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DV-2021 Delays (Goh v. Blinken)

DV-2021 Delays (Goh v. Blinken)

September 30, 2021 Update

Today, Judge Mehta ordered 481 visas reserved for Goh Plaintiffs beyond the fiscal year. The reservation of visas beyond the statutory deadline is extraordinary relief and we are thrilled to have won it. In addition, we believe that litigation resulted in DOS trying to process more cases in an effort to make its numbers look better prior to the September 9 order. Following the September 9 order in our favor, we know that many more cases were adjudicated between September 9 and September 30 than otherwise would have been.

In all, we believe that litigation resulted in many thousands of DV-2021 visas being issued that otherwise would not have been. And many of those visas went to Goh Plaintiffs.

Judge Mehta accepted our arguments on the unlawful nature of the DV-2021 program and repeatedly rejected the argument of the government—an enormous victory on all fronts.

Of course, one of our key asks was that visas be reserved for all Goh Plaintiffs. Judge Mehta ultimately declined to grant that request. Even with 481 additional visas being reserved specifically for Goh plaintiffs beyond the fiscal year, we are deeply disappointed that this will leave some plaintiffs out.

In the coming days, we suggest that plaintiffs who have not yet been issued visas contact the KCC and consulates to again identify themselves as Goh plaintiffs and request that their cases be processed. We recommend that plaintiffs continue to follow up aggressively to advocate for the processing of their applications.

We will not and cannot, however, provide case-specific advice or communications going forward. We must be strict about this and will not be making exceptions. We also will not be able to offer our services in representing plaintiffs directly in their applications with the Department of State. Our role will be limited to providing any updates needed to the government attorneys and to the court. In addition, if any Goh plaintiff needs documentation of their status as a Goh plaintiff (i.e. a copy of the amended complaint showing their name), we will provide that without further advice. But that will be the extent of our role. If you believe that your case before the Department of State would benefit from the services of an attorney, you would need to hire an attorney not affiliated with any of the three IMMpact Litigation firms.

Finally, we would like to extend our thanks to you for having had the courage to challenge the Department of State’s unlawful treatment of your cases. We are honored to have been able to represent each of you in this battle. Thank you.

September 27, 2021 Update

Today the District Court for the District of Columbia held a status conference to discuss the potential reservation of diversity visas beyond the September 30 fiscal year deadline. The Court began with questions for Charles Kuck on behalf of Goh Plaintiffs. Mr. Kuck explained that first and foremost, the Court should reserve visas specifically for Goh Plaintiffs. To show that the number was reasonable, the Goh team had first argued that Defendants’ bad faith administration of the DV-2021 program meant that the court should reserve enough visas to make sure all 55,000 visa numbers were used. Or, in the alternative, the Court should reserve a large percentage of remaining visas, at least 20,000, proportional to the Department of State’s proven ability to process other types of visas.

Judge Mehta expressed some hesitation that such an order for named plaintiffs from Goh and the Goodluck cases would actually put plaintiffs in a more advantageous position than they would have been had the government behaved lawfully throughout. Mr. Kuck, and Rafael Urena on behalf of Goodluck plaintiffs, urged that named plaintiffs had brought these claims and deserved to have the chance to benefit from relief ordered.

The government attorney argued that the reservation of visas for plaintiffs would effectively rewrite the Immigration and Nationality Act to allow plaintiffs to jump ahead of non-plaintiffs. Mr. Kuck explained that DoS targets the number of selectees to get to approximately 55,000 per year, and that a significant number of selectees either do not pursue or do not qualify for diversity visas. It would be inappropriate, therefore, to try to level plaintiffs’ chances to what their chances would have been amongst all DV-2021 selectees.

In the end, Judge Mehta said that perhaps an order specific to plaintiffs would not be unfair to non-plaintiffs. Rather, it is the end of fiscal year 2021 that naturally disadvantages plaintiffs, because they would no longer be eligible for visas without this lawsuit anyway.

Mr. Kuck argued that because summary judgment has already been granted to Goh plaintiffs, DoS should process any reserved visas immediately, and the court should order the government to complete all adjudications of reserved visas for Goh Plaintiffs in fiscal year 2022.

The government attorney argued that the court should not reserve any visas. Judge Mehta asked government counsel, if he disagrees with them, do they have a number or a framework to suggest for how many visas should be reserved? The government attorney said they had not discussed the matter with Department of State. Judge Mehta requested that the government file something by 5:00 p.m. tomorrow, September 28, explaining this issue.

Judge Mehta announced he would make his decision by September 30. We will update you as soon as we have any news.

September 2021

On September 9, 2021 Judge Mehta issued a decision in Goh v. Blinken. The Court found that DOS policies were unlawful and had unlawfully delayed the processing of DV-2021 applications.  We are grateful that the court saw through the government’s arguments and justifications and thrilled that he ruled in our favor.  That said, despite our request, he declined to give explicit prioritization to Goh plaintiffs (or plaintiffs from the other cases).  This is based on his belief that the statute requires applications to be adjudicated in random order. We disagree with this part of his order, but for now, we are bound by it.

Judge Mehta ordered DOS to make good faith efforts to expeditiously process DV-2021 before the 9/30 deadline without reliance on their tiered priorities.  He will hold a hearing on 9/27 to assess the numbers and decide whether (and how many) further visas will be reserved beyond the 9/30 deadline. At that time we will again urge Judge Metha to reserve all unused DV-2021 visas to maximize the chances of each of Plaintiffs securing a visa.

Below please find suggested language for plaintiffs in three situations for you to contact KCC and/or the consulate. We recommend that you do so immediately.  Please note that this is sample language only and specifics about your circumstance will have to be inserted/added:

For Plaintiffs with cases that have not yet been documentarily qualified by KCC:

My name is _____ and I am a DV-2021 selectee and a Plaintiff in Goh v. Blinken, 1:21-cv-00999-APM.  I provided my documents to KCC on DATE. To date, I have not received notification that I am documentarily qualified.

On September 9, 2021 in Goh v. Blinken, the U.S. District Court for the District of Columbia ordered that DOS must undertake good faith efforts to expeditiously process DV-2021 applications prior to September 30, 2021 without regard for the DOS’s tiered prioritization structure.

In accordance with the court’s order, I would like to request that KCC immediately review my documents, deem my case documentarily qualified, and work with the consulate to schedule an interview before September 30.

Plaintiffs who are documentarily qualified but have not been set for interview:

My name is _____ and I am a DV-2021 selectee and a Plaintiff in Goh v. Blinken, 1:21-cv-00999-APM.  I provided my documents to KCC on DATE.  KCC deemed my case documentarily qualified on DATE and since that time I have been waiting for an interview to be set at the consulate in _______.  To date, I have not been scheduled for my immigrant visa interview.

On September 9, 2021 in Goh v. Blinken, the U.S. District Court for the District of Columbia ordered that DOS must undertake good faith efforts to expeditiously process DV-2021 applications prior to September 30, 2021 without regard for the DOS’s tiered prioritization structure.

In accordance with the court’s order, I would like to request that my case immediately be set for interview no later than September 30.

Plaintiffs at problem consulates where consulates are shut down:

My name is _____ and I am a DV-2021 selectee and a Plaintiff in Goh v. Blinken, 1:21-cv-00999-APM.  I provided my documents to KCC on DATE.  KCC deemed my case documentarily qualified on DATE.  To date, I have not been scheduled for my immigrant visa interview.

On September 9, 2021 in Goh v. Blinken, the U.S. District Court for the District of Columbia ordered that DOS must undertake good faith efforts to expeditiously process DV-2021 applications prior to September 30, 2021 without regard for the DOS’s tiered prioritization structure.

In accordance with the court’s order, I would like to request that my case immediately be set for interview no later than September 30.  If the consulate is not generally scheduling cases at this time, I request that an exception be made and that my case given the court’s order.  Or, in the alternative, I request that my case immediately be transferred to the consulate in ______ and set for an interview there no later than September 30.

Click here to view the Motion.

August 2021

The State Department’s failure to move DV-2021 cases in a timely manner is challenged in this case and forces the agency to adjudicate cases after the 9/30/2021 deadline if they are unable to do so.

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