Relief on the horizon for diversity visa lottery winners in limbo—09-10-21

Immigration news, in context

This is the ninety-fifth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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As a programming note, we’ll be off next week and will return on September 24.

This week’s edition:

  • In The Big Picture, we break down the recent judicial ruling regarding the diversity visa lottery.

  • In Under the Radar, we discuss a new whistleblower report regarding shelters for unaccompanied migrant children.

The Big Picture

The news: A federal has agreed that the government acted unlawfully in restricting access to visa processing and subsequently deprioritizing diversity visas, and ordered it to  undertake good-faith efforts to process all diversity visa lottery winners from current fiscal year 2021 by the end of the fiscal year on September 30.

What’s happening?

The diversity visa is relatively small part of the overall permanent immigration picture. While certainly not uncontroversial, it doesn’t suck up the same volume of political oxygen as the regularization of undocumented immigrants or the asylum system. However, it was not spared the Trump-era onslaught against all immigration, legal and irregular.

In a nutshell, the diversity visa lottery is just that: a lottery. Its winners obtain not the automatic right but the ability to apply for permanent resettlement in the United States. As far as lotteries go, you have only slightly better odds of winning this one than the actual Powerball, as only 50,000 diversity visas are made available per fiscal year for a total pool of applicants and their dependents totaling somewhere close to 23 million annually. Odds of success: about 0.2 percent. (By law, the total number of DVs available is actually 55,000 per year, but since fiscal year 2000, Congress has taken the additional 5,000 out as a supposed offset necessary to compensate for visas issued under the Nicaraguan Adjustment and Central American Relief Act—a program we’ll break down some other time.)

Contrary to what one might think, nationals of the majority of countries on Earth are eligible to enroll in the lottery; excluded are only countries whose nationals comprised 50,000 or more family-based or certain employment-based immigrants over the preceding five fiscal years (excluding, for example, people who obtained residency through marriage to a U.S. citizen and are not subject to visa allocation limitations.) This list includes the usual suspects: mainland China, Canada, Mexico, Colombia, Guatemala, the Philippines, and a few others. From there, there’s a somewhat complicated formula involving “high-admission” and “low-admission” regions, and then high-admission and low-admission states within those regions, to ascertain the number of visa slots that will be available to each country.

Once someone is actually selected, they go through a whole application process that involves proving either educational attainment or work experience and passing a background check, among other things. Spouses and qualifying children of selected applicants can also apply. One notable facet of the program is that it essentially resets every year. The lottery resets, and the reserved visa numbers usually expire into the ether. This hasn’t really been a problem in the past, as DVs are a relatively light workload for the visa adjudicators, but has become an issue with the immigrant-entry bans that were instituted during the coronavirus pandemic, specifically Presidential Proclamation 10014.

We’ve written about 10014 before; in essence, it prohibited the entry of most would-be immigrants under the argument that they would be a risk to the U.S. labor force during the pandemic recovery. Biden left it in place for over a month after taking office before finally rescinding it in late February. The State Department, which handles the processing of visas abroad, had decided to interpret this order, issued under the notorious INA 212(f), as prohibiting not just entry but issuance of immigrant visas. For most would-be immigrants, this might cause unfortunate delays and a sort of temporary purgatory for their life plans; for diversity lottery winners, it was catastrophic. At the end of their fiscal year, their ability to apply for resettlement would expire permanently, and for those who did receive their visas, an inability to actually enter the country would lead them to go to waste.

Groups of them sued, and in a series of decisions known as Gomez v. Trump I-III, federal judges certified all FY 2020 diversity lottery winners as a class; found that that the interpretation of 10014 as bar on issuance, not just entry, was likely unlawful; extended the visa validity periods for people whose visas would expire before 10014 was set to expire at the end of March; and ordered the government to process the visas as well as reserve an additional over 9,000 visa slots for the people whose applications likely wouldn’t be adjudicated before the fiscal year ended. That litigation remains ongoing, though some of the legal points have been rendered moot by the fact that 10014 was rescinded.

While this was happening, however, a new crop of diversity visa lottery winners were selected, for fiscal year 2021, which started in October 2020. Biden rescinded the proclamation at the end of February, meaning that FY 2021 winners still technically have the ability to have their cases processed, but they lost months of potential processing time. The government has readily admitted it’s unlikely to get to all of their cases, in particular because it’s instituted a visa processing prioritization scheme among its consulates that essentially punts diversity visas to the back of the line. So, FY 2021 winners also sued, in three cases that have been consolidated as Goodluck v. Biden. The legal arguments are a bit different, given visas are being processed, but the plaintiffs argue that there is a substantial possibility that their cases won’t be processed in time given the circumstances so far and the government’s continued use of prioritization.

A federal judge has now sided with the plaintiffs on a variety of questions of law and ordered some relief. First, let’s note that the class is astonishingly large—the Goodluck plaintiffs, who are the most numerous among the three consolidated cases, number over 24,000, a figure so large the judge felt the need to point out it was “not a typographical error.” There are a number of interlocking claims, but they boil down to the following: the so called “No-Visa” policy, i.e. the interpretation that 10014 prevented visas from being issued in the first place, was unlawful and improperly delayed processing; the prioritization scheme is a violation of the Administrative Procedure Act, as it is effectively a policy that was not put up for notice or comment or particularly well-justified; the government has a statutory responsibility to adjudicate the winners’ applications; current circumstances make it substantially likely this will not happen within the necessary timeframe, causing irreparable harm to plaintiffs.

The government countered that this was not an issue reviewable by the courts and there were improper defendants, as the consulates have the discretion to decide how to process visas; that the plaintiffs didn’t have standing to sue; and basically that this whole thing wasn’t its fault anyway, as COVID-19 hamstrung its ability to process visas broad and required it to prioritize how to allocate resources. The judge rejected these arguments, ruling that the No-Visa policy was clearly unlawful, that the prioritization scheme also violated the law, and that while COVID did have an impact on consular operations, the government’s decision-making was the primary cause of the plaintiffs’ risk of not having their visa applications processed. U.S. District Judge Amit Mehta enjoined the prioritization (though only insofar as it applied to DV applicants), ordered the government to make good-faith efforts to adjudicate the visas before the September 30 end of the fiscal year, and left open the possibility of reserving additional visa numbers.

How we got here

The Immigration Act of 1965 ended the eugenicist, national origins-based quota immigration system in the U.S., and kicked off new migration patterns that led to the creation of the diversity visa lottery in the 1990s. Until 1965, it was nearly impossible for people from Africa and Asia to legally migrate to the U.S. due to a succession of laws passed in the 1920s that sought to keep America white. (There was no limit on migration from countries in the Western Hemisphere during this time.) The passage of the 1965 Immigration Act ended the nationality-based quota system, opening the door to significant migration from Asia and Africa—but it also had unintended consequences for prospective immigrants from both Latin America, the Caribbean, and Europe, who suddenly found their ability to legally migrate to the U.S. reduced. 

As Anna O. Law, a political science professor at Brooklyn College wrote for Politico, the diversity visa wasn’t intended to “diversify” the U.S. immigration system; it was created to ensure that Europeans, specifically those from Ireland and Italy, could continue to migrate to the U.S. By the 1970s, there was a sizable population of undocumented Irish in the U.S., and Italian-Americans who petitioned for relatives abroad to migrate to the U.S. faced long backlogs. People who didn’t have family ties or access to work visas were effectively out of luck. A series of temporary visa programs (NP-5, OP-1, and AA-1) were created to alleviate the backlog and ensure that those who had been negatively affected by the 1965 law could still migrate to the U.S. And in 1990, Congress passed an immigration reform bill that set up a permanent visa lottery program designed to benefit people from countries with low levels of migration to the U.S. At first, that meant places like Ireland and Italy. As Law wrote, the formation of the European Union caused European migration to the U.S.—and European interest in diversity visas—to taper off, but the lottery system persisted.

In April 2020, Trump issued two proclamations that effectively suspended the issuance of both immigrant and non-immigrant visas. Unlike other immigration policies issued in the early days of the pandemic, Proclamation 10014 didn’t even bother with a public health rationale; instead, it stated that since the pandemic had “significantly disrupted the livelihoods of Americans,” it was necessary for the administration to stop issuing new visas in order to prevent foreign nationals for “competing” with Americans for jobs. Among them was the diversity visa. (Trump renewed the bans that June.) 

A coalition of family visa applicants, diversity visa lottery winners, and nonimmigrant visa sponsors sued the administration in July 2020, arguing that the ban violated the Administrative Procedure Act and was “arbitrary and capricious.” Regular readers will recognize those terms: they were hallmarks of Trump-era immigration lawsuits. As a reminder, the Administrative Procedure Act prohibits capricious rule-making and requires the executive branch to have well laid out plans for implementing federal policy. While the case was ongoing, a federal judge granted the plaintiffs a preliminary injunction after finding that the administration “had unreasonably delayed processing DV-2020 Plaintiffs’ applications” and that the proclamations “arbitrarily excluded DV-2020 applicants from eligibility for mission-critical and emergency services.” 

The court ordered the administration to “undertake good-faith efforts to expeditiously process and adjudicate DV-2020 and derivative beneficiary applications” while the lawsuit continued, but it did not require the administration to process other applications, such as family-based petitions, because they weren’t time-sensitive in the way the diversity visas were. The administration effectively flouted the court’s order to process and issue diversity visas, and only issued around 15,000 of the 55,000 allotted visas by September 30, the end of the fiscal year. The judge eventually ordered the government to not only process all the visas it failed to process before, but to reserve 9,000 more slots to ensure applicants whose petitions wouldn’t be processed before the end of the fiscal year could have their claims adjudicated.

What’s next?

The ruling at least seems to head off the possibility that tens of thousands of diversity visa lottery winners from this fiscal year will lose out on their chance to resettle in the United States. It also establishes what could be a useful legal precedent, namely that a government policy doesn’t with one hundred percent certainty have to preclude someone from accessing a certain immigration benefit for them to have standing to sue, only create obstacles that establish a substantial likelihood that they will be left out.

One could see this being applied in the asylum context, where there is now similarly a statutory presumption that immigration officials will at least evaluate applicants for immigration benefits that they might be eligible for. If this or any other administration creates programs that don’t necessarily block people from accessing asylum but dramatically restrict access to the system, perhaps a cite to the summary judgement portion of this order could be deployed (this isn’t a directly analogous situation, of course, but the law is about nothing if not finesse.)

What’s left to be seen is how, practically speaking, the government is going to process all the people now covered by both the Gomez and Goodluck orders, particularly if the judge in this case also decides to order the government to reserve additional visa numbers that will be available to the plaintiffs past this fiscal year (which seems rather likely given that there are thousands of unprocessed lottery winners and the fiscal year ends in twenty days). The government will, next fiscal year, presumably have to process all the new winners, plus thousands of winners from both FY 2020 and FY 2021.

One definite wild card here is how the pandemic keeps shaping up. Many of us expected that by the start of fiscal year 2022, we would be finished with it, and yet the Delta variant keeps ravaging the United States and other countries. If outbreaks fully force consulates to close or dramatically reduce operations, Judge Mehta might be more amenable to the government’s arguments (he even alludes to another case where the administration did, in his opinion, provide extensive evidence that processing capacity was essentially out of its hands because of the health situation). At some point, some lottery winners might end up losing their shot anyway.

Under the Radar

Whistleblower complaint reveals deplorable conditions at child migrant shelters

Fort Bliss, a Texas military base that the Biden administration has been using as a temporary influx shelter for migrant children who arrive at the border without their parents, has been the subject of numerous whistleblower complaints since it began housing minors earlier this year. The latest complaint alleges that migrant children bathed in water so hot that they burned themselves, were given “skin lightening” motion that burned their skin instead of moisturizer, had their blood drawn without being told why, and were repeatedly threatened with deportation, BuzzFeed News reports.

Troublingly, the whistleblower said that many children had not seen case managers and thus had not begun the process of being released with their sponsors in the U.S. Minors who cross into the U.S. without their parents or legal guardians are put in shelters overseen by the Office of Refugee Resettlement, an agency within the Department of Health and Human Services, until they can be reunited with their relatives in the U.S. Caseworkers are supposed to identify children’s sponsors so they can be released as expeditiously as possible.

The federal employee who filed the complaint reportedly volunteered at Fort Bliss and two other emergency influx shelters for migrant children in Texas and Pennsylvania. At the Pennsylvania shelter, the whistleblower reportedly learned that children housed there were given inedible food and often developed gastrointestinal issues, as well as lice. The whistleblower said that a floor of the facility that had been set aside for children who had COVID was understaffed and had a gas leak.