WASHINGTON (CN) — Immigration attorneys argued for nearly four hours in Washington on Thursday in a case that could decide the fate of thousands of immigrants shut out of the United States during the coronavirus pandemic.
The White House claimed the move was necessary due to the high unemployment rate brought on by Covid-19, but provided no data to support that lower numbers of immigrants would reverse the economic trend.
U.S. District Judge Amit Mehta heard arguments Thursday on a motion for a preliminary injunction filed last month that argued Trump must justify that entry into the country by certain foreign nationals would be “detrimental to the interests of the United States.”
The Obama appointee asked the government for data to support the finding that nonimmigrant visa holders would displace U.S. workers. But the Justice Department, while assuring the judge there was evidence on the record, could not provide any specific information.
Furthermore, the government argued, that type of finding is not necessary under the Supreme Court ruling in Hawaii v. Trump, which upheld the president’s travel ban on immigrants from predominantly Muslim countries.
But a lineup of immigration attorneys made the case that the two pandemic-era proclamations do not supersede the thousands of pages of regulatory requirements on visas outlined in the Immigration and Nationality Act.
Immigration attorney Charles Kuck argued the justices ultimately ruled on a twice-revised version of Trump’s so-called travel ban, while the first executive order lacked a valid basis for excluding immigrants.
“‘The President lawfully exercised that discretion based on his findings — following a worldwide, multi-agency review,’” Kuck said, reading from the opinion in Hawaii v. Trump.
“There are not even any findings here,” he continued, referring to the recent executive orders. “There’s somebody’s opinion, with no factual basis in the record. That cannot be the basis to override the entire INA.”
The American Immigration Lawyers Association, along with several other immigration advocacy groups, first challenged Trump’s blanket order in May on behalf of children granted family-based sponsor visas who were soon to “age-out” and lose the ability to receive their visas.
An amended complaint filed last month brought on a host of families, employers and organizations as plaintiffs, among them Diversity Visa applicants and employers sponsoring H-1B nonimmigrant work visas.
Six winners of the 2020 Diversity Visa Lottery risk losing their opportunity to come to the U.S. absent a ruling granting injunctive relief.
“They have a limited window to come in under those visas,” immigration attorney Jesse Bless warned, explaining the State Department is required to hand over the visas by the end of the fiscal year on Sep. 30 or the lottery winners will no longer be eligible to immigrate.
Other plaintiffs include Carmen Ligia Pimentel, who was pregnant and sponsored her husband to immigrate from the Dominican Republic, and Nazif Alam, a U.S. permanent resident and essential worker in New York whose wife had planned to pursue a master’s degree at Cornell University but had her final visa interview canceled.
Seeking clarification on the sought-after relief, Mehta questioned his ability to override the presidential proclamations.
Attorney Geoffrey Forney reassured the judge that the plaintiffs sought an order for the State Department to issue the already approved visas and to fully adjudicate those pending.
The Justice Department, however, claimed the challenge was aimed directly at the proclamations and failed under Trump v. Hawaii.
A trio of government attorneys arguing Trump was well within the power of his office also claimed operations at consulates around the world are at a virtual standstill.
“You’re not suggesting that all operation was shut down at every consulate that is represented by the various plaintiffs in this case?” Mehta asked.
Justice Department attorney Thomas York replied that the State Department had informed him that worldwide only one consulate had returned to full-fledged visa processing.
Only a small exception of visa services deemed “mission critical” are currently underway, he added.
The challenge to the proclamations also lacked standing, the government argued, because the process of issuing visas does not amount to a final agency action that can be challenged under the Administrative Procedures Act.
But the judge pushed back on the idea that Trump was well within the scope of presidential authority.
“‘Suspend the entry of’ — it doesn’t say anything about rendering anybody ineligible to receive [a visa],” Mehta said, after reading from the immigration statute at issue in the case.
The judge also raised the hypothetical of a proclamation to keep immigrants out of the country during a spike in crime rates based on the justification that immigrants commit more crimes than nonimmigrants.
“Which as I understand it is just not true,” Mehta said, adding: “Is there anything a federal judge can say or do in court about that…or is that enough — the president says we’ve got to keep crime down, we’re going to keep them out and immigrants commit crimes at higher rates?”
Once again leaning on Trump v. Hawaii, the Justice Department said a finding by the president that the entry of certain persons would be detrimental to the interest of Americans would be sufficient.
The immigration attorneys also argued the Trump administration was burdening their clients with new requirements to be eligible for visas when the holdup on visa adjudication ends, a claim the government firmly denied.