By Jeffrey Gorsky

Law360 (September 14, 2020, 5:50 PM EDT) --

Jeffrey Gorsky

Recently the government largely won a challenge to the Trump administration's twin travel bans, which suspend certain immigrant visa and nonimmigrant work visa applicants from entering the U.S.

Ruling on a motion for preliminary injunction in Gomez v. Trump, which consolidated five lawsuits challenging presidential proclamations 10014 and 10052, U.S. District Judge Amit P. Mehta of the U.S. District Court for the District of Columbia left the bans almost entirely intact.

Despite holding that the government cannot legally ban visa issuance and temporarily barring the government from applying the ban to foreign citizens who won green cards in the Diversity Visa lottery, the court​​​​​ declined to order the government to resume issuing visas other than the diversity visas.[1]

This may not be the final resolution of this issue. The court left room for several legal arguments that could be used to further challenge the bans in similar cases, including another closely watched case pending in the U.S. District Court for the Northern District of California.

In upholding the entry bans, the court relied on the U.S. Supreme Court case Trump v. Hawaii to significantly restrict the scope of judicial review for such bans. The court accepted the president's economic justifications for the bans at face value, and said that the court could not independently determine whether these stated justifications were rationally supported by the evidence, adding that even if the president acted on "plainly false pretenses," the remedy would lie with Congress, not the court.[2]

On the other hand, the court restricted some of the president's authority under the bans, contradicting long-standing government interpretation. In an unprecedented step, the court held that the legal basis of the travel bans — presidential authority under Section 212(f) of the Immigration and Nationality Act — only applies to entry into the U.S., not to visa issuance.

While Section 212(f) expressly authorizes the president to bar entry to the U.S., the government had always assumed that this authority extended to visas. The U.S. Department of State foreign affairs manual lists Section 212(f) as a ground of visa ineligibility, and State Department visa statistics show a long-standing use of this provision as a ground for visa denials.

However, the court refused to order the State Department to resume visa issuance, as this required a finding that the plaintiffs are likely to suffer irreparable harm without preliminary relief. Because persons affected by the proclamations would remain banned from entry even if they were issued visas, there was no irreparable harm, except in regard to Diversity Visa lottery winners.

The exception the court made is due to special legal rules relating to the processing of diversity visas. Diversity visa eligibility is based on winning a random lottery that is held each fiscal year, and the INA requires that visas can only be issued to a lottery winner before the end of the fiscal year of that particular lottery. Therefore, applicants who are not issued diversity visas by the end of the current fiscal year would suffer irreparable harm.

Moreover, once the visa is issued, a diversity visa holder may enter the U.S. during the period of visa validity, which is six months, even if the period extends into the new fiscal year. So even though diversity visa applicants are currently barred from entering the U.S., it is possible that the entry ban will be withdrawn, allowing them to enter the U.S. before their visas expire.

With only a few weeks remaining in the fiscal year, however, relatively few people are likely to benefit from the resumption of diversity visa processing. The State Department has said it will make efforts to process diversity cases.

The State Department has also said, in apparent defiance of the court's holding that the 212(f) authority did not apply to visas, that it will deny diversity visa applications that are affected by another travel ban — the ban on travel from persons present in certain regions affected by the COVID-19 virus.

The travel bans face another legal challenge in the Northern District of California, and there are reasons why that court may come up with a different resolution. In Doe #1 v. Trump, the U.S. Court of Appeals for the Ninth Circuit stated that the narrow limits on judicial review imposed by Trump v. Hawaii only applied to foreign policy or national security justifications, and the court could use a less deferential review of these travel bans if it concludes they were justified only by domestic economic considerations.[3]

In an earlier article, I suggested that the bans exceeded presidential authority; the bans' justification rests exclusively on the purported threat to the U.S. labor market posed by immigrants and employment-based nonimmigrants, but they unreasonably cover individuals — such as minor children — who are not coming to take up employment and fail to include exceptions for persons without the intention or ability to seek employment.

The D.C. court did not consider this argument, but has been raised in the complaint in the California case.

Another potential objection to the travel bans is that they enabled the administration to implement, on a de facto basis, an immigration agenda that predates COVID-19. It can be argued that the current economic crisis cited as justification for the travel bans is not the true motivation, but is a pretext for implementing the administration's long-standing, pre-COVID-19 immigration policy goals, which otherwise require statutory or regulatory changes.

For example, the immigrant visa ban primarily impacts family immigration — since most family cases require consular visa processing outside the U.S., they are subject to the entry ban. Most employment cases impact people who have already entered and adjust in the U.S., and therefore are not covered by the ban.  

This discrepancy reflects the administration's policy goal of shifting immigration away from family cases, which it calls chain migration, to employment-based cases, which it calls merit-based immigration.  

In regard to the nonimmigrant employment visa ban, the State Department issued an extensive definition of cases that would qualify for a national interest exception to the ban. This guidance allows for the entry persons holding senior level positions. It also imposes new labor condition application requirements reflecting the administration's pre-COVID-19 policy proposals to strengthen LCAs and to raise eligibility requirements for H-1B and L-1 applicants.

On this basis, it appears the bans were not intended to protect the U.S. labor market from the harm caused by the coronavirus, but to achieve policy goals the administration was unable to reach through legislation or rulemaking.

The Gomez ruling strikes an odd balance between the plaintiffs and defendant. On the one hand, it strongly admonishes the government for improperly denying visas:

Defendants' No-Visa Policy is not in accordance with law, is in excess of statutory authority, and is arbitrary and capricious.

But the judge also ruled he could not review the justification for the travel bans, even if they were predicated on plainly false pretenses. Since he left the entry bans in place, he could take no action to correct the illegal denial of visas, except in regard to diversity visas. Since the California court follows a less deferential standard of review and may consider factors not addressed in the D.C. case, the bans may face a stronger challenge in this next round of litigation.
        
The Gomez ruling strikes an odd balance between the plaintiffs and defendant. A pyrrhic victory for the plaintiffs, it made the unprecedented finding that the 212(f) authority only applies to entry, not visas, but since it upheld the entry ban that has little practical effect.

On the one hand, it strongly admonishes the government for improperly denying visas: "Defendants' No-Visa Policy is not in accordance with law, is in excess of statutory authority, and is arbitrary and capricious." But the judge also ruled he could not review the justification for the travel bans, even if they were predicated on "plainly false pretenses," and since he left the entry bans in place, could take no action to correct the illegal denial of visas, except in regard to diversity visas.

Since the California court follows a less deferential standard of review and may consider factors not addressed in the D.C. case, the bans may face a stronger challenge in this next round of litigation.

---

Jeffrey Gorsky is senior counsel at Berry Appleman & Leiden LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. 

[1] Gomez v. Trump , 2020 U.S. Dist. LEXIS 163352 (D.D.C. September 4, 2020).

[2] Trump v. Hawaii , 138 S. Ct. 2392 (2018).

[3] Doe #1 v. Trump , 957 F.3d 1050, 1065 (9th Cir. 2020).

For a reprint of this article, please contact reprints@law360.com.