WASHINGTON (CN) — A federal judge seemed reluctant Thursday to make the State Department process diversity lottery visa applications for citizens of Iran and Yemen, two countries covered under President Trump’s immigration ban.
Reluctant to weigh in while the matter was before the U.S. Supreme Court, U.S. District Judge Tanya Chutkan ordered the Department of State on Sept. 29 to reserve unused diversity lottery visa numbers for the applicants, pending the Supreme Court ruling. That ruling, on Dec.4, allowed the ban to take effect while legal challenges play out in lower courts.
The State Department claims the matter is moot and wants it dismissed. During oral arguments Thursday, Department of Justice attorney Catherine Dorsey said the statutory deadline for processing diversity visa applications expired on Sept. 30.
“We think the end of the fiscal year here is controlling,” Dorsey said during the 45-minute hearing.
Chutkan cited two cases in her Sept. 29 order — Przhebelskaya v. U.S. Bureau of Citizenship & Immigration Services and Paunescu v. Immigration and Naturalization Service — which she said gave the court authority to order the State Department to process visas past the statutory deadline.
Chutkan cited the cases Thursday morning as she hypothetically considered ordering the State Department to process the visas.
“Wouldn’t that just be enforcing my prior order?” the judge asked.
Dorsey disagreed. Though just 24 of 50,000 diversity visa slots remain open, Dorsey said the State Department aims to issue 50,000 diversity visas each year, but sometimes goes slightly over or under that number. Just because there are leftovers doesn’t mean other applicants are to them. That would lead to “a free for all,” Dorsey said, and the plaintiffs here are not entitled to special treatment.
The diversity immigrant program was established in 1990 as part of the Immigration and Nationality Act. It makes 50,000 visas a year available to people from countries with traditionally low immigration rates to the United States. Winners in the diversity lottery are picked randomly, but the State Department extensively vets the applicants, who must pass a background check and meet minimum work and education standards before they receive a visa.
Diversity visa winners are entered on a track to become lawful permanent residents, with their immediate family members. President Trump wants the program ended.
On Thursday, government attorney Dorsey told Chutkan that the expiration of Section 2(c) of President Trump’s March 6 executive order, which prohibited entry to the United States for 90 days for people from the Muslim-majority countries Yemen, Syria, Iran, Sudan, Libya and Somalia, rendered the case moot for lack of standing.
Plaintiffs’ attorney Max Minzner, with Jenner Block, rejected these arguments.
“We believe both of those arguments are incorrect,” Minzner said.
Attorneys with the American Civil Liberties Union, Jenner Block and the National Immigration Law Center filed the Aug. 3 mandamus petition on behalf of four diversity lottery visa winners from Yemen and Iran. They argued that the State Department had wrongfully applied Section 2(c) of the executive order to their clients, and refused to process their clients’ applications. They asked the court to enjoin that policy and require the State Department to process them.
After the Supreme Court granted the government’s petition for certiorari on June 26, it stayed lower court injunctions for people with no bona fide relationship with the United States.
Three of the four petitioners were able to obtain their diversity lottery visas by showing they had a bona fide relationship with the U.S. The attorneys have amended the petition, adding three new clients.
ACLU attorney Arthur Spitzer said in an email Thursday that Chutkan should enforce her Sept. 29 order.
“We think she ought to order relief for the plaintiffs because they were unconstitutionally denied immigrant visas, and we think she has the power to do that because she preserved her right to do so by issuing an order in September, before the end of the fiscal year,” Spitzer said.
Chutkan challenged that during arguments Thursday, telling Minzner that the Sept. 29 order required the State Department to hold the visa numbers only in the event that the Supreme Court struck down the executive order as unconstitutional.
“They didn’t do that,” she said.
Minzner responded that the Supreme Court did not resolve the case on the merits, returning the issue to Chutkan.
She balked at the idea.
“Except no one’s entitled to a visa,” she said.
Chutkan asked equally tough questions of both parties Thursday but expressed hesitation about requiring the State Department to process the applications, saying courts have no role to play in determining who can enter the country.
“That’s a quintessentially executive function,” she said.
Spitzer said that all Chutkan need do to allow the case to proceed is to deny the government’s motion to dismiss.
“That’s the only issue actually before her,” Spitzer said. “Then there can be discovery to show that our clients would have received visas but for their nationality, and further briefing and argument on various legal issues.”
Chutkan did not indicate when she will rule, but indicated it may not be long.
The Department of Justice could not be reached for comment after business hours.