By Alyssa Aquino

Law360 (August 19, 2020, 8:11 PM EDT) -- A D.C. federal court on Wednesday rejected diversity visa winners' same-day emergency request for unredacted copies of the State Department's guidance on how its consulates should roll out recent visa suspensions, calling the motion premature.

In a minute order, U.S. District Judge Amit P. Mehta ordered counsel for visa winners suing the Trump administration over their frozen visa applications to meet with government attorneys to hash out their viewpoints on the government's decision to black out certain interagency communications before handing them over.

These discussions should have happened before the visa winners filed the emergency request early Wednesday, the federal court said, taking note of communication issues between the parties.

"Absent a meaningful meet and confer, ruling on plaintiffs' motion would be premature," he said. "The parties must engage in a genuine meet and confer before the court will consider any renewed motion."

Rafael Ureña, one of the plaintiffs' attorneys, said in a statement to Law360 that he hopes the government will provide a clean copy of the administrative record. "But should they not, we will be prepared to immediately refile a motion to compel regarding the redactions," he said.

Representatives for the U.S. Department of Justice didn't immediately respond to a request for comment late Wednesday.

The short order comes hours after diversity visa winners asked the court to force the government to hand over unredacted copies of the U.S. Department of State's cable communications to its consulates.

Under court order, the government had produced a 278-page trove of documents containing every policy, practice or directive the State Department gave its components on how to roll out President Donald Trump's order barring certain visa holders — including diversity visa holders — from entering the U.S. from abroad.

Winners of the 2019 diversity visa lottery allege that the government is using the travel restrictions to blockade them from obtaining their visas. By law, they must receive the visas by Sep. 30, or the opportunity disappears entirely.

According to court filings, 51 complete pages of the 278-page haul were redacted. Moreover, the blackouts appear to hit key communications, including three paragraphs of the State Department cable that first directed its consular officers to stop processing diversity visa applications, the recipients argued.

"[The cable] is consistently referenced and cited throughout the record as an operative guidance," the lottery winners explained. "Should the redactions not be considered privileged, an unredacted copy of the cable should be made available to the plaintiffs."

The government additionally blacked out the contents of four webinars that consulates received on how to carry out the visa suspension. One of the presentations was sent out on Aug.12, the same day Judge Mehta ordered the Trump administration to release every policy, practice and directive consulates received in light of the travel ban, the visa winners pointed out.

There is "the awkward possibility" that parts of the record were created in light of how the diversity visa litigation is playing out. "If the court compels defendants to produce the redacted documents to plaintiffs, this [cloud] of doubt could be mitigated," the visa winners said.

Attorneys for the federal government slammed the emergency motion in a brief filed late Wednesday, saying the visa winners' attorneys failed to reasonably confer with them before they put in the request.

The visa recipients had sent an email request to talk about the redactions on Tuesday. Robert Caplen, the U.S. Department of Justice attorney who was the main recipient of the message, never responded, the visa winners said in court filings.

But the government pointed out that Caplen's email address was typed incorrectly. And even though Caplen didn't personally receive or respond to the email, the attorneys who were copied onto the message "promptly" replied, with some suggesting possible dates to meet and confer. One attorney even noted that the State Department was reconsidering some of the redactions, but that they would discuss that further at another time.

"Plaintiffs' single email communication ... amounted to 'perfunctory action' rather than any good faith attempt to take 'real steps to confer' with counsel about the government's position," the government said.

In an immediately filed reply brief, the visa winners' attorneys acknowledged their mistake with Caplen's email address but said they never received messages from the rest of the government team.

"It is probably the case there was an unfortunate technical issue with the original bounce back sabotaging the cc's as well," the visa winners' attorneys said.

Ureña told Law360 during an early Wednesday call that even with the redactions, the record provides a "pretty good picture" of what was happening in the State Department since the spring.

In March, the State Department pared down its overseas operations to mission critical services in an attempt to curb the spread of the coronavirus. Affected by the mandate were the thousands of winners of the 2019 diversity lottery, whose formal visa applications were put on ice until normal operations were restored.

But although the State Department began a staged reopening of its overseas operations in July, the record shows that resuming progress on the diversity visa applications wasn't included in any phase of reopening, the visa recipients said.

A State Department spokesperson said the department doesn't comment on pending litigation.

The diversity visa winners and their beneficiaries are represented by Rafael Ureña, Curtis Lee Morrison and Abadir Barre of the Law Office of Rafael Ureña in the Mohammed and Fonjong suits, Charles H. Kuck of Kuck Baxter Immigration Partners LLC in the Aker suit, and Jesse M. Bless of the American Immigration Lawyers Association, Karen C. Tumlin and Esther H. Sung of the Justice Action Center, Laboni A. Hoq of the Law Office of Laboni A. Hoq, Stephen Manning, Nadia Dahab and Tess Hellgren of the Innovation Law Lab, and Andrew J. Pincus, Matthew D. Ingber and Cleland B. Welton II of Mayer Brown LLP in the Gomez suit and Geoffrey Forney of Wasden Banias LLC in the Panda suit.

The government is represented by Christopher Thomas Lyerla, James Wen and Thomas Benton York of the DOJ's Civil Division, and Robert A. Caplen and William Chang of the U.S. Attorney's Office of the District of Columbia.

The suits are consolidated under Gomez et al. v. Trump et al., case number 1:20-cv-01419, in the U.S. District Court of the District of Columbia.

--Editing by Haylee Pearl.

Update: This story has been updated with details on Judge Mehta's late Wednesday court order.

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