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Here’s my summary of the case of Aker v. Trump. I’m happy to say that Siskind Susser is 1 of 3 firms that teamed up to file this pro bono case on behalf of people selected for Diversity Visas in the annual drawing & who are now ineligible because of the 4/22 & 6/22 visa bans. 1
The other two firms are @Immigrant_Atty and @kuckbaxter. These two firms have amazing teams and I am glad to be working with them on this case. 2
This case focuses on one group impacted by the ban and it has the unique issue of these visas disappearing if they are not issued by 9/30. The suit I’m expecting to be filed tomorrow will be much broader and cover all categories affected by the 4/22 and 6/22 bans. 3
So please no “why don’t you care about [fill in the category] folks?” replies. Expect that case to be filed by the weekend. 4
There are 75 DV selectees from 14 countries as well as their family members, all of who live outside the US. Many are successful businesspeople who intend to create jobs for US workers. There are also healthcare professionals who could help fight COVID. 5
The complaint opens with two quotes in juxtaposition that pretty much tells the story here. 6
Plaintiffs are in various stages of processing. Some have filed with NVC, but are awaiting interviews. Some have been interviewed and are awaiting a decision. Some have visa stamps but are being denied entry or have expired because of lockdowns and need re-issuance. 7
A previous suit on the 4/22 ban on DVs denied because the EO expired on 6/23 and it would still be possible to finish by 9/30. The 6/22 ban extends to 12/31 so it makes this issue moot. 8
About 44K DVs are impacted by this EO. They’re all racing against the same clock to finish on 9/30. People will lose ability to immigrate entirely and many have made substantial plans and detrimentally relied on the US govt. 9
DV-2021 selectees are also hurt because Trump could potentially extend indefinitely. 10
DV-2020 winners with expired stamps are told online that they can get visas re-issued, but consulates then tell them they’re closed & offer no solutions. & DOS is arbitrarily & capriciously saying suspension of entry is a suspension of visa issuance, reissuance & adjudication. 11
Plaintiffs have suffered enormous harms. Fees were lost, medical exams will expire, people quit jobs and sold homes. Many denials only because of the order. The complaint then goes through each plaintiff and outlines their situation. 12
The complaint then goes into jurisdiction & venue. I don’t see this as a serious issue so won’t go into it except to say that the doctrine of consular non-reviewability isn’t an issue because the court isn’t being asked to say yes or no on case – just to require DOS to decide. 13
The complaint now moves to discussing the law. First up – how the Supreme Court decision in the Muslim ban case applies. In that case, the Supremes said 212(f), the section of the INA Trump is using, doesn’t allow Trump to expressly override the INA. Which is what he’s doing. 14
Then the complaint outlines the statutory program Congress created for the DV program and how it was invalidated by the Proclamation. And 212(f) requires the President to say the period for suspending entry. There is no provision stating he may do so indefinitely. 15
Congress wanted to increase the diversity of the immigration population and set up the DV program. Trump’s order will substantially diminish diversity, defying Congress’ will. Trump has called for an end to the DV program and is not doing so by Proclamation. 16
The Proclamation states immigrants will impact the US labor market, but doesn’t say what the impact would be nor support an inference of detriment to the labor market with any citation to economic expertise. That’s because this is just a pretext to kill a program he hates. 17
The complaint then shows a number of Tweets from Trump and quoting him from speeches where he attacks the DV program. 18
Here are the tweets- 18.1
@travelgov tweets are also included to show how the State Department has implemented the 4/22 DV ban. 19
Now for the causes of action. 1st – The WH misapplies INA 212(f). The EO asserts that the entry of immigrants would be detrimental to the interests of the US because they “impact” the US labor market. What that impact would be is not stated nor is analysis provided. 20
While 212(f)’s power is broad, the Pres must FIND a detriment, not just claim an impact. And DV entrants enter as green card holders so they are actually US workers. 21
Trump’s Twitter posts show the language in the Proclamation is a mere pretext. And the order includes kids and others who won’t be in the US labor market. 22
The Proclamation is indefinite which violates 212(f). They didn’t even bother explaining why they extended by four months when they extended on 6/22. And Trump has NEVER ended any of his many prior bans. 23
2nd cause of action – Arbitrary and capricious actions, abuse of discretion in violation of the Administrative Procedures Act. DOS lacked authority to suspend adjudication/issuance of immigrant visas for the DV program. 24
The proclamations that limit the entry of immigrants don’t limit the issuance of visas in the DV program. The court should order DOS to resume issuing and reissuing visas to meet the 9/30 deadline. 25
3rd cause of action – Agency failure to observe procedure required by law in violation of APA. Notice and comment rulemaking requirements were ignored. 26
4th cause of action – Non-statutory ultra vires conduct. The 4/22 & 6/22 bans were issued outside the limits of the Immigration & Nationality Act. The EO’s an “ultra vires” attempt to regulate the US economy and DOS’s expansion to visa issuances are also contrary to the INA. 27
5th cause of action – Agency action unlawfully withheld in violation of the APA. DOS has withheld from acting on Plaintiffs’ cases without authority. Because DOS’ actions are illegal, their suspension of work on DV cases constitutes unlawfully withheld action. 28
DOS has a duty to conclude a matter presented to it within a reasonable time and DOS hasn’t done so. There are just two months left for DOS to finish these cases up and then plaintiffs are barred from getting their visas. 29
6th cause of action- Violation of Take Care Clause of the US Constitution – The Take Care Clause imposes upon the Pres a mandate to respect the work & role of Congress. Congress made its intent clear regarding the DV program and DOS is being “unfaithful” to the INA. 30
7th cause of action – Violation of the Due Process Clause of the US Constitution. Plaintiffs have a due process right and lack of notice and comment violates the Constitution. 31
8th Cause of Action – Violation of Equal Protection Clause of the US Constitution. Refusing to process DV applicants outside US while simultaneously processing those inside US violates the Equal Protection Clause because it causes a disparate impact without a rational basis. 32
Request for Relief – The Plaintiffs are asking the court to assume jurisdiction, stop DOS from suspending the issuance/reissuance of DV visas, order the entry of Plaintiffs with valid Diversity Visas, and order visa stamping for those approved already. 33
Also asking that the court order that all be done by 9/30 or order an extension of validity and award Plaintiffs cost of suit and reasonable attorney’s fees. 34
So this is the end of my summary. I’ll be reporting more on the case as there is news. There are multiple cases that have or will be filed challenges the 4/22 and 6/22 orders and I’ll be following them as well including the big one coming tomorrow. 35
That's the end of the thread. I'm working on a similar summary for the case that's being filed tomorrow covering all visa categories. And I'll be doing a Periscope over the weekend to talk about the four cases filed this week. 36
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