AILA lawsuit

[Dougefresh56 201]

3 minutes ago, Lucky Cat said:

Who said it was "suit proof"?    Anyone can sue anyone else in this country..........I said I think the challenges will end in Trump's favor because the law gives the POTUS a lot of authority in immigration matters.  Consider the travel bans......they were challenged, but the Supreme Court ruled that Trump was within his authority.   The law is pretty clear in its wording about restricting entry into the US.

Correct but the law does not state what kinds of visas can be restricted 

[Quarknase 1,072]

1 hour ago, James120383 said:

 

 

apparently like magic spouses and children will not take away any american job as per the proclamation

well - spouses and children of LPR's do. USC spouses and children don't...

[Ní hUisce 24]

The argument in these suits has never been about entry restrictions as there are loopholes and ways around that. It's about the non issuance of visas. 

Take the K visa for example, the presidential proclamation applies to me but I can still travel to a third country to quarantine before entering the USA. Yet I still have my consulate tell me they are not processing said visa type because of the presidential proclamation. Even on their FAQs on their website they acknowledge that you can travel to a third country to quarantine! Therefore should not affect the issuance of that visa type... But it is. Hence, people are turning to litigation. 

[geowrian 22,336]

Re: DACA

One difference there is neither side argued that he was allowed to terminate DACA. it was the process by which it was done violated the APA.

The other - even more significant - difference is that was done without underlying law (as was DACA when it was created) for people already in the US. The bans in place here are explicitly covered by law under INA 212(f) covering people outside the US.

There's a reason why none of the bans impacted anybody already in the US or those going through thew AOS process instead of consular processing. The legal authority isn't there.

 

1 hour ago, Dougefresh56 said:

Correct but the law does not state what kinds of visas can be restricted 

Correct. And providing such restrictions would be inserting words into the law that aren't there.

"Nobody can rob a bank." cannot reasonably be interpreted as "Nobody can rob a bank except...".

Or like on the I-130, "Provide information about the beneficiary's spouse and children." does not mean only list children who are immigrating. That's inserting words into the statement that are not there.

[Sparkle Sparkle 913]

23 hours ago, Holdanna said:

Anyone have any news regarding the lawsuit filed by the AILA against Trump and Pompeo? I think it was heading to court on 8/27. They are suing to reinstate processing of all categories. Thanks

Your vote is likely to have more effect than any lawsuit....its not going to work ....POTUS is ALPHA!! when it comes to immigration

[HRQX 4,145]

4 hours ago, Angela & Brendon said:

but I believe the people saying there is 0 chance of success are not speaking accurately.

As you said, those cases are quite different. More apt to compare AILA's recent Gomez, et al., v. Trump case to the Trump v. Hawaii SCOTUS case: https://www.scotusblog.com/case-files/cases/trump-v-hawaii-3/

2 hours ago, Ní hUisce said:

Take the K visa for example, the presidential proclamation applies to me but I can still travel to a third country to quarantine before entering the USA.

Note that the Gomez, et al., v. Trump case (the topic of this thread) doesn't challenge the UK and Ireland proclamation nor does it seek for UK and Ireland proclamation to be enjoined. It's challenging the April 22 and June 22 proclamations: https://www.aila.org/infonet/gomez-et-al-v-trump-7-31-20 "AILA and partners filed a motion for a preliminary injunction and class certification, arguing that the April 22 and June 22, 2020, presidential proclamations were invalid, are causing irreparable and unjustifiable harm, and should be enjoined."

https://www.aila.org/File/DownloadEmbeddedFile/85718 "B. The Proclamations" on Page 9

Edited August 31, 2020 by HRQX

[LittlePenguin 15]

The PP did determine spouses and minor children of USCs are not a threat to the job market but spouses and minor children of LPRs are, this is wrong on so many levels. Sadly to say that the PP was not made to protect the job market at all.

Edited August 31, 2020 by LittlePenguin

[Ermehgerdd 172]

Pretty stoked at Judge  Mehta's injunction order today, he seemed to be tracking on that entry vs. visa issuance argument 😂... Congrats to all the 2020DV winners who now have hope to receive their visas!!

 

Excited to see how the rest of this case develops and hope it provides relief to the rest of the plaintiffs!

 

 

[HRQX 4,145]

6 hours ago, Ermehgerdd said:

Excited to see how the rest of this case develops and hope it provides relief to the rest of the plaintiffs!

The judge stated, "the court concludes that the Plaintiffs are not likely to succeed on their challenges to the Proclamations." https://www.courtlistener.com/recap/gov.uscourts.dcd.218517/gov.uscourts.dcd.218517.123.0.pdf

6 hours ago, Ermehgerdd said:

Congrats to all the 2020DV winners who now have hope to receive their visas!!

So the government will get the visa processing fees and USCIS Immigrant Fee, but CBP can still enforce the proclamation by denying them entry: "Plaintiffs’ requests for the court to preliminarily enjoin Defendants from implementing or enforcing Proclamations 10014 and 10052 against Plaintiffs are denied." Even if Trump loses in November, he'll still be President until January 20, 2021. So he may or may not extend the proclamations in December.

[Crazy Cat 39,597]

1 hour ago, HRQX said:

The judge stated, "the court concludes that the Plaintiffs are not likely to succeed on their challenges to the Proclamations." https://www.courtlistener.com/recap/gov.uscourts.dcd.218517/gov.uscourts.dcd.218517.123.0.pdf

So the government will get the visa processing fees and USCIS Immigrant Fee, but CBP can still enforce the proclamation by denying them entry: "Plaintiffs’ requests for the court to preliminarily enjoin Defendants from implementing or enforcing Proclamations 10014 and 10052 against Plaintiffs are denied." Even if Trump loses in November, he'll still be President until January 20, 2021. So he may or may not extend the proclamations in December.

Thanks for providing that link to the court decision.  After reading the conclusion, I think you are correct.  The proclamation is still in force.  In your opinion, were there any wins for the plaintiffs buried in there somewhere?

Edited September 5, 2020 by Lucky Cat

[Ermehgerdd 172]

26 minutes ago, HRQX said:

The judge stated, "the court concludes that the Plaintiffs are not likely to succeed on their challenges to the Proclamations." https://www.courtlistener.com/recap/gov.uscourts.dcd.218517/gov.uscourts.dcd.218517.123.0.pdf

 

He said the Plaintiffs are likely to succeed on all of their challenges to the Implementation of 10014 and 10052 except for one that was not commented on.

 

If 2020DV winners receive their visa this month, they'll have until dates into March 2021 to enter.

[HRQX 4,145]

20 hours ago, Ermehgerdd said:

He said the Plaintiffs are likely to succeed on all of their challenges to the Implementation of 10014 and 10052 except for one that was not commented on.

You should actually read the order:

Quote

CONCLUSION AND ORDER
For the reasons set forth above, the court concludes that the Plaintiffs are not likely to succeed on their challenges to the Proclamations. Plaintiffs, however, are likely to succeed on their claims that (1) Defendants’ No-Visa Policy is not in accordance with law, is in excess of statutory authority, and is arbitrary and capricious; (2) Defendants have unreasonably delayed processing DV-2020 Plaintiffs’ visa applications; and (3) Defendants’ COVID-19 Guidance arbitrarily excludes DV-2020 visa applications from the categories of applications eligible for mission critical and emergency services. The court additionally finds that the DV-2020 Plaintiffs have met the equitable requirements for injunctive relief, but the Non-DV Plaintiffs have not. The court therefore orders the following pursuant to 5 U.S.C. § 705 and the court’s traditional equitable powers:

1. The court preliminarily stays the No-Visa Policy as applied to DV-2020 selectees and their derivative beneficiaries. Defendants[26] may not interpret or apply the Proclamations in any way that forecloses or prohibits embassy personnel, consular officers, or any administrative processing center (such as the Kentucky Consular Center) from processing, reviewing, or adjudicating a 2020 diversity visa or derivative beneficiary application or issuing or reissuing a 2020 diversity or derivative beneficiary visa based on the entry restrictions contained in the Proclamations. Except as provided in paragraphs 2 and 3 below, this order does not prevent any embassy personnel, consular officer, or administrative processing center from prioritizing the processing, adjudication, or issuance of visas based on resource constraints, limitations due to the COVID-19 pandemic, or country conditions;
2. Defendants shall undertake good-faith efforts, directly and through their designees, to expeditiously process and adjudicate DV-2020 diversity visa and derivative beneficiary applications and issue or reissue diversity and derivative beneficiary visas to eligible applicants by September 30, 2020, giving priority to the named diversity visa Plaintiffs in Gomez, Aker, Mohammed, and Fonjong and their derivative beneficiaries;
3. The court preliminarily enjoins Defendants from interpreting and applying the COVID Guidance to DV-2020 selectees and their derivative beneficiaries in any way that requires embassy personnel, consular officers, or administrative processing centers (such as the Kentucky Consular Center) to refuse processing, reviewing, adjudicating 2020 diversity visa applications or issuing or reissuing diversity visas on the ground that the DV-2020 selectee or derivative beneficiary does not qualify under the “emergency” or “mission critical” exceptions to the COVID Guidance;
4. At this time, the court declines Plaintiffs’ request to order Defendants to reserve unprocessed DV-2020 visas past the September 30 deadline or until a final adjudication on the merits, but will revisit the issue closer to the deadline. Accordingly, the court orders the State Department to report, by not later than September 25, 2020, which of the named DV-2020 Plaintiffs in this action have received diversity visas, the status of processing of the named DV-2020 Plaintiffs’ applications who have not yet received visas, and the number of unprocessed DV-2020 visa applications and unused diversity visas remaining for Fiscal Year 2020.
5. The Aker and Gomez Plaintiffs’ motions for class certifications as to DV-2020 selectees are denied without prejudice, subject to final resolution on the merits of Plaintiffs’ challenges to the Proclamations.
6. The court defers ruling on the Gomez Plaintiffs’ motion for class certification with respect to the four putative subclasses representing Non-DV Plaintiffs, as the named Plaintiffs representing these putative subclasses have not demonstrated entitlement to preliminary injunctive relief.
7. Plaintiffs’ requests for the court to preliminarily enjoin Defendants from implementing or enforcing Proclamations 10014 and 10052 against Plaintiffs are denied.

The Parties shall meet and confer and, by September 25, 2020, file a Joint Status Report proposing a briefing schedule for the court’s resolution of the merits.

 

 26 The court’s reference to “Defendants” in its Order excludes the President.

The Proclamation suspends their entry while it's in effect. They can get the visas but can't enter the US with them as long as the Proclamation remains in effect.

20 hours ago, Ermehgerdd said:

If 2020DV winners receive their visa this month, they'll have until dates into March 2021 to enter.

I already addressed that:

21 hours ago, HRQX said:

Even if Trump loses in November, he'll still be President until January 20, 2021. So he may or may not extend the proclamations in December.

 

Edited September 6, 2020 by HRQX

[HRQX 4,145]

20 hours ago, Lucky Cat said:

In your opinion, were there any wins for the plaintiffs buried in there somewhere?

For the DV plaintiffs it'll come down to if the President extends or not Proclamation 10014 in December. If he doesn't, it's a win for them (i.e. they could enter in 2021 before their visas expire). If he does, as @geowrian mentioned in the other thread, it would require separate litigation (that may or may not be successful): https://www.visajourney.com/forums/topic/737815-official-executive-order-for-suspending-entry-of-immigrants/page/55/

14 hours ago, geowrian said:

The way I read it, it essentially just kicks the can down the road. The judge is permitting the visas to be issued as they have a firm date to be issued by or else they are gone forever. If he didn't do that, the issue would settle itself before the merits of the case are actually assessed.

But he was not willing to actually suspend the proclamations as it applies to DV holders. Actually overcoming the EO's restrictions is something for which they don't have that strong of an argument.

 

I think the idea is he is hoping that either the EOs are not extended and the issue fixes itself as a result, or the EOs are extended and the issue of the ability to renew the visas can be litigated separately.

It was the minimum he could do to keep the case alive to avoid the immediate harm to DV winners, but doesn't really resolve any of the underlying issues.

For the non-DV plaintiffs, it's a loss.

Edited September 6, 2020 by HRQX

[Ermehgerdd 172]

5 hours ago, HRQX said:

You should actually read the order:

The Proclamation suspends their entry while it's in effect.

 

you should actually read my post. They're likely to succeed on the *Implementation* of... aka the No-Visa Policy.

 

A win on the argument that DoS must issue visas regardless of current entry restrictions is a win for every visa being held up for travel bans. Like K1s...

 

2020dv winners will at least receive a visa they otherwise wouldn't have gotten at all, they're bought more time for the Proclamations to expire and hopefully for tRump to end his one term.

 

[HRQX 4,145]

26 minutes ago, Ermehgerdd said:

A win on the argument that DoS must issue visas regardless of current entry restrictions is a win for every visa being held up for travel bans.

Note that it's just a Memorandum Order. It was issued so the merits of the case are assessed later at trial and because the 09/30 DV deadline was fast approaching.