Frequently Asked Questions About Gomez v. Trump

by Tess Hellgren — Posted in Litigation on October 21, 2020

Gomez v. Trump FAQ

Updated Tuesday, February 9, 2021

 

Lawyers from the American Immigration Lawyers Association (AILA), Justice Action Center (JAC), and Innovation Law Lab, with pro bono support from Mayer Brown LLP, filed the lawsuit Gomez v. Trump in the summer of 2020 on behalf of family-based immigrant visa petitioners, diversity visa 2020 lottery winners, and nonimmigrant employment-based visa sponsors, challenging President Trump’s April and June 2020 proclamations which, in effect, stopped almost all immigration to the United States for the remainder of the year.  

On September 4, 2020, a federal court in Washington, D.C. issued a preliminary injunction and ordered the Trump administration to stop denying immigrant visas to 2020 diversity visa winners (DV-2020). It also ruled that the order applies to all DV-2020 lottery winners, and not just the plaintiffs named in the lawsuits. On September 30, the court amended its ruling and ordered the State Department to reserve 9,095 diversity visas, past the September 30 deadline, for 2020 diversity lottery winners. It also ruled that lawyers representing the Gomez plaintiffs would now also represent all DV-2020 lottery winners who have not received visas as of April 2020.  

The court order did not rule that the proclamations unlawful at this preliminary stage of the case — meaning that unfortunately, individuals impacted by the immigration ban, even if they had valid visas, could not enter the U.S. 

On February 2, 2021, President Biden issued an Executive Order directing a review of agency actions that are inconsistent with the administration’s policy that “immigration processes and other benefits are delivered effectively and efficiently.” However, neither this Executive Order — nor others signed by President Biden since he took office — rescind or make any explicit reference to the immigrant visa ban (Presidential Proclamation 10014) or nonimmigrant visa ban (Presidential Proclamation 10052). These Proclamations thus remain in effect and continue to prevent certain immigrants (including DV-2020 selectees) from entering the United States through March 31, 2021.

 

FAQ 

Q: What does it mean that President Biden has not overturned the proclamations?

Presidential Proclamation 10014 (the immigrant visa ban) and Presidential Proclamation 10052 (the nonimmigrant visa ban) remain in force, preventing people who have received certain immigrant and nonimmigrant visas from entering the United States.  The Proclamations are set to expire on March 31, 2021. Before President Trump left office he extended the immigrant and nonimmigrant visa bans that had previously been set to expire on December 31, 2020. These bans are now in place until March 31, 2021.

Q: Is there a chance that President Biden will end the Proclamations at a later date? 

Yes, there is a chance, but we have no definite information about the President’s plans. The Proclamations will expire on March 31, 2021, if President Biden does not rescind them earlier.  President Biden may seek to renew them as well, although he has provided no indication that he intends to do so. The Proclamations were not mentioned in the February 2 Executive Order directing review of certain immigration policies, however.   

Q: What does it mean for Gomez v. Trump that the Proclamations have not yet been rescinded?   

Gomez counsel continues to litigate the case at both the district and circuit courts and seek relief for those affected by the Proclamations.  On January 20, the government filed its Motion for Partial Summary Judgment in district court. On February 3, Gomez class counsel filed Plaintiffs’ opposition to the government’s motion, along with our own summary judgment motion. You can read our filing here. The government now has until February 17, 2021, to oppose and reply to Plaintiffs’ filing, and Plaintiffs have until March 3, 2021 to reply to the government’s opposition. As per the court’s order, summary judgment briefing is limited to claims regarding the Administrative Procedure Act, mandamus, and related claims concerning visa adjudication and issuance. This means that we are asking the court to decide the case in favor of the plaintiffs, which would allow processing of the 9,095 set-aside visas for DV2020 class members to begin, as well as the processing and adjudication of the family-based immigrant visas and non-immigrant visas as well.

At the same time, Gomez Plaintiffs have pursued their appeal of the district court’s decision that the Proclamations are not unlawful, and the district court erred in not entering an injunction setting the proclamations and their implementation aside. Gomez class counsel argued this appeal before the D.C. Circuit on January 14, 2021.  You can listen to audio of that argument here.

Gomez counsel also advised the D.C. Circuit panel of judges that the Biden administration has decided to leave the Proclamations in place for now. Following the President’s decision not to rescind the Proclamations, we notified the Court and requested an urgent decision. The federal government replied to this notice by saying they did not have any information on whether the Biden administration would keep the bans in place or rescind them. Following the government’s response on February 8, 2021, we filed a follow-up notice explaining that an order of the Court remains necessary to allow visa holders to enter the country.

On February 9, the D.C. Circuit remanded our case to the district court to allow the district court to consider whether it can grant interim relief to the class.  The order also instructs the district court to determine whether the government intends to pursue enforcement of the Proclamation.  While the district court takes these actions, the appeal will be temporarily placed on hold. The district court will hold a status conference on the case on February 10, 2021, at 4 PM Eastern Standard Time.  The public may listen to the status conference by dialing the court’s toll-free public access line: (877) 848-7030, access code 321-8747.

Q:  What’s the status of Gomez v. Trump, and what do the court’s various orders mean?

In his September 4, 2020 ruling, the district court judge, Judge Mehta, granted preliminary relief for DV-2020 selectees, and ordered the State Department to process as many diversity visa applications as possible before the September 30 fiscal year deadline. In a later order on September 30, the court ordered the State Department to reserve 9,095 diversity visas pending a final adjudication on the merits in the case. This means after legal proceedings in the district court have concluded.

The court also granted class certification to DV-2020 lottery winners — meaning all diversity visa lottery winners for 2020 who did not receive a visa prior to April 23, 2020 are covered by the court order, and not just the plaintiffs whose names appear in the case. The judge also appointed the Gomez lawyers — that’s attorneys from the American Immigration Lawyers Association, Justice Action Center, Innovation Law Lab, and the Law Office of Laboni A. Hoq, who have been working on the case pro bono — as class counsel.

The Gomez case did not prevail in enjoining the ban on immigration against all impacted visa categories. We filed an expedited appeal of this ruling and our challenge to Trump’s ban on entry to the United States, and the appeals court held oral argument on January 14, 2021.  On February 9, 2021, the D.C. Circuit remanded the case to the district court to allow the district court to consider whether it can grant interim relief to the class and to determine whether the government intends to pursue enforcement of the Proclamations.

Q: Are there other cases that have provided relief for non-DV-2020 plaintiffs?

On October 1, a district court in California struck down Trump’s June proclamation barring nonimmigrant workers, so long as they or their sponsoring employers are members of the U.S. Chamber, National Association of Manufacturers, Technet, and the National Retail Federation. This is good news for those visa applicants. Unfortunately, it does not help all impacted nonimmigrant workers, nor diversity visa winners and individuals who have been separated from their families as a result of the President’s bans on entry.

The Northern District of California also granted a preliminary injunction to beneficiaries of immigrant relative visa petitions filed by 181 individual family immigration petitioners.  Family members of named plaintiffs in that case should contact their counsel with any questions.

 

 FAQ for DV-2020 selectees

Q: Will the consulates resume the processing of diversity visas for fiscal year 2020 if the Proclamation is rescinded or expires? 

By statute, the consulates are not permitted to issue diversity visas to DV-2020 lottery winners after September 30, 2020.  However, Judge Mehta’s order set aside 9,095 diversity visas that will be issued to the class if we prevail in the case.  Because the case is still pending, we do not know if those visas will be made available to class members.

Q: How many DV-2020 selectees will actually receive visas?

If we prevail before the district court on summary judgment and the 9,095 diversity visas are ordered to be issued, the State Department estimates that the total number of diversity visas that will have been issued for FY 2020 will be around 27,000 (about 13,000 of those have already been issued). This is about half of the number of diversity visas that are issued in a typical year, and we asked the judge to issue a total of about 43,000 visas, taking into account some reduced capacity to process visas due to the COVID-19 pandemic. .

Q: When will the additional 9,095 visas that the court has reserved for DV-2020 winners be processed?

If we prevail on summary judgment, the Court will order the government to issue the additional 9,095 visas.  Briefing on summary judgment will conclude in March 2021.

Q: I was issued a visa in September of 2020 that will expire before the Proclamations’ end date of March 31, 2021.  What can I do? 

You should seek an extension of the visa at the consulate if it was issued for less than six months. For those whose visas were granted for six months, Gomez class counsel will seek relief before the district court that, if granted, would preserve the validity of these visas via reissuance or an extension.

Q: If the Gomez class prevails and additional visas are processed, it will be challenging for me to receive a visa because the consulate in my country is closed. What can I do? 

Unfortunately, the Gomez case will not resolve many of the other practical and legal barriers to immigration to the United States that are in place because of limited visa processing due to COVID-19. You should consult with immigration counsel about issues specific to your own immigrant visa processing.

Q: What is a class action?

A class action is a lawsuit in which a small group of plaintiffs can ask the court for relief on behalf of a large group of similarly situated people. Class actions are useful when there’s a large group of impacted people (for example, the DV-2020 selectees impacted by the President’s proclamations go far beyond the six named plaintiffs in Gomez v. Trump), and it is difficult or inefficient for everyone to file their own lawsuit. As mentioned above, the district court has certified DV-2020 selectees as a class, and appointed Gomez counsel to represent the class with respect to the challenge to the legality of the immigration ban. We do not, however, represent class members with respect to their individual visa processing — including their individual efforts to obtain expedited visa processing, or to seek an exception to the immigration ban.

Q: What does it mean to be class counsel?

In class actions, the court appoints one or more attorneys to serve as “class counsel” to represent the members of the class who are not named plaintiffs in the litigation. The purpose is to make sure that the interests of class members who are not actually in court are protected at all stages of the case. In Gomez, the court appointed the attorneys at the American Immigration Lawyers Association, Justice Action Center, Innovation Law Lab, and the Law Offices of Laboni Hoq as class counsel. Our job is to advocate for and protect the interests of the class members as the case goes forward. We will not be able to advise class members on questions specific to their individual cases, such as issues unique to the status of their visa processing or efforts to seek an exception to the presidential proclamations, but if you sign up here, we will keep you posted on the latest information as it relates to classwide issues.

Q: I’m a DV-2020 selectee, but I was not a named plaintiff in one of the lawsuits against the Trump administration. Does the court’s latest ruling apply to me?

Yes. The district court’s September 30 ruling in Gomez — which ordered the State Department to reserve 9,095 diversity visas for future processing — is not limited to the named plaintiffs in any of the cases challenging the suspension of entry for DV-2020 lottery winners. You are a class member.  You do not need to take additional steps to become a class member.

Q: How do I know if I am a member of the class?

You are automatically a member of the class if you are a DV-2020 selectee, not a named plaintiff in another lawsuit and 1) did not receive a diversity visa as of April 23, 2020; 2) received a visa thereafter; or 3) could receive a visa if Gomez prevails on a final adjudication on the merits before the district court (“summary judgment”).

Q: Will I receive any documents or certificate from the court or attorneys confirming my membership?

No, you will not. Your membership in the class is automatic and we will not send you any confirmation of membership. You can reference proof of your membership in the court’s September 30, 2020 memorandum opinion and amended order certifying the class, a copy of which is available here.

Q: I’m a DV-2020 selectee but was not a named plaintiff in Gomez, nor any other lawsuit against the Trump administration. Do I need to join a new lawsuit to benefit from the Gomez court’s order?

No, you do not.

Q: Should I continue to contact my consulate to request that my application be processed?

You are welcome to do so, but we cannot advise people on questions specific to their individual cases, such as issues unique to the status of their visa processing or efforts to seek an exception to the immigration ban. As we learn additional information that impacts the class as a whole, or learn of any additional steps you should take, we will communicate that to you via email or updates to our website.

Q: 9,095 additional visas does not seem to be enough to cover all the would-be cases that have been thwarted this year because of Trump’s immigration ban. Are you going to ask the court to set aside more?

We did ask the court to reserve more than 9,095 additional visas, but the judge denied our request because of the limitations placed on Department of State consular staff to process additional visas due to the COVID-19 pandemic. If avenues exist to overcome this issue, and increase the number of DV-2020 visas reserved so far, we will explore them.

Q: How do I sign up to receive updates about the status of the Gomez case?

Please sign up here, and we will keep you posted about developments.  This sign-up form is for both DV-2020 selectees and family/employment-based visa petitioners.

Q: I’ve filled out that form on your website. Now what?

Gomez class counsel is soliciting information from all Gomez class members who already have been issued diversity visas.  If you are a DV-2020 lottery winner who received a diversity visa in September 2020, please contact class counsel through this link.

We will be in touch! As we receive important updates from the court about the status of the case, we will make sure and provide those updates to you and other members of the class. We understand that this experience has proven difficult for you and your family. We remain committed to doing everything possible to help you as soon as possible.

 

 

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