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Almaqrami v. Pompeo

United States Court of Appeals, District of Columbia Circuit

August 13, 2019

Hamed Sufyan Othman Almaqrami, et al., Appellants
v.
Michael R. Pompeo, In his official capacity as Secretary of State and John Does, #1-#50, in their official capacity as the consular officials responsible for issuing diversity visas, Appellees

          Argued December 14, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-01533)

          Benjamin M. Eidelson argued the cause for appellants. With him on the briefs were Matthew E. Price, Max J. Minzner, Yolanda Rondon, Arthur B. Spitzer, and Scott Michelman.

          Scott G. Stewart, Attorney, U.S. Department of Justice, argued the cause for appellees. On the brief were Gisela A. Westwater and Erez Reuveni, Assistant Directors, and Joshua S. Press, Trial Attorney.

          Before: Tatel and Griffith, Circuit Judges, and Williams, Senior Circuit Judge.

          OPINION

          Griffith, Circuit Judge.

         Plaintiffs were offered the chance to apply for a select number of "diversity visas." The government never granted them visas, and the statutory deadline to do so has now passed. But this case is not moot because whether the district court retains the authority to award plaintiffs relief is a merits question. We reverse the district court's decision to the contrary.

         I

         A

         In general, a citizen of a foreign country who wishes to come to the United States must first obtain a U.S. visa, which is placed in the traveler's passport. A visa does not guarantee entry into the United States; it only confers the right to travel to a port of entry and apply for admission to enter the country. 8 U.S.C. § 1201(h). Failure to satisfy certain requirements in the Immigration and Nationality Act (INA) will render an alien ineligible for a visa and ineligible for entry. For example, an alien cannot receive a visa if she has "a communicable disease of public health significance," and if she contracts such a disease after receiving her visa, she will be denied entry. 8 U.S.C. § 1182(a)(1)(A). Other parts of the INA apply to only visas or entry. The Secretary of State may, for instance, decline to issue a visa to an alien who abused a position of power to expropriate American property, id. § 1182d, and the Attorney General may decide that certain aliens must pay bonds before entering the country, id. § 1183.

         Each fiscal year, the State Department grants approximately 50, 000 diversity immigrant visas to individuals from countries underrepresented in the immigration process, which allow recipients who are granted admission to enter the country as lawful permanent residents who may live and work here indefinitely. See 8 U.S.C. §§ 1151(e), 1153(c)(1); Pls.' Br. 4 & n.1.[1] The process by which the State Department awards diversity visas is competitive and complicated. An applicant must first apply for and win the diversity visa "lottery." Pls.' Br. 5; see 8 U.S.C. § 1153(e); 22 C.F.R. § 42.33(b)-(c). A lottery winner or "selectee" must submit an application and various documents to be eligible for a visa number-an administrative device used by the State Department to ensure that it does not grant more than 50, 000 visas per year. Gov't Br. 9-10; see 8 U.S.C. § 1202(b); 22 C.F.R. §§ 42.33(f)-(g), 42.61-67. A selectee is eligible to receive a visa number only during the fiscal year in which he applied and was selected ("selection FY"). 8 U.S.C. § 1153(e)(2); 22 C.F.R. § 42.33(f). Visa number in hand, the selectee may schedule a consular interview, and if he meets the criteria to obtain one, the State Department "shall" issue him a diversity visa. 8 U.S.C. § 1153(c), (e)(1); 22 C.F.R. §§ 40.6, 42.81(a); see 8 U.S.C. § 1202(h). Consulates return unused visa numbers to the State Department at the end of each month so that they may be reassigned, but the State Department stops granting visa numbers altogether once it projects that it will issue all available visas to existing visa number holders. Gov't Br. 9-10. Because the diversity visa program restarts each fiscal year, consular officers may not issue diversity visas after midnight on September 30 of the selection FY. 8 U.S.C. §§ 1153(c)(1), 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(a)(1), (d); see 31 U.S.C. § 1102.

         B

         In March 2017, President Trump invoked his authority under 8 U.S.C. § 1182(f) to "suspend the entry of all aliens or any class of aliens as . . . he may deem to be appropriate" and issued the second iteration of his "travel ban"-an Executive Order that temporarily prohibited nationals of specific countries from entering the United States, subject to exemptions and waivers. Exec. Order No. 13, 780 ("EO-2"), Protecting the Nation From Foreign Terrorist Entry Into the United States §§ 2(c), 3(c), 12(e), 82 Fed. Reg. 13, 209, 13, 213-15, 13, 218 (2017); see Trump v. Hawaii, 138 S.Ct. 2392, 2437 (2018). Several district courts issued preliminary injunctions preventing the government from enforcing EO-2's entry restriction, which were largely affirmed by the courts of appeals. See Hawaii, 138 S.Ct. at 2437. But in June 2017, the Supreme Court held that EO-2's entry restriction could take effect while the Court considered the appeals of the preliminary injunctions, except as to foreign nationals with "a credible claim of a bona fide relationship with a person or entity in the United States." Trump v. Int'l Refugee Assistance Project (IRAP I), 137 S.Ct. 2080, 2088 (2017) (per curiam).

         Two days after the Supreme Court's ruling, the State Department issued a "Guidance Memo" instructing consular officers reviewing diversity visa applications about how EO-2's entry ban affected visa eligibility: A consular officer should first determine whether the selectee "is eligible for the [visa], without regard to [EO-2]." J.A. 17. If so, and if he is from a country subject to EO-2, the officer must evaluate whether the selectee qualifies for an exemption or ...


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