Curtis Morrision posted a summary of how he sees the status after the first hearing. I think it is a fair assessment of where we stand so I will post it here then discuss a few additional points.
RE: DV 2020 and PP 10052 Litigation
(Mohammed, Gomez, Aker, and Fonjong)
I want to answer some frequently asked questions from the weekend.
Question 1) Is it possible we will have a TRO this coming week (either on PP 10052 or one that solves all the problems for the 2020 DV winners)?
A) NO. I don’t know who is saying this, but please stop. Judge Mehta set a briefing scheduled that will allow the government until August 18 to oppose all 4 PI/TRO motions, and a deadline of August 24 for plaintiffs (in all 4 cases) to reply to the opposition. Then there will be a hearing on August 27 at 1 PM EST, and while the final outcome could come that day, the issues are complicated, so it’s best to prepare that it will come after that day – after August 27.
Question 2) If Judge Mehta issues an order cancelling PP 10014/PP 10052, will all 2020 DV winners benefit?
A) Frankly, no. Very few 2020 DV winners will benefit from an order that narrow for one or more of these reasons:
1) Many DV winners who would have otherwise got visas have their applications suspended at KCC. Just cancelling this order doesn’t mean that processing will be completed.
2) The majority, and I mean all but 3-4, embassies are not fully open for routine visa processing and would not be under any obligation to consider 2020 DVs emergencies without the judge ordering that.
3) Many DVs must travel to 3rd countries for their visas interviews, and currently there are restrictions from those 3rd countries prohibiting that travel. For example, the 3 embassies that primarily service Iranian immigrant applicants are located in adjacent countries that are not allowing travel by Iranian nationals.
4) For DV winners in the Europe (specifically the Schengen Area and UK), it’s State Dept’s position they cannot issue visas to 2020 DVs located in these countries due to the 14-day ban from Mar. 11, 2020. There is no expiration on this ban.
Question 3) If very few 2020 DV winners will benefit from an order only cancelling PP 10014/PP 10052, is there any hope?
A) Yes, the Dr Mohammed v Trump and Fonjong v Trump cases challenge more than just those proclamations, but the suspension of the 2020 DV program, and we have requested front and center that our plaintiffs’ visas are reserved past the 9/30 deadline. From our point of view, this is the best outcome.
Perhaps Judge Mehta will see that is the most reasonable relief for the entire class of 2020 DV plaintiffs. But there are some obstacles to that. First, class certification has not yet been approved to the 6 Gomez DV plaintiffs. Second, the attorneys for the 6 Gomez DV plaintiffs are also looking out for plaintiffs in family-based immigrant and non-immigrant visa categories, and so they made reserving the visas an alternative relief and not the primary relief requested in their motion for preliminary injunction. However, one advantage of consolidation is the same judge will hear everyone’s arguments, and so hopefully, he make the best decisions for all regardless of these obstacles.
Question 4) What’s next in the litigation?
A) If you listened closely to the last status conference, you know that the government has a deadline of Tuesday Aug. 11 to file an opposition to our motion in Mohammed for expedited production of the administrative record (for the DV suspension) and for deposition(s) of government employees.
Judge Mehta has said he will make a decision on that motion at the status conference next Wednesday, August 12, 2020,
Whether you are a plaintiff or not, be hopeful that Judge Mehta grants our motion. Because if we have access to State Department’s internal documents (such as memos to KCC and cables to embassies) or the inside story from KCC or Visa Office employees, we will certainly have better evidence to make our case, and it will be more difficult for the government to lie to the judge.There is a saying – sunlight is the best disinfectant – and that’s why we really need this administrative record.
Finally, thank you everyone for your kindness and patience. Have a great week!?Curtis Morrison
As I have mentioned before, this lawsuit has taken longer than we needed it to proceed. The judge obviously cannot treat either side unfairly, so in giving time for each side to prepare, he has put the possibility of a fast TRO out of reach. Without a fast TRO, most DV2020 people lose the benefit since there will be little of no time left. So – let’s just be clear about the 5 groups:
1. People that already had their visas but were unable to travel and the visas expired.
2. People that had interviews, were on AP, but that AP has been cleared now and they would normally have been issued by now except for the ban.
3. People that had interviews scheduled but the interviews were cancelled because of the pandemic closures.
4. People that received the ready for scheduling email but were not scheduled yet.
5. All others (i.e. people who had submitted DS260s and documents but had not got the ready for scheduling email).
Now – if we cannot get the ban blocked until the end of August group 5 and probably group 4 cannot be saved. As Curtis explains about he is still hopeful that visas for plaintiffs in his cases could be “set aside” for issuance after the September 30th deadline, and perhaps there would be a similar outcome for a wider group. But I don’t want to give anyone false hopes, so to be clear that outcome is extremely hard to pull off.
If the ban is blocked, Groups 1 to 2 could benefit. They don’t need interviews, but they do need the embassies and KCC to work. For those not on the mandamus lawsuits, people will have to “hope” the embassies take action, which will be something that individuals can have some influence upon. It will be up to those individuals to contact the embassies and get the embassies to take action. Curtis makes a good point about the Schengen area though – and we do have cases where the embassy are pointing at the March 11 EO (Schengen and UK ban) as a reason their cannot re-issue visas. That is clearly wrong (as someone could explain they plan to be in a non Schengen country for two weeks prior to entry to the USA), but again, it seems those embassies have support from State for the position they are taking. It is of course possible that the Schengen area ban could be lifted at any time – frankly EU has the pandemic better controlled than it is in the US.
Group 3 need embassies to be open and willing to arrange interviews. Again, like groups 1 and 2 that may take some encouragement (either through people lobbying for themselves, or the mandamus case for those on it). That will be effected by how the embassy prioritizes their work and how badly affected they are by the pandemic.
So – we are moving toward a situation where some, but not many people from DV2020 could be helped. As Curtis says, his “front and center” request is for the suspension of the DV2020 program – to continue processing past September 30th. The “slowness” of the legal action itself could be seen as almost “supporting” that outcome – but as we know, the law is clearly written, so the gamble is a big one.
DV2021 would benefit from a block on the ban in August as it would allow a faster start to interviews, and therefore more time overall for processing.
Now I know I am going to get a large number of questions. I will probably add Q & A to this article as they come to avoid having to re-answer over and over again.
Obviously I don’t know what will happen. No one does. Each person affected by this is going through a difficult time and wants answers, but simple answers are not possible. All we can do is wait and see what happens.