Politico
By Josh Gerstein
August 21, 2017
A federal judge repeatedly expressed concerns Monday that the State Department’s interpretation of President Donald Trump’s travel ban could cost winners of the so-called diversity visa lottery their best chance at migrating to the U.S.
During an almost 90-minute hearing in Washington, D.C., U.S. District Court Judge Tanya Chutkan mulled issuing an order that could limit the Trump directive’s impact on diversity visa winners from the six countries named in the Trump executive order.
“They’re faced with a deadline that most visa applicants are not faced with. … I think the potential effect of that is they’ll be out of time,” Chutkan said.
Lottery winners who haven’t obtained their immigrant visas yet and don’t qualify for an exemption or waiver from the travel ban can’t get visas right now but may be eligible when the 90-day provision in the ban runs out Sept. 24. By law, diversity visas can be issued only through Sept. 30, meaning some people might have less than a week to get their visas.
In addition, while about 91,000 people won the lottery for the current fiscal year, no more than 50,000 actual visas can be issued, so delay could cost some people their slots if the cap is reached.
The Supreme Court is scheduled to hear arguments on the travel ban Oct. 10, but Chutkan said that would be too late for the current round of diversity visa winners.
“If it turns out it’s not legal and it’s struck down, then the plaintiffs, they are without any recourse,” the judge said.
According to State Department statistics, about 8,600 winners of this year’s lottery were from the six travel ban countries — Iran, Libya, Somalia, Sudan, Syria and Yemen. It’s unclear how many of those people have already gotten visas and how many are still waiting.
About 12.4 million people entered the visa lottery for the current fiscal year, according to State.
Chutkan seemed troubled that people who might have received what they considered a golden ticket could find themselves blocked due to bureaucratic complications involving the short window between the expiration of the travel ban and the end of the 2017 diversity visa program.
“The odds of winning the lottery twice are, I assume, very unlikely?” she asked.
“Vanishingly small,” said Max Minzner, an attorney representing several visa lottery winners.
However, a Justice Department lawyer insisted that none of the plaintiffs in the suit before Chutkan are actually having their visas delayed or blocked by Trump’s order at the moment.
Attorney Catherine Dorsey said one of the four plaintiffs was found exempt from the travel ban and the other three were rejected last year on grounds unrelated to the travel ban.
Dorsey urged the judge not to grant special relief for the diversity visa applicants, arguing that their issues were already taken into account by the Supreme Court when it granted a reprieve from the travel ban to people with bona fide relationships with U.S. individuals or entities.
“The Supreme Court already undertook the same balancing,” she said.
Dorsey also said it’s possible the lottery winners might get visas soon after Sept. 24, although she said that every year some winners don’t receive a visa.
“There’s a good chance that some of these cases will be adjudicated in that last week,” she said.
Chutkan didn’t rule immediately but said she’ll do so soon. At the moment, the case involves only the four plaintiffs from Iran and Yemen, as well as their family members.
However, the National Immigration Law Center and the American Civil Liberties Union are seeking class-action status for the case. That raises the possibility that if the judge orders relief for the named plaintiffs, similar protection could be extended to other diversity visa winners from the six travel ban countries.
Chutkan, an Obama appointee, said during Monday’s hearing that she has personal experience with the immigrant visa process. She didn’t elaborate, but she was born in Jamaica and later naturalized as a U.S. citizen.
Josh Gerstein is a senior reporter for POLITICO.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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