuttal to the earlier points by GOV.

PL making a clear case of the capricious and arbitrary nature of the administration/Trump.

CK rebuttal – again – pointing out that there are people that are being harmed and could be helped, even without the embassies being open. This tears down the case that this is not about COVID.

CK points out that the Trump versus Hawaii case is being misquoted/misinterpreted – and by doing so, affecting law. Strong point.

CK also points out the unequal treatment of cases being issued in some countries and not in others.

Jesse Bless (AILA) talking about standing.

He is clarifying that congress constructed the laws carefully, and Trump is clumsily throwing this away. Pointing out inconsistencies in the treatment of people under the proclamation.

PL continues to point out how the GOV lawyers have been unable to defend the actions.

The hearing ended. I will post a video asap.

It would be hard to imagine that the Judge would not find standing, harm, and so on. I mean it would be hard to imagine that we don’t “win”. However, the question is – what remedy will there be. If the deadline is still in place, only a few cases can be helped. That would still be worth it, in my opinion, but obviously the bigger concern is the deadline and how people will be affected if we cannot get an extension.

I think it will be a few days before we get an answer – hopefully by the end of next week.