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Siskind Summary: Gomez v. Trump – The Preliminary Injunction Order
By Greg Siskind (gsiskind@visalaw.com)
I. Background
This is a summary of the Memorandum and Order of Judge Amit Mehta in the above-listed case
as well as four other cases consolidated with it. One of those cases is Aker v. Trump, a case that
Siskind Susser is co-counsel on sought relief for Diversity Visa (“DV”) applicants. The beginning
of the memorandum discusses the circumstances that led to the case – the issuance of the two
proclamations in April and June by President Trump. The judge first summarizes the claims of
the 1,076 plaintiffs in the five cases. The claims all challenge the validity of the Proclamations
on various statutory and constitutional grounds and they all assert the suspension of visas
violates the Administrative Procedure Act (the “APA”) Also, the DV-2020 plaintiffs separately
raise the harm of losing out on their opportunity for a green card if their visas are not issued by
September 30, 2020 and claim the State Department failing to issue the visas is arbitrary.
The court granted the motions in part and denied in part. The court rejected the statutory and
constitutional challenges to the Proclamations but held the failure to review and adjudicate the
DV claims exceeds statutory authority and is arbitrary and capricious. The DV plaintiffs have
been held to meet the requirements for injunction relief while the non-DV plaintiffs have not.
The plaintiffs have also sought class certification in various subclasses. The court denied
without prejudice the DV class certification and deferred the class certification with respect to
the other four putative subclasses.
The judge then goes on to review the visa systemand the various visa categories covered in
the two bans. He also notes that that the State Department has interpreted the Proclamations
to suspend not only entry but also the issuance of visas in categories covered under the
Proclamations and visas are only to be issued to those the post believes meet an exception to
the Proclamations, “including the national interest exception (NIE), and that constitute a
mission-critical category.” While all posts were barred from issuing visas to non-critical people,
beginning in July visa processing resumed. Still, those subject to the 4/22 and 6/22 were not
permitted to receive visas without an NIE. DV applicants are “double doomed” because they
are not being treated as mission critical and are also barred under the “no-visa policy.”
The judge next goes on to summarize the five underlying cases. Three of the cases –
Mohammed, Fonjong and Aker – cover DV plaintiffs exclusively. Panda v. Pompeo covers H-1B
applicants and Gomez covers all affected categories, including DV applicants.
II. Legal Standard
The court begins by reciting the four requirements for injunctive relief:

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1. The plaintiff is likely to succeed on the merits;
2. The plaintiff is likely to suffer irreparable harm in the absence of preliminary relief;
3. The balance of equities tips in the plaintiff’s favor; and
4. An injunction is in the public interest.
Where there is a government defendant, the last two factors merge.
III. Likelihood of Success on the Merits
The government argued three impediments to the plaintiffs’ claims: lack of standing, consular
non-reviewability bars review of their claims, and they lack a cause of action.
A. Threshold Justiciability Questions
1. Standing
To establish standing, the plaintiff must show 1) she has suffered a concrete and particularized
injury 2) that is fairly traceable to the challenged action of the defendant and 3) that is likely to
be redressed by a favorable decision. The government claims plaintiffs refer to emails in their
declarations but didn’t include the emails in their filings. The court thought otherwise and
found the plaintiffs have supplied “specific facts” to establish a likelihood of standing. The judge
specifically discusses one plaintiff in the Gomez case – Aya Nakamura, a Japanese national – to
illustrate. Regarding causation, the judge again uses Nakamura to illustrate and finds that the
Proclamation is the primary cause of not getting the visa (also noting that the government did
not dispute that ground). Regarding redressability, the plaintiffs don’t need to show that they
would get their visas, but instead just need to show that their interest could be better
protected. The court used Nakamura again to address the government’s argument that
consulate closures would mean a DV visa would be unlikely to get issued. Tokyo, however, is
open and now processing immigrant visas. And the government’s argument that Nakamura
hasn’t proven she will get a visas. But there are no reasons asserted why a consular officer
might deny a visa. Therefore, the Gomez plaintiffs have met their burden. The court found that
the Mohammed, Fonjong and Aker cases all met their burdens as well.
2. Consular Non-Reviewability
This is a doctrine based on the principle of international law that nation states have the
inherent right to exclude or admit aliens and this is entrusted to the political branches of
government so as to be largely immune from judicial interference. The court notes that not
every legal challenge touching on admission of foreign national is foreclosed by consular
nonreviewability. Challenging inaction as opposed to a negative decision, for example, is
acceptable. And that’s what’s being challenged here.

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3. Cause of Action
The government says these cases all rest on the APA and the President is not subject to the
APA. The judge responded by noting that all of the plaintiffs’ claims do not arise under the APA.
The Gomez, Aker, and Panda plaintiffs all advance causes of action that assert the
Proclamations exceed the scope of the President’s congressionally granted authority which can
either be construed as ultra vires (outside the scope of a statute) claims or a cause of action
under the Immigration and Nationality Act. And it is not true that the President can’t be
challenged under the APA.
B. Challenges to Proclamations 10014 and 10052
The court first looks at the Gomez and Aker claims that 1) the Proclamations are ultra vires
because they do not satisfy the statutory prerequisites for suspension of entry under INA 212(f)
and 2) the President’s issuance of the Proclamations violate the Take Care Clause the the Due
Process Clause and deny equal protection under the law.
1. Ultra Vires Presidential Action
The judge recites 212(f) and notes that the case must be analyzed first under the 2018 Supreme
Court decision of Trump v Hawaii which upheld the “Muslim Ban”. The Supreme Court held in
that case that the President had broad discretion to suspend the entry of aliens to the US and
the statute “exudes deference” to the President in every clause. The President only needs to
find that the entry would be detrimental to the interests of the United States. The plaintiffs in
Hawaii argued that the President’s “finding” was not sufficiently detailed to enable judicial
review, but the Supreme Court held that it was detailed enough.
The plaintiffs in this case argued that the President must supply a rational justification and
conduct some rational investigation and that the facts simply show the opposite regarding the
impact of immigrants on the US jobs market. However, the judge found that the demand for a
“rational justification” and a “rational investigation” far exceeds what the court required.
The court also rejected the claim that the standard is not the same when a domestic policy is
the justification for the use of 212(f). The statute doesn’t make that distinction and excluding
aliens is inherent in the executive power to control foreign affairs. And the court is not in a
position to judge the wisdom of the President’s decision to address changed economic
circumstances.
The court addressed the 9th Circuit case Doe #1 v. Trump which holds that economic reasons
don’t get the same level of deference and simply says it disagrees with that court’s analysis.
The court also found that the President’s recitation of unemployment statistics was sufficient.
The President doesn’t need to be right or wise in drawing his conclusions. And while limiting

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review by a court of this may not be smart, Congress needs has written the law broadly (and
can presumably change it).
2. Separation of Powers
The plaintiffs argued that the Proclamations are invalid because they violate foundational
separation-of-powers principles and Congress has already carefully prescribed the
requirements for foreign nationals who seek to enter the US. The Supreme Court in Trump v.
Hawaii stated that 212(f) does not allow the President to expressly override particular
provisions of the INA.
The court held that while the Proclamations restrict the entry of various immigrant and
nonimmigrant visa classification, they do not expressly override any of them. Those categories
are not abolished, and full admission will presumably resume when the labor market recovers.
Plus, there are now a variety of exceptions.
3. Unconstitutional Delegation of Legislative Authority
The plaintiffs made a constitutional challenged to INA Section 212(f) by arguing that Congress
doesn’t have the authority to delegate authority so broadly to the President. The Hawaii case is
distinguishable because Congress can delegate more broadly in the sphere of international
affairs and national security. The court disagreed finding that the text of 212(f) is clear and that
there have only been two cases in history where a delegation was invalidated. The court found
the plaintiffs failed because it hasn’t shown that Congress failed to supply an intelligible
principle to guide the President’s use of discretion.
4. Remaining Constitutional Claims
Regarding the Take Care Clause, the court is not considering it because it’s duplicative of the
ABA arbitrary-and-capricious claimwhich the plaintiffs have won on.
Regarding the Due Process Clause, the plaintiffs have not invoked a constitutional framework to
support the claimand instead argue that failing to comply with the APA violates the due
process rights of the plaintiffs. The lack of an ability to comment is a key part of this argument.
The court found no case to support this notion of Due Process and the Aker lawyers’ later
arguments in the reply brief about due process protections for lawful permanent resident
spouses comes too late.
Regarding the equal protection arguments, the court found that the 5th Amendment
protections don’t apply to people outside the US and with regard to the three plaintiffs in the
Aker case who are in the US, there is a “plausible reason” to differentiate because the entry of
people to the US to enter the labor market is the basis of the Proclamation and those in the US
are logically excluded.

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Finally, the court rejected the plaintiffs animus argument – that Trump’s preexisting animus
toward the DV program makes the Proclamation unconstitutional. The judge agreed that Trump
is indeed hostile, but the Hawaii case’s rejection of a similar challenge based on purposed
religious animus failed, so this should as well.
C. Challenges to the Implementation of Proclamations 10014 and 10052
This section addresses the various APA and Mandamus Act challenges. The first challenge is to
the “No-Visa Policy” as being in excess of the government’s statutory authority and it usurps
the role of consular officers. Second, the policy is arbitrary and capricious because it lacks any
reasoned explanation, fails to consider reliance interests and fails to consider important aspects
of the problem. Third, the government failed to undergo notice-and-comment rulemaking.
Fourth, the government has unreasonably delayed adjudicating DV-2020 visa applications. And
fifth, the decision not to treat DV applicants as “mission critical” or “emergency” cases violates
the APA.
1. No-Visa Policy – Not in Accordance with Law
The argument boils down to the Proclamations not speaking to visa issuance and 212(f) also not
speaking to visa issuance. The government responded by saying there is no final agency action
and DOS’ refusal to process non-exempt covered visas is lawful because INA 221(g) prohibits
consular officers from issuing visas to persons declared ineligible for visas under 212(f).
The court noted that 212(f) only speaks to entries. And 221(g) only says a consular officer
should deny a visa if a person appears ineligible for a visa. It does not speak to people ineligible
to enter. And those people deemed ineligible to receive a visa under 221(g) refer to 212(a) and
not 212(f).
The court also said the Supreme Court in the Hawaii case didn’t rule on the issue of visas – just
on entry. The court also said it was unpersuaded by the Defendants’ argument that interpreting
the INA to allow the issuance of visas to person who might be ineligible to enter the country
under a 212(f) proclamation would result in “administrative confusion.” Congress may have
intended this since an entry ban may only be for a few weeks or months and a visa can be valid
for years.
There is no final agency action issue once it’s clear that there is no bar on issuing visas. The
order to stop issuing visas is a final action. The government’s argument that this is consistent
with 221(g) fails. “Because Defendants have not identified any statutory authority that would
permit the suspension of this ordinary process, the court concludes that Plaintiffs are likely to
succeed on the merits of their claimthat Defendants’ No-Visa Policy is “not in accordance with
law” and “in excess of statutory . . . authority.””

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2. No-Visa Policy – Arbitrary and Capricious
The court agreed that the government offered no rational explanation for the No-Visa policy
except its incorrect assumption that this was required by law. Agency action that stands on a
faulty legal premise is arbitrary and capricious.
3. No-Visa Policy – Notice and Comment Rulemaking
The Aker plaintiffs argue that the policy violates the APA because it didn’t have a notice and
comment process. The government said it was at most an interpretive rule and not subject to
the same requirements. Given this is not an automatic consequence of the Proclamations and
it’s changing the law by suspending visa processing, it’s a legislative rule. The court skips this,
however, because it’s unnecessary and because the court would need additional information
from the government.
4. Unreasonable Delay of Processing DV-2020 Visa Applications
The court agrees that the government has unreasonably delated processing of DV-2020 visas.
The court looked at six factors cited in the TRAC case:
(1) the time agencies take to make decisions must be governed by a rule of reason; (2)
where Congress has provided a timetable or other indication of the speed with which it
expects the agency to proceed in the enabling statute, that statutory scheme may
supply content for this rule of reason; (3) delays that might be reasonable in the sphere
of economic regulation are less tolerable when human health and welfare are at stake;
(4) the court should consider the effect of expediting delayed action on agency activities
of a higher or competing priority; (5) the court should also take into account the nature
and extent of the interests prejudiced by delay; and (6) the court need not find any
impropriety lurking behind agency lassitude in order to hold that agency action is
‘unreasonably delayed.’
Regarding the first two factors, the INA provides a clear indication of speed with respect to DV
selectees – the unyielding deadline of September 30th. And a reasonable deadline is counted in
weeks or months, not years. “Surely a delay that results in the permanent loss of a statutory
benefit is not reasonable.” The government didn’t dispute that the third and fifth factors favor
a finding of unreasonable delay. The fourth factor is a closer call but ultimately doesn’t militate
against a finding of unreasonable delay especially since the government’s claimthat it’s a waste
and they are ineligible for visas has been contradicted.
The judge noted he was sensitive to the difficulties presented to consulates by the pandemic,
but indicated that there was no reason to support not making these cases “mission critical.”
And consulates have been reopening for two months, but DV cases are still considered low
priority. There may be some consulates incapable of operating, but that doesn’t justify a

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worldwide ban. Finally, while the government cites the INA’s policy of a 30-day timeframe for K-
1s and a 60-day timeframe for all other family-preference cases and the plaintiffs shouldn’t
jump the line, no evidence is provided suggesting the government is incapable of adjudicating
in the required time period. The court simply notes it has enough reasons and skips factor six.
5. Exclusion of DV-2020 Visa Applications from Mission Critical Processing
The 4/22 and 6/22 aren’t the only obstacle for DV plaintiffs. The COVID shutdowns are as well
and the DV cases have been given the lowest priority. The court agrees that excluding DV cases
from the “mission critical” list was arbitrary and capricious” because no explanation has been
offered. The fact that this policy was only revealed in discovery after the 8/7 conference also
weighed on the judge and plaintiffs acted promptly based on the information.
IV. Remaining Factors Governing Preliminary Relief
A. DV-2020 Plaintiffs
1. Irreparable Harm
The DV Plaintiffs have shown irreparable harm absent injunctive relief. The government doesn’t
contest this. “That was a smart choice.”
2. Balance of Equities and Public Interest
The plaintiffs meet the final two factors of the requirements for injunctive relief. “There is
generally no public interest in the perpetuation of unlawful agency action.”
The public interest is served by compliance with the APA.” The government argued that it
would threaten the health of consular officers. But plaintiffs are not asking the government to
abandon its “Diplomacy Strong” operating procedures.
B. Gomez Non-DV Plaintiffs
The court rules the other way for the non-DV plaintiffs because there is no established causal
link between the injunction sought and the alleged injury. Because of the ban on entry, granting
relief won’t put them in a better position since they remain eligible after the proclamation is
lifted. “The public interest factor also does not support these Plaintiffs. Issuing injunctive relief
that could be construed to mean that the State Department must issue visas to people who
have no immediate prospect for entering the country could create substantial havoc and
confusion.”

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V. Remedy and Class Certification for the DV-2020 Plaintiffs
A. Scope of Relief
The government asserts that injunctive relief must be “sharply limited” and tailored to the
injury asserted by the plaintiffs.” The DC Circuit precedent is that when a court decides agency
rules are unlawful, the ordinary result is that the rules are vacated. The court has the power to
issue all necessary and appropriate process to compel agency action when needed to preserve
status or rights pending conclusion of the action.
An important equity here is the country’s strong interest in the uniform application of
immigration law and policy. Were the court to limit relief to the DV-2020 plaintiffs only and not
the 1000s of other DV-2020 applicants whose applications were also suspended, 1000s of
individual lawsuits would likely follow and potentially disparate outcomes of those cases would
result in widespread confusion.
B. Class Certification
The court finds it need not rule on the motions for class certification because all DV-2020
applicants will benefit from the relief of the court.
Vi. Conclusion and Order
Reciting that the challenge to the proclamations fails, but the challenge to the no-visa policy
wins. The court orders
1. The no-visa policy is stayed as it applies to DV-2020 selectees and derivatives.
2. The government shall undertake good-faith efforts to process by 9/30
3. The government may not use the COVID guidance to slow cases down because they’re
not mission critical or emergency
4. The court won’t give an extension of the deadline as the plaintiffs have requested but
will have a hearing not later than 9/25 and will assess at that point.
5. The class motion for DV-2020 selectees is denied.
6. The class motion for the other classes is deferred
7. The motion to enjoin the two proclamations is denied.