Panel Rules for Visa Lottery Winners Fighting Travel Ban

WASHINGTON (CN) – The D.C. Circuit gave would-be immigrants impacted by a version of President Donald Trump’s travel ban another chance Tuesday to secure their spot in the yearly diversity visa lottery after they were denied entry into the U.S. following a lengthy legal battle.

Muslim and civil rights groups and their supporters gather at a rally against President Donald Trump’s travel ban in front of the White House on Oct. 18, 2017. (AP Photo/Manuel Balce Ceneta)

Each of the challengers were winners of the diversity lottery program for fiscal year 2017, but the second version of Trump’s travel ban included Yemen and Iran among six countries whose citizens it wanted to forbid from entering the United States. The State Department later denied each of the applicants a visa, and a federal judge dismissed their ensuing challenge as moot.

In June 2017, the U.S. Supreme Court upheld in part the president’s executive order barring entry to the U.S. by people from several Muslim-majority nations. In the run up to the showdown at the high court, federal courts around the U.S. issued injunctions to stop the executive order from going into effect.

But the Supreme Court ruled that so long as a “credible claim of a bona fide relationship” with a person or entity in the U.S. existed, exceptions could be granted. Two days after that ruling, the State Department published a memo instructing consulates to begin reviewing visa applications and determine eligibility.

In Tuesday’s ruling from the D.C. Circuit, U.S. Circuit Judge Thomas Griffith found that consular officers interviewed the plaintiffs in the case and “determined that they would have been eligible for diversity visas but for the issuance of” the second travel ban executive order, referred to in the opinion as EO-2.

“Because plaintiffs were from Iran and Yemen – countries subject to the entry ban – and could not qualify for exemptions or waivers or satisfy [the] bona fide relationship requirement, the consular’s officers determined that plaintiffs were ‘not exempt from [EO-2’s] suspension of entry’ and denied them visas.”

The abrupt denial, the plaintiffs argued in court, wasn’t based on new standards laid out in retooled State Department guidance. They instead claimed they were denied because the memo barred entry to individuals on the basis of their nationality in violation of federal law.

They further claimed that since only the president is authorized to restrict entry, consular officers violated the Immigration and Nationality Act when they refused them.

The State Department responded by announcing it was on track to issue all of the visas backlogged in the system for 2017– roughly 50,000. But the government stipulated it would not make any new visas up to a certain point, which happened to coincide with the plaintiffs’ application. They were barred yet again.

Instead of wasting still available spots in the visa lottery for that year, the plaintiffs suggested the department merely assign the unused numbers to them. Meanwhile, a third iteration of Trump’s travel ban was released without any meaningful change for the plaintiffs. The scope and duration of the executive order was limited but Yemenis and Iranians were still flatly prohibited from coming into the U.S.

The district court eventually ordered the State Department to report its unused lottery numbers and hold them for the plaintiffs in the event the Supreme Court found the president’s second travel ban unlawful but by October, the entry restrictions imposed had become moot and the case was dismissed.

But a three-judge panel of the D.C. Circuit reversed and found that dismissal may have been premature.

“Neither their claim that such relief is legally available nor their claim that they are entitled to that relief is so implausible as to deprive the district court of jurisdiction. And there is some chance that this relief will be effective at securing their immigration to the United States,” Griffith wrote for the unanimous panel.

While the government argued visa processing that ended in a fiscal year could not be lawfully carried over into the next, Griffith found that despite the timeline, the aspiring immigrants’ request was “not so ‘completely devoid of merit as not to involve a federal controversy.’”

“These possibilities ‘may be uncertain or even unlikely,’ but that ‘does not typically render cases moot.’ This case is no different,” Griffith wrote.

U.S. Circuit Judges David Tatel and Stephen Williams joined Griffith on the panel.

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