OK – so we are past the point when we should have seen 2NLs for January interviews. We can assume, then, that we will not have January interviews. In the video below I explain when we might get interviews, what legal options are being worked to improve that, and I discuss the implications if we lose several more months.
Since the video above was produced the Judge has issued a ruling to deny the TRO, and instead suggested the lawyers switch to a preliminary injunction. So – I thought I should explain what that means, in a way we could all understand.
The ultimate goal of our lawsuit would be an injunction. That is a court order to permanently cease a behavior, such as the ban itself.
However, an injunction is only issued as a conclusion of a court case, after all the arguments have played out. That can take time – certainly weeks, often months or even years. In the meantime plaintiffs can try and obtain two types of orders from the court a TRO or a preliminary injunction.
A TRO (Temporary Restraining Order) is an immediate order stopping someone doing something. The idea being that the actions must be stopped immediately, it cannot wait for the arguments to be made. The standard that must be met for a TRO is quite high, and the the plaintiffs must show they are being caused irreparable harm. Irreparable meaning “cannot be repaired”.
If a case cannot get a TRO, then that case may be able to get a Preliminary Injunction. This will take a little longer than the TRO because the court case must have “started” where both sides have had the chance to gather their evidence, formally respond and so on.
In our case the TRO was to stop the ban, or the behavior that causes harm to the plaintiffs (which include DV2021 cases).
Judge Seeborg ruled that the plaintiffs had not showed any “immediate” harm (really referring to irreparable harm), because there are delays as we can all see, but it is harder to prove that the harm cannot be repaired. As I described in the video above, it is clear to me & you that we would run out of processing time, but we cannot be certain of that. It is speculation on my part, and perhaps the government could say they will increase the capacity of embassies to process these cases. So – given that, the Judge probably made a fair decision. He did note however that the lawyers had showed potential harm, and therefore suggested converting the request to a PI – which has a different standard of proof compared to the TRO, but is slower.
So a PI could still provide the same relief of stopping the behavior and could lead to a permanent injunction, but it just means the speed at which we get the decision will be slower. Maybe in December, possibly January.
I hope that explanation helps understand the legal moves and what it means.