The preliminary injunction hearing in the Gomez v. Trump (& consolidated cases). I will be sharing thoughts as we go along. Should start in a few minutes & last about 90 to 120 minutes. This is a critical hearing. The judge will decide whether to enjoin the visa bans. 1
I’ll be using the #noban hashtag per @curtisatlaw’s suggestion. 2
While we’re waiting, however this case goes, kudos to the various teams of lawyers who filed the cases challenging the 4/22 and 6/22 visa ban lawsuits. 500,000 people are impacted and the work that’s gone into this effort has been massive. #noban 3
Here we go. Roll call of attorneys for judge happening. Now judge is going through preliminaries. 45 minutes per side. #noban 4
Plaintiffs will split time equally between the cases Mohammad and Aker first, then Gomez then Panda. Plaintiffs will try to divide up the subjects to avoid duplication. #noban 5
Govt lawyer Glen Girdharry will be presenting with three other lawyers. Claims will be focusing on lines of arguments rather than each case. #noban 6
Rafael Urena from Mohammed is up. Trump’s attempted to rewrite the Immigration & Nationality Act for 3 years. He couldn’t pass legislation & is bypassing with this ban. This goes far beyond an entry ban. The tell-banning parents of US citizens. 212(f) doesn’t ban visas. #noban 7
Judge asking about whether an ultra vires claim has been asserted. Urena is noting that the claim is made via Administrative Procedures Act. Judge asking about final agency action. #noban 8
Judge asking where in the record it says to not process DV visas. Urena is pointing to p. 38 which is a DOS cable that says DV cases are lowest priority. P. 32 that directs consular officers to refuse under 212(f). #noban 9
Judge is summing up the plaintiff argument that 212(f) only bars entries. Urena - 42.81 reg being used by consular officers in refusal of visas. Judge - isn’t it a strange result to allow issuance of a visa and then no entry? Urena giving examples showing why it’s not #noban 10
Judge saying he understands logic as far as DVs go, but why extend to other cases. Urena - not speaking for other plaintiffs groups. Judge wants to know what the DV plaintiffs are asking for. #noban 11
Urena - Mandate to adjudicate the DV cases and state 212(f) is not a ground for refusal of visas. #noban 12
Judge asking whether the proclamation adds an additional eligibility. Urena - It’s adding national interest exceptions. That’s ultra vires (outside the law) and its an APA violation. #noban 13
Judge - What power does Sec of State have with respect to adding new requirements? Urena - Can add things not included in the INA. Doesn’t have the power to add conditions not set out in the Immigration and Nationality Act. #noban 14
DOS long before the proclamation has been slow-walking the DV cases before the beginning of the fiscal year. Only 3K issued half way thru the year based on DOS data. Should have been 25K by that point. #noban 16
Judge asking how he has the authority to do this. Bad faith actions allow the court to craft a remedy. Citing Zayvedes case. #noban 20
Judge - Asking court to adjudicate before end of fiscal year. They have the ability to do that. Alternative - if govt says it cannot, Aker plaintiffs believe judge has the authority to reserve. Can order retroactive application of the law. #noban 21
Judge - If he agrees with APA claim regarding withholding adjudications, is there a need for class relief? Welton - It assures remedy applies to everyone. #noban 23
Welton - Trump doesn’t get to rewrite huge sections of the INA. Judge - Didn’t Supreme Court reject in Hawaii v Trump? Welton - Hawaii required an actual analysis. Judge - Isn’t just saying unemployment enough? Welton - foreign policy gets more deference. #noban 24
Judge - Hawaii doesn’t mean that the Pres has to meet the same level of detail as that case. Welton - must still be a rational finding. No evidence in record to support this. Still violates separation of powers. DOS can’t rewrite admission requirements. #noban 25
Welton - INA specifies what labor related controls can be imposed on a visa applicant. Example - requiring wage 15% above what Congress requried for H-1Bs. #noban 26
Terrible audio problems on this by the way. Judge mentioning Doe case which limits 212(f) to foreign policy. How does the judge tell the difference between natl security and domestic? Welton - Economic measures are something Congress can address. #noban 27
Welton - citing non-delegation doctrine. Congress can’t give away all their power. There have to be limiting principles. #noban 28
Judge asking why there should be a different standard in non-delegation for foreign affairs versus domestic. Welton explaining history of 212(f). There has to be a limiting principle. #noban 29
Goeffrey Forney from the Panda case is now up. 6/22 ban are ultra vires. They go beyond 212(f). They violate Congress’ carefully crafted legislative framework. #noban 29
Judge is asking about the text of the proclamation. Forney is correcting the judge’s misconception that the plaintiffs in that case had valid visas. #noban 30
Judge seems clear now on the immigration process. He’s now asking about the latest cable and new national interest exceptions. Forney - some people are getting visas and others are not. Many don’t qualify and those that do are still being denied. #noban 31
Forney - their case doesn’t depend on findings in the proclamation. Instead, it overrides Congress’ framework. Judge- What if there are dramatic changes in the labor market all of a sudden? #noban 32.
Forney - DOL can rescind LCAs under current regulatory scheme. Trump can’t just overrride. The proclamations cover all sorts of categories that have nothing to do with vulnerable US workers. #noban 33
Plaintiffs are done. Now for a short break. Resuming in 10 minutes. BTW - for those trying to guess where this is going, stop. The govt lawyers haven’t been up yet and it’s the judge’s job to ask hard questions. Be back in a few. #noban 34
And we’re back. Last question for Welton - What’s the source for asking for DV expediting? Cleland is mentioning case. Why not remand versus expedite. Cleland - extreme harm without speeding up. #noban 35
Govt is up. Glenn Girdharry, James Wen and Benton York are going to be speaking. Wen is 1st. Standing issue is going to be 1st. But 1st addressing actual DVs issued. It’s 12K. Admits that 40K+ still available. #noban 36
Asserting that plaintiffs in Aker haven’t asserted standing & others haven’t submitted evidence. Judge is pushing back. Communications with plaintiffs - isn’t that enough? Wen - Fair point for ppl that submitted ev. But that invites bigger question of redressability. #noban 37
Judge - Don’t the plaintiffs have to only show one plaintiff with standing in each case? Is DOS saying they can’t process ANYONE for a DV in next 4 weeks? Wen - vast majority of consular posts haven’t resumed. Judge -Isn’t ev that some consulates issuing visas enough? #noban 38
Wen - Only mission critical/emergency case being done. Only 14 age out cases done. 1000s of DVs is different story. Judge- Only one plaintiff needs to be adjudicated for standing. Wen - Needs to show consulate is fully operational. #noban 39
Judge- How would plaintiffs know? Wen - It’s on web site. Wen - Plaintiffs have to prove any of them can’t get the visa. Judge - They don’t need to show the visa would be issued. Just not being processed. Wen - Admits this. But COVID means no visa services. #noban 40
Judge - Are you suggesting all consulates shut down? What about the ev submitted regarding Japan. Judge ready to move on. #noban 41
Wen - Now moving on to substance. No cause of action under Administrative Procedure Act. No judicial review. Judge cuts off and says what about the ultra vires problem? Wen trying to say that wasn’t asserted. Judge is correcting him. #noban 42
Wen - US Chamber case distinguishable regarding DOL implementation of an exec order. There is no final rule here. Judge - Final agency action not limited to regs. Agency communications count, don’t they? #noban 43
Judge - Don’t DV applicants have a final agency action and no plan to adjudicate in next 4 weeks. Does DOS intend to process any DV visas before 9/30? Wen - No. They’re not mission critical. Judge - I’ll take that as a no on doing anything before 9/30. #noban 44
Judge now talking about 1201(g). Govt - applicant found to be inadmissible doesn’t need a visa to be adjudicated. Judge - Where does it say that in the language? Language only talks about people deemed inadmissible. Not the plaintiffs. #noban 45
Judge - The INA treats visa issuance as distinct from entry. Where does 212(f) give the Pres authority to regulate visa issuance? Only speaks to entry. Wen - Sup Ct said in Hawaii. Judge - The examples are from a different section of law re admissibility. #noban 46
Wen - Hawaii case permits Pres to stop visa issuance. Judge - Show me where it says that? “That’s okay - It’s not there.” #noban 47
Wen - Consular officer doesn’t make determination on eligibility for a visa until at the interview. Judge - But you’re not permitting people to even get to that point. Wen - Not 100% accurate. There may be some cases moving along. Judge - Any being moved? Wen - No. #noban 48
