Gomez v. Trump: What does it mean to be a class member?

by Tess Hellgren — Posted in blog Litigation on November 16, 2020

By: Jesse Bless, Director of Litigation, American Immigration Lawyers Association; Esther Sung & Karen Tumlin, Justice Action Center; Laboni A. Hoq, Law Office of Laboni A. Hoq; and Stephen Manning, Jordan Cunnings, and Tess Hellgren, Innovation Law Lab.

If you are a FY2020 Diversity Visa Selectee who did not receive a diversity visa on or before April 23, 2020, you are a class member in the certified Gomez class.

This means that you are now automatically a party in the Gomez lawsuit – you are before the court as a party to the action, similarly situated to the plaintiffs in Gomez and the other related lawsuits (Aker, Mohammed, Fonjong, and Kennedy), and you may benefit from a positive adjudication on the merits by receiving one of the 9,095 reserved visas.  It is not necessary for you to join another lawsuit (or to pay any money to do so) in order to participate as a class member or to be eligible for any remedy from the case, including possibly receiving one of the 9,095 visas the court has set aside for FY2020 Diversity Visa Selectees.

Your official status as a Gomez class member was established in the court’s September 30 order, in which Judge Mehta ruled that: “[c]lass certification is now required to place putative class members before the court as parties . . . and to ensure their eligibility for the visa numbers that the court has ordered the State Department to reserve after September 30 pending final judgment.”

In certifying the class, Judge Mehta turned all FY2020 Diversity Visa Selectees who haven’t yet received visas into parties before the court.  If you are a FY2020 Diversity Visa Selectee but did not receive a diversity visa on or before April 23, 2020, and you are not a plaintiff in Aker, Mohammed, Fonjong, and Kennedy, you are now before the court as a party in the Gomez class action.

However, Judge Mehta also determined “that the number of class member exceeds the number of visas reserved by the court, meaning that many class members will not actually obtain a visa.”  Unfortunately, Judge Mehta is correct that many class members will ultimately not receive a visa, because he decided to reserve only an additional 9,095 diversity visas for the thousands of class members.

If the certified class ultimately prevails on the merits before Judge Mehta, each class member (and each class member’s derivative family members) is eligible for one of the 9,095 reserved visas.  The government, however, has appealed Judge Mehta’s decision, which could have a material impact on the outcome of our case before Judge Mehta, including possibly reducing the number of reserved visas to zero. While Gomez counsel do not believe any court will increase the number of visas reserved for the class, the appellate court could overturn Judge Mehta’s decision to reserve visas. The appeal will also prolong the time it takes for the case to reach a final judgment on the merits.

There is nothing in Judge Mehta’s order to indicate that Gomez class members will have a better chance at obtaining one of the reserved visas if they are also plaintiffs in any new, duplicative lawsuits.  This makes sense because class certification is a legal tool meant to benefit similarly situated individuals in one lawsuit, without the individuals having to initiate separate lawsuits on their own.

Additionally, now that the court has certified a class of FY2020 Diversity Visa Selectees, it would likely be improper to give individuals who join a new case priority in obtaining one of the 9,095 visas because, under the rules of class actions, all class members must be treated fairly. While the court has not yet determined how the 9,095 visas will be allocated, it is highly unlikely that priority will be given to individuals who have paid money to join another lawsuit, without some more compelling reason to do so.

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