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:
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).
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.
- Mandate (force) the government to adjudicate the visas before the Sept 30th deadline.
- 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.
August 27, 2020 at 17:15
Best of luck for all of us #noban
August 27, 2020 at 17:19
May the Almighty Allaah grant us successful results and help us with the TRO, amen ya Allaahu.
August 27, 2020 at 17:17
All the best.. keenly followers senior
August 27, 2020 at 17:18
All the best.. keenly followering senior**
August 27, 2020 at 17:23
All the best
August 27, 2020 at 17:36
Thanks brit for the update..we hope for the best
August 27, 2020 at 17:50
All the best sir
August 27, 2020 at 17:53
Dear Brit, What ever happens, I’ll never forget your kindness. May the almighty Allah be with us.
August 27, 2020 at 18:14
Brit, thanks so much for your wonderful and relentless hard work. The ongoing lawsuit is very entertaining. We’re very optimistic to see a TRO on the ban because it’s very nonsense and biased towards the USA immigration system.
May Allaah grant us all success with a visa and entering the USA in peace amen ya Allaahu.
August 27, 2020 at 19:56
Brit thanks for fighting Justice to all of us we are hoping to win this verdict we will remember you in the history of dv an what about those who had completed AP admitrative process will they be issued visa
August 27, 2020 at 22:07
We have to wait and see.
August 27, 2020 at 18:10
From Argentina we are praying to God for him to grant justice in this matter and that his will be done
August 27, 2020 at 18:35
We are all blessed by God and we are going to be on the positive side.
August 27, 2020 at 19:30
“ Wow – Trump’s A team of lawyers must be busy paying off strippers.” ? You are the best, Brit! Thanks SO MUCH for all your work. Much much appreciated from a #dv2021 winner.
August 27, 2020 at 20:38
Lol! I laughed too hard too when I read that!
August 27, 2020 at 22:05
🙂
August 27, 2020 at 22:30
HAHA Yes I about fell off my chair when I read that – Don’t ever change Simon, love that sense of humor 🙂
August 27, 2020 at 22:35
hehehe
August 27, 2020 at 20:27
You’re such a unique soul Brit. Thanks to your wife also for all her support in this. We are forever grateful!!
August 27, 2020 at 20:40
Thank you Sir
Be blessed
August 27, 2020 at 20:41
Did JM mention how long it will take for a decision. Or it is unknown?
August 27, 2020 at 20:42
I am wondering the same as well
August 27, 2020 at 21:01
Yeah, really sad because we’re running out of time.
August 27, 2020 at 22:07
He did not give a precise day.
August 27, 2020 at 20:44
So when will be the final decision about extension??
August 27, 2020 at 20:46
Thank you so much Mr Brit Simon for the notes. Best wishes for dv cases!
August 27, 2020 at 20:46
When will be the final decision about extending??
August 27, 2020 at 22:08
See above.
August 27, 2020 at 20:47
“If the deadline is still in place, only a few cases can be helped. That would still be worth it, in my opinion”
This sounds like GOV lawyers. worth it ? How? ALL should benefit from a law not only some. this sounds like GIVING UP. ONLY EXTENSION od the deadline or setting visas aside IS A WIN!.
Only Charles Kuck made real declarations.
August 27, 2020 at 22:08
That’s a pretty insulting and childish response.
August 28, 2020 at 00:30
Brit thanks for your support and what about people on AP they complicated the process will they be issued visa with this little time
August 28, 2020 at 00:40
We have to wait and see.
August 27, 2020 at 20:50
Thank you Brit, we are blessed to have you, thank you.
August 27, 2020 at 20:52
We loose ?
August 27, 2020 at 21:05
Let’s all hope for the better through the Will and mercy of the creator of creations, we’ll surely succeed and got our visas in our passports.
August 27, 2020 at 20:58
I mean WE CAN DREAM AGAIN – even if it is for a sec. Simply grateful of how far things have come, no matter the outcome, it brings so much joy to know that we were never let down. Thank you, Brit!
August 27, 2020 at 21:02
Thank you very much for this wonderful updates Mr. BS. I look forward to watching the video and all fingers cross as we wait for the judge’s redress of the harm. We hope he gives a strong decision.
August 27, 2020 at 22:09
Video linked above.
August 27, 2020 at 21:02
When will be the final decision about today hearing sir
August 27, 2020 at 21:20
Brit you are the best
August 27, 2020 at 21:21
Thank you sooo much for writing this down for us. I’ll be looking out for the video of you and any more updates I receive by email.
This sounds good ish ??
August 27, 2020 at 22:09
Video posted.
August 27, 2020 at 21:28
I have never imagined I could be in such cold sweat following all your report of your. Thanks Brit, you are amazing person! Fingers crossed for everyone in this case!
August 27, 2020 at 21:28
3h and 30min of my time well spent tonight. It was very satisfying to hear how weak the government’s response was and to witness how they were scrambling to avoid answering some of judge’s questions. I’m looking forward to see what the outcome of the hearing is going to be but I think our side made excellent points and I’m very grateful and proud to have such amazing lawyers representing us!
August 27, 2020 at 21:28
Hello Brit!
Did they say something about the extension of the 30th of September?
Best Regards
August 27, 2020 at 22:10
It was discussed, but not decided.
August 27, 2020 at 21:43
God is wonderful
Even if is left with one day for DV2020 to end, God will still make it possible for all of us.
Big Thanks to God and all those who fought on our behalf.
Simon, words can’t express our gratitude. We love you so much and always wish you well.
See you in US God willing next month
August 28, 2020 at 09:36
Hi Miracle,
I like your positively. I do believe in miracles. We shall all meet in US. I trust our period will be extended after September 30th. Our mighty God is above all.
August 27, 2020 at 21:47
Thank you for all you do. Very informative. Let’s hope for the best.
August 27, 2020 at 22:01
Brit, after the hearing do you think we have chances of extending deadline ?
August 27, 2020 at 22:14
I still don’t know.
August 27, 2020 at 22:05
Hi Brit, appreciate your all effort by updating your blogs, preparing videos for us.. People like you are very rare.. I like to know what will happen to Dv 2021? Did lawyers says that we can start interviews at least by October /November 2020?
August 27, 2020 at 22:14
Nothing is decided yet. We have to wait for the outcome. October is already lost.
August 27, 2020 at 22:06
Hello BRIT !! Thanks for your work.
What do you think about the extension of 30 th of September Brit? Do we have any chances? I have recieved the confirmation of the documents and i am with CN 26 K. What do you think do we have a chance?
Best Regards!
August 27, 2020 at 22:13
I don’t know.
August 27, 2020 at 22:10
Hi Brit
Thank you very much for your help.
How do you think DV2021 can benefit if ALIA win the case?! Do you think KCC will start schedule winners for interview by November?!
August 27, 2020 at 22:13
That is one of the outcomes we would hope for…
August 27, 2020 at 22:23
Yes Simon, there are embassies in small countries with NO activity at all and where small number of DV2020 is left unprocessed.
In Skopje, North Macedonia (Europe) about 350 winners were selected for DV2020, and the embassy has no activity, the selectees left which are very small number of the total 350 could be processed for some weeks. So why it wasnt? its arbitrary. we should all be processed.
August 27, 2020 at 22:38
Well that is one of the points the lawyers made.
August 27, 2020 at 22:28
If the 1st option would be the outcome of the lawsuit (Mandate (force) the government to adjudicate the visas before the Sept 30th deadline.) it means that the relatively low case numbers which are stuck at KCC with processed documentation might be scheduled in September?
August 27, 2020 at 22:37
In reality, as my video explains, and as I have previously explained, there is not enough time to deal with all the cases that have not got the ready for scheduling notice, and probably not to deal with the majority of the cases that ARE ready for scheduling. So – if all we get is option 1, that will help some, but not all people.
August 27, 2020 at 23:09
Obviously I understand that not every case might be rescued. I just wanted to know if the KCC was able to schedule any appointment even though only one month left (when normally they need at least 6 weeks to schedule an appointment). The point that I’m trying to make is that I’m concerned they will reschedule appointments that were scheduled in February and early March and issue the visas of people who are on AP and the rest that is stuck at KCC will remain there forever. If you say that “there’s not enough time to deal with *ALL* the cases…” it means that they’re able to schedule at least some of them and that’s what I wanted to know. I hope that I understood it clearly ?
August 28, 2020 at 00:39
Obviously we won’t know until we see what happens.
August 27, 2020 at 22:59
Hello BritSimon, DV2020 winner here
Even before the ban i wasn’t sure when to send my documents (high case number 40k+) & since the first time that the ban took off i wanted to send my documents to KCC but didn’t do it till now
A) Is my case lost if i send the documents right now before the final verdict
B) I should wait the final verdict than send the documents
C) Either one is a lost cause
Thank you for your time
August 28, 2020 at 00:38
Don’t send it now – it would be pointless. IF some miracle happens and there is a large extension, then maybe file – but otherwise – forget it.
August 27, 2020 at 23:21
I thank the Almighty God for the day of today and my sincere gratitude to you and the team of lawyers for the tremendous job that you people have done for us, I will forever be grateful ??.
Never stop doing what is right because of the present of mosquitos on your ears.
God bless you and your family?
God bless the attorneys ?
August 27, 2020 at 23:53
Hi Brit, No words could express our feelings towards you, really we appreciate.
Dose this lawsuit consider the Ban for the newly added countries like Tanzania and Sudan, or only general for the whole dv program?
August 28, 2020 at 00:39
No – those other bans are unfortunately still in force.
August 28, 2020 at 00:16
Could September 30 will extend for 2020 winners
August 28, 2020 at 00:41
Please read above.
August 28, 2020 at 01:29
So assuming the judge will consider it as a class action and is going to provide reliefs for DV winners and one of these reliefs is to ask the DoS to consider DV as a critical or emergency visa. Will 2020 only enjoy this decision? or as a class action all DVs that have been banned by the proclamation whatever the year (2021 I mean, actually they have been affected-at least a delay for a month) will enjoy the judge decision?
In other words, is it possible for the judge to restrict his “class action” decision for only 2020 winners?
August 28, 2020 at 05:22
I don’t see why that would be – but Let’s wait and see.
August 28, 2020 at 01:34
Hi Brit
Thanks a lot for your tremendous commitment on behalf of us. I’m thinking positively. I have 2 questions.
If we win:
1) Cases which are approved (AP) will also need new medicals to issue their VISAs, right?
2) Usually it takes 1-2 weeks to issue a medical and that’s also after a pre appointment. Since we will have very little time, are you recommending to start that process right now or wait for couple of days?
August 28, 2020 at 05:23
1. Yes
2. Your choice.
August 28, 2020 at 02:20
Thank you so much Brit! For the update and all the info about the case
Waiting and hoping
for good news to all!
#Dv2020
August 28, 2020 at 03:20
Thanks very much brit for the apdates
August 28, 2020 at 05:17
Hi Dear Brit, thank you for your kind work. You are our everything.
If it’s successful, do you think I have a chance to have an interview? I was scheduled in April. Will I manage till Sept 30?
August 28, 2020 at 05:35
Good morning Sir , thank you very much for the help and effort you have made for us ,
1- what kind of decision may be taken by the judge will affect positively on dv2021?
2- if the extension occurs beyond 30sep for dv2020 , will it be a TRO ?
3- suppose the judge was convinced by what the lawyers have said , can he make a decision without issuing TRO , in other way can the remedy occur without a TRO?
4- if TRO issued by judge , will it be for all dv( 2020, 2021)?
5- don’t you see that judge could be in between and be positively for both side , not to break the order of president Trump and not make plaintiffs lose their chance to get visas how ,
By ordering government as you said to issue visas for the people who deserve and not entering USA during the ban , in this way the order of president will be respected and the right of plaintiffs also will be saved?
Thank you sir ,
August 28, 2020 at 17:40
1. The plaintiffs have asked for various remedies – but let’s wait and see what happens.
2. The T in TRO is tempoarary. So, again, let’s see what we get and whether that is a short term solution to allow further discussion, or the final decision.
3. I think I have answered that.
4. Answered.
5. Again, finally – wait for the outcome.
August 28, 2020 at 05:47
Hi Simon,
if the lawsuit win that means we had to be re-issued a new visa in Schengen? I ask this because lawsuit challenge the immigration ban and not the travel ban.
August 28, 2020 at 06:16
Hello Simon,
Whatever will happen, I really want to thank you for your precious work!
I was wondering the same: what is the expectation for those who were issued a visa but it expired because of the shengen area restrictions?
August 28, 2020 at 17:41
It depends on what the Judge decides. The issue of non issuance versus blocking entry is discussed above.
August 28, 2020 at 05:50
Hi brit. Was this lawsuit only arguing for DV winners? What about family categories? My case is F4. Interview already done just visa has to be issued. Thanks
August 28, 2020 at 17:43
No – the AILA case challenged all aspects of the ban.
August 28, 2020 at 06:08
What about expired visas that need to be reissued?
Some embassies have announced about Re-issuance, while others haven’t.
August 28, 2020 at 17:44
Yes I understand that is being raised as a problem – so wait for the outcome.
August 28, 2020 at 07:10
I hope there will be a posetive thing,see
1. Why God give us Brit Simon
2.Why God give us our Lawyers
Tanks to God and all who thinks posetive for us.
August 28, 2020 at 07:56
My heartly gratitude to you Mr Simon ! May god bless you and your family. Many thanks indeed for all what you are doing and laywers team also! This world should have many people like you !
I am in AP (221g) since february 2020 .
Whatever happens i will never forget your effort your kindness. God bless you sir ! My profoundly gratitude to you SIR SIMON!
August 28, 2020 at 17:52
🙂