WASHINGTON (CN) – Fighting for the visas his clients were denied in the wake of President Donald Trump’s travel ban, a lawyer for four Yemenis and Iranians faced grim odds at the D.C. Circuit on Friday.
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. Subsequently the State Department denied each of the applicants a visa, and a federal judge dismissed their ensuing challenge as moot.
Justice Department attorney Scott Stewart emphasized in his oral argument this morning that there is no longer any remedy available to winners of the 2017 visa lottery.
Stewart said the fiscal year of the lottery has long since ended, and the court has no ability to force the agency to issue the visas.
Also devoting a significant amount of his argument to the merits, Stewart told the judges that the executive order barring entry must necessarily bar the issuance of visas.
“A suspension of entry makes someone inadmissible and ineligible for a visa,” Stewart said.
Arguing otherwise for the applicants, however, Jenner Block attorney Benjamin Eidelson tried to distinguish the issuance of visas from Trump’s order barring entry.
Eidelson said the case is not moot since it is still possible to make the government process his clients’ visa applications.
“It’s not a mootness issue if the relief they are seeking, if it is granted, would benefit them,” Eidelson said.
U.S. Circuit Judge Thomas Griffith challenged Eidelson to distinguish the case from the Supreme Court’s eventual decision upholding the current version of the travel ban, calling Eidelson’s insistence that the opinion helps his case “a tough sell.”
“Did they just conflate the analysis for entry and the analysis for visa?” Griffith asked.
U.S. Circuit Judge David Tatel, meanwhile, seemed skeptical the court could decide whether the case is moot without reaching its merits.
“Isn’t that a merits question?” Tatel asked when Stewart insisted the group of people have no legal remedy remaining.