SAN FRANCISCO (CN) — A lawyer urged a federal judge Thursday not to postpone ruling on a request to block a Trump-era immigrant visa ban based on the government’s promise that President Joe Biden’s administration is actively reviewing the policy.
“We simply cannot keep waiting for the administration to actively review,” attorney Abadir Barre argued in a virtual court hearing Thursday. “We don’t know what that means. We’ve heard it too often.”
Barre represents 2,200 visa applicants challenging former President Donald Trump’s April 2020 proclamation that banned most immigrants from entering the U.S. based on the premise that they would take jobs away from Americans during economic recovery from the Covid-19 pandemic. The 60-day ban was extended through the end of 2020 and later continued through March 31 this year.
Barre’s clients seek a preliminary injunction to strike down State Department policies that suspended the processing and issuing of most visa applications, including family-based and diversity visa applications. They also request immediate adjudication of more than 2,000 named plaintiffs’ applications and a plan to remedy a backlog of 473,000 visa applications.
During a virtual hearing Thursday, a Justice Department lawyer asked U.S. District Judge Edward Chen to postpone ruling on those requests until the Biden administration completes its review of the visa ban. A decision is expected by the end of this month, she said.
“There is certainly going to be some decision made within the next 10 days,” Justice Department lawyer Kimberly Anne Robinson said. “This decision could moot out these actions.”
Judge Chen agreed to hold off issuing a ruling, but he asked both sides to present their arguments in case the Biden administration decides to continue or extend the policy.
The Justice Department says the president has sweeping power to suspend immigration and that courts should not second-guess the State Department’s prioritization of emergency and “mission critical” visa applications during a pandemic.
Robinson said an injunction could endanger the health of consular officers by forcing them to hold in-person interviews with visa applicants. The plaintiffs say they are not challenging any Covid-19 safety restrictions, and that many consular offices are located in places with lower rates of Covid-19 transmission.
The Justice Department also insists a court order will not eliminate all delays in processing visa applications because “a patchwork of delays” has contributed to the backlog.
Robinson cited written testimony from plaintiffs that revealed multiple causes behind the delays, including Covid-19 restrictions, payments issues and computer problems.
“Isn’t this likely to be a contributing cause,” Judge Chen asked of the visa ban.
Robinson replied that it must be the “likely cause,” not a contributing cause of harm under the standard for obtaining a preliminary injunction.
“The fact that there are other causes I don’t think means you should not root out an unlawful cause,” Chen responded.
Chen posed the example of a pandemic causing visa processing delays coupled with a policy that freezes visa processing based on applicants’ genders.
“You can see one group is being delayed for an impermissible reason,” Chen said. “If the harm is just one day out of a 365-day delay, that is cognizable harm to me.”
Robinson also contended that a court order will force the State Department to divert limited resources to expedite processing for thousands of visa applicants while kicking higher-priority applicants to the back of the line.
Barre replied that people affected by the proclamation are at the front of the line. Some will have to wait years to obtain a visa and be reunited with their families in the U.S. under the current system, he said.
He added that plaintiffs are not “asking to jam everyone through. We’re asking to take the dam down.”
Chen said in a perfect world, every visa applicant would be placed back in the order they were before the visa ban was issued.
“I understand that’s not easy to do,” Chen said.
After about 90 minutes of debate, Chen took the arguments under submission and scheduled a status conference for March 4 to get an update on the Biden administration’s review of the visa ban.
Four courts have previously blocked the State Department’s ban on processing visa applications, but those injunctions only applied to individual plaintiffs who filed suit.
Judge Chen issued one of those four orders in December, directing the State Department to process 181 family-based visa applications, including for a nine-year-old child stuck in war-torn Yemen and separated from his parents in the U.S.
Another request for a nationwide injunction is also pending before U.S. District Judge Richard Seeborg in San Francisco.
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