Filed Date: Aug. 3, 2017
Case Ongoing
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A group of diversity visa lottery winners and their family members filed suit in the US District Court for the District of Columbia on August 3, 2017. The defendants included the US Secretary of State and consular officials. The plaintiffs were represented by the Arab-American Anti-Discrimination Committee, the ACLU, the National Immigration Law Center, and private counsel. The plaintiffs challenged the State Department’s practice of denying immigrant visas to diversity lottery winners from countries affected by President Trump's March 6 Executive Order (EO-2). EO-2 was the second iteration of four 2017 executive orders issued by President Trump that placed restrictions on travelers from numerous majority Muslim countries into the U.S. These orders spurred numerous lawsuits, many of which can be found in this collection. The case was assigned to Judge Tanya S. Chutkan.
The Diversity Visa Program awards visas to nationals from countries that have historically sent low numbers of immigrants to the United States. On March 6, 2017, President Trump issued an executive order that barred entry to nationals from six majority-Muslim countries: Iran, Syria, Libya, Sudan, Somalia, and Yemen. Litigation ensued immediately, and the lower courts initially enjoined the government from implementing the order (see IRAP v. Trump and Hawaii v. Trump). But on June 26, 2017, in IRAP, the Supreme Court stayed the nationwide injunctions and allowed the order to become effective, except as it applied to immigrants who could establish a "bona fide relationship with a person or entity in the United States." 137 S.Ct. 2080.
The plaintiffs were nationals from countries affected by EO-2 who had been selected as diversity visa lottery winners for the 2017 fiscal year (FY2017) but could not establish a bona fide relationship with a person or entity in the United States. By statute, the State Department was required to issue visas to the 2017 winners by September 30; winners whose visas were not issued by that deadline lost their slots in the program. In their complaint, the plaintiffs alleged that "nevertheless, the State Department has adopted a policy directing consular officials to deny diversity visas to nationals from the countries barred from entry by the Executive Order." The complaint presented two main arguments. First, the plaintiffs alleged that the State Department’s practice violated the Administrative Procedure Act (APA) and "statutes and regulations requiring the issuance of immigrant visas to diversity visa lottery winners who are statutorily eligible." Second, the practice allegedly conflated the travel ban’s prohibition on entry to the US for nationals from the targeted countries (originally set to expire in September 2017) with a total ban on the issuance of visas to individuals from these countries including visas issued pursuant to the diversity program. The plaintiffs sought declaratory and injunctive relief as well as a writ of mandamus requiring consular officials to issue plaintiffs' immigrant visas. Alternatively, the plaintiffs requested that the court order the State Department to reserve any unused FY2017 visa numbers for processing following any decision by the Supreme Court in IRAP. The same day that they filed their original complaint, the plaintiffs requested class certification.
On August 18, 2017, the government responded to the plaintiffs' motion for a preliminary injunction (filed the same day as the original complaint). The State Department argued that plaintiffs' claims were precluded by the Supreme Court's stay in IRAP, which allowed the government to implement the EO.
The plaintiffs filed both an amended petition for a writ of mandamus and an amended complaint on September 22, 2017. The amended complaint added eight plaintiffs.
Judge Chutkan issued an order granting in part and denying in part plaintiffs' motion for preliminary injunction and writ of mandamus on September 29, 2017. Judge Chutkan agreed with the government that the Supreme Court's June 26 decision in IRAP precluded the district court from issuing a preliminary injunction. However, the court did grant the plaintiffs' alternative request for relief. Consequently, the court ordered the State Department to report the number of unused visas for FY2017 by October 15, 2017, and to hold those visas for the plaintiffs in the event that the Supreme Court struck down EO-2. 302 F. Supp. 3d 1.
The Supreme Court issued another order in IRAP vacating the judgment of the district court in that case because the EO at issue expired on September 24, 2017, and expressed no view on the merits. 38 S.Ct. 353 Subsequently, in this case, the government filed a motion to dismiss on October 20, 2017, arguing that the Supreme Court's decision rendered the case moot. The plaintiffs filed their reply on November 13, 2017, arguing that the case was not moot because the district court could still provide them relief.
The following month, the plaintiffs submitted a series of status updates to the court. Following the court's request, the plaintiffs submitted a status update on December 4 reporting the number of diversity visas issued in 2017. The defendants responded on December 5 contesting that number. The plaintiffs claimed that the State Department issued a total of 49,067 out of the available 50,000 diversity visas, while the government claimed that 49,976 were actually issued. Additionally, on January 5, 2018, the plaintiffs filed another status update arguing that the Ninth Circuit's decision in Hawaii supported the plaintiffs' claim that the case was not moot.
Judge Chutkan dismissed this case with prejudice on March 27, 2018. He determined that the plaintiffs' claims were moot because the section of EO-2 at issue had expired. The plaintiffs appealed to the D.C. Circuit Court of Appeals (docket #18-5156) on May 24, 2018.
The D.C. Circuit reversed and remanded the case back to the district court on August 13, 2019. The Court reasoned that the case was not moot because whether the district court retained the authority to award any relief was a merits question. 933 F.3d 774.
The defendants filed another motion to dismiss in the district court on April 13, 2020. The court did not address this motion until January 2021.
Following the inauguration of President Biden on January 20, 2021, the government filed an unopposed motion to hold the case in abeyance and a notice informing the district court of President Biden’s revocation of the travel ban executive orders on January 27, 2021. The government also informed the district court of President Biden’s proclamation (also issued on inauguration day) that the State Department provide him with a plan to expedite the reconsideration process for visa applications denied as a result of the executive orders at issue in this litigation. As a result of this motion, the district court made three orders on January 28, 2021. First, the district court granted the motion to hold the case in abeyance to allow the parties an opportunity to pursue an alternative resolution. Second, the parties were to file joint status reports, with the first to be submitted by April 27, 2021, and subsequent reports every 30 days after. Third, the district court denied without prejudice the government’s April 13, 2020, motion to dismiss.
On August 5, 2021, the parties filed a joint motion to clarify whether “the Government can process Plaintiffs’ visa applications and issue diversity visas to them, notwithstanding that fiscal year 2017 is over.” The question centered on the meaning of the court’s September 29, 2017, order that did not preliminarily enjoin EO-2 but did order the government to report and reserve any unused visas. The plaintiffs’ understanding was that the order (1) required visa processing if the Supreme Court invalidated the Executive Order and (2) left open the possibility that the court would order visa processing at a later time if the court otherwise found that the challenged State Department policy was illegal. The defendants interpreted the order to mean that the court would only order visa processing if the Supreme Court invalidated the EO (but the case challenging the Order was then mooted). Additionally, the defendants believed that, since fiscal year 2017 had ended, they did not possess statutory authority to process the visas. Without statutory authority or a court order, the government would not have the ability to process the visas.
On October 27, 2021, the court granted the motion to clarify and provided the requested clarification in the same filing. The court agreed with the plaintiffs, stating that the September 2017 order addressed one specific situation—that in which the Supreme Court invalidated Trump’s EO—and left open the possibility of issuing a later judgment ordering visa processing. Further, discussing the case on the merits, the court endorsed the plaintiffs’ argument that EO 13780 did not alter the INA obligation to process and adjudicate diversity visas, describing it as “well founded.” The court noted that the executive order “suspended the right of certain persons to enter the United States'' but that it did not speak to the processing or adjudication of visa applications. Additionally, the court described in detail two recent and related cases, Rai v. Biden and Gomez v. Trump. It stated that, “In the wake of [these] decisions addressing similar legal issues, Defendants are well advised to pursue a resolution to this case that does not entail further briefing.” The court then directed the parties to submit a joint status report in thirty days and every thirty days thereafter.
On November 26, 2021, in their first status report since the October 27 order, the parties informed the court that they were waiting to hold talks until the government decided whether or not it would appeal the Rai and Gomez judgments. On January 27, 2022, the plaintiffs learned that the government decided to appeal the above judgments, and they filed a motion to lift the abeyance and establish an expedited briefing schedule on February 9. The government opposed the motion, and the parties each filed briefings in support of their respective positions. Counsel for plaintiffs argued that it would be unfair to the plaintiffs to keep the case in abeyance, rather than granting long-sought relief while the government pursues appeals in the above-mentioned cases. They also argued that, given the court’s assertions that it could still order visa processing and its apparent agreement with plaintiffs on the merits, the court would be in a position to quickly grant a motion for summary judgment. The defendants argued, meanwhile, that judicial economy favored keeping the case in abeyance until the appellate court ruled on the appeals.
The court has yet to rule on the February 9 motion. The case is ongoing.
Summary Authors
Jamie Kessler (4/5/2018)
Virginia Weeks (5/25/2018)
Sam Kulhanek (4/18/2020)
Esteban Woo Kee (8/7/2021)
Evan Gamza (5/21/2022)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/6133800/parties/pk-v-tillerson/
Chutkan, Tanya Sue (District of Columbia)
Griffith, Thomas Beall (District of Columbia)
Tatel, David S. (District of Columbia)
Williams, Stephen Fain (District of Columbia)
Amdur, Spencer (New York)
Ayoub, Abed A. (District of Columbia)
Bokat-Lindell, Noah (District of Columbia)
Cox, Justin Bryan (Georgia)
Eidelson, Ben (District of Columbia)
Jadwat, Omar C. (New York)
Chutkan, Tanya Sue (District of Columbia)
Griffith, Thomas Beall (District of Columbia)
Tatel, David S. (District of Columbia)
Williams, Stephen Fain (District of Columbia)
Amdur, Spencer (New York)
Ayoub, Abed A. (District of Columbia)
Bokat-Lindell, Noah (District of Columbia)
Cox, Justin Bryan (Georgia)
Eidelson, Ben (District of Columbia)
Jadwat, Omar C. (New York)
Khalaf, Samer E. (District of Columbia)
Michelman, Scott (District of Columbia)
Minzner, Max J (District of Columbia)
Price, Matthew E. (District of Columbia)
Rondon, Yolanda C. (District of Columbia)
Spitzer, Arthur (District of Columbia)
Sung, Esther (California)
Tumlin, Karen C. (California)
Wofsy, Cody H. (California)
Wolson, Max (District of Columbia)
Dorsey, Catherine (District of Columbia)
Peachey, William Charles (District of Columbia)
Platt, Steven (District of Columbia)
Press, Joshua S. (District of Columbia)
Readler, Chad Andrew (District of Columbia)
Reuveni, Erez (District of Columbia)
Westwater, Gisela Ann (District of Columbia)
See docket on RECAP: https://www.courtlistener.com/docket/6133800/pk-v-tillerson/
Last updated May 28, 2022, 3:06 a.m.
State / Territory: District of Columbia
Case Type(s):
Special Collection(s):
Key Dates
Filing Date: Aug. 3, 2017
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
A putative class of diversity lottery visa winners and their family members from countries covered by President Trump's 2017 travel ban executive orders.
Plaintiff Type(s):
Attorney Organizations:
ACLU Immigrants' Rights Project
National Immigration Law Center
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Pending
Defendants
U.S. Department of State (Washington), Federal
Defendant Type(s):
Case Details
Causes of Action:
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Ex parte Young (federal or state officials)
Special Case Type(s):
Availably Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Mixed
Nature of Relief:
Preliminary injunction / Temp. restraining order
Source of Relief:
Order Duration: 2017 - 2017
Content of Injunction:
Issues
General:
Discrimination-basis:
National origin discrimination
Immigration/Border:
National Origin/Ethnicity: