Some of you may have listened to the Gomez appeal today. It was quite interesting, but we don’t have a decision yet. However, I wanted to explain what I heard, and give some context for those that were wondering.
First – the Gomez case is the DV2020 case which is a certified class action covering ALL DV2020 cases not already issued. This case is the name of the lead case, but also represents the consolidated cases (Aker, Kennedy and so on).
You may remember that the Gomez case sought to fight for several immigrant and non immigrant visa types. It sought to block PP10014 in order to provide relief for a number of different visa types. However, Judge Mehta only gave a “win” in DV2020 cases, where he ordered visas to be processed in late September and then certified the class, AND reserved 9095 visas to allow a later decision. We are waiting on that later decision, and expect to get that in mid/late March.
In the ruling, Judge Mehta accepted there was harm being caused to the DV2020 cases, AND agreed that the Presidents’ ability to stop entry should NOT mean the government stops processing. Because of that decision, we got around 6000 visas processed in late September, with the hope to get the 9095 at a later date.
OK – so that is the context. You may have realized that the Gomez lawyers (the team from AILA, Innovation law lab et al) appealed the Judge’s ruling that the ban itself was within the powers of the President. It was that appeal that was held today with the DC appeal court (made up of three judges).
The recording itself is available here.
At stake is whether the ban in PP10014 was lawful or not. If the ban could be removed it would be good news for DV2020 cases holding a visa. But we would still need the Gomez case to continue to see if we can get the remaining 9095 visas issued (or argue for more). There could also be some positive aspects for DV2021 as it would remove the ban which is one factor stopping interviews right now.
The plaintiffs lawyer, Cleland Welton (our side) argued extremely well in my opinion. He was attacking the Presidents’ decision to bar entry based around the lack of logic and process in the decision that holding immigrants out would help the jobs market in a mid COVID crisis. He showed that the President should be required to “find” (by evidence, facts, logical reasoning) that keepoing immigrants out would avoid competition. In reality he correctly poin ted out that immigrants have been shown to drive the economy. So yes, a new immigrant needs to find a job, but they also need to look after their families, driving consumption of other goods and services. Those extra residents drive additional demand. He is absolutely correct. The judges asked some searching questions, but seemed to understand the arguments being put forward. They did keep referring to the earlier Hawaii decision which affirmed the President has wide reaching powers, that the government would argue cannot be questioned.
The Judges also pressed the government lawyer, Matthew Glover. He also did well, but the Judges were clearly concerned about aspects of the governments position. Essentially they pointed out that the administration could have done a better job in writing the PP, and thus avoided the challenges. But of course, as I mentioned on my recent videos the Trump administration has not shown skill in the crafting of their executive actions which is one reason why our lawyers are able to win. Glover was put through a ringer for about 20 minutes, it was almost painful to listen to, I’m sure he left the call pretty bruised.
The Judges reached no decision today, and are now considering the arguments put forward by both sides. It is by no means an easy win in this case. The power of the President to act over certain things is wide reaching, that is for sure, but still, things have to be done for legitimate reason and in the correct ways. So – I will not predict the outcome. However I will report back once the decision is made.