[00:00:00] Speaker 01:
Case number twenty four five two six one and you go to at all appellants United States Department of State and Mark Rubio, the Secretary of State, Miss Glazer for the appellants and Miss also bird for the appellees.

[00:00:15] Speaker 03:
I only see one person seated.

[00:00:18] Speaker 03:
Oh, I'm sorry.

[00:00:18] Speaker 03:
This is the one that's going to be remote.

[00:00:21] Speaker 03:
Thank you so much.

[00:00:21] Speaker 03:
Okay, we can proceed.

[00:00:25] Speaker 00:
May it please the court.

[00:00:26] Speaker 00:
Good morning, Your Honours.

[00:00:28] Speaker 00:
Nicolette Glazer appearing on behalf of the plaintiff appellants in this matter.

[00:00:34] Speaker 00:
I have reserved three minutes of my time for a bottle if I may.

[00:00:39] Speaker 00:
Your Honour.

[00:00:41] Speaker 00:
Your Honours, there are two issues before this court in this second time before this court for this case, and that is whether the appellant's non-good luck claims remain viable and whether the court can provide any relief.

[00:01:00] Speaker 00:
We respectfully submit that the answer to both is yes.

[00:01:04] Speaker 00:
However, following the remand in Jochi 2, the district court found that because of the intervening decision of good luck, a disjunction of the litigation, the issue of merits and standing merged.

[00:01:22] Speaker 00:
And the court, denying the opportunity for plaintiffs to amend, supplement, and clarify their non-good luck claims, proceeded to grant a stale motion to dismiss and found that because it is impossible for the court to grant any relief, the propellant lacks standing.

[00:01:43] Speaker 00:
Your Honors, we submit that the district court decision was erroneous as a matter of law, fact, and procedure.

[00:01:51] Speaker 03:
Are they still pending any DS-260 applications?

[00:01:55] Speaker 00:
Yes, Your Honor, they are.

[00:01:57] Speaker 00:
The DS-260 are the immigrant visa petitions that were filed by each of these plaintiffs.

[00:02:04] Speaker 00:
Each was filed documentally qualified.

[00:02:07] Speaker 00:
They have been accepted by the Department of State, obviously.

[00:02:11] Speaker 00:
Some of them even paid the filing fees that were required.

[00:02:15] Speaker 00:
If I can explain perhaps one of the issues that we raised and that goes to the issue of redressability is the importance of the practical real-life magnitude importance of those pending DS-260 applications.

[00:02:35] Speaker 00:
Your Honor, if any of these plaintiffs is to appear for a non-immigrant visa interview at a consulate, this pending DS-260 will pretty much automatically result in a denial of the non-immigrant visa application because of the doctoring of preconceived immigrant intent.

[00:02:58] Speaker 00:
And that is as INA section 214b, which says that an individual

[00:03:04] Speaker 00:
non-immigrant has to show that they are not intending to immigrate in order to receive such a non-immigrant visa.

[00:03:13] Speaker 00:
Well, obviously a DS 260 still pending will be a clear cut decision for a consular officer or even for a CBP inspector to say you are an intending immigrant.

[00:03:26] Speaker 00:
But more to the problem is that how would an applicant be able to respond to a question of what is the status of their DS 260?

[00:03:34] Speaker 00:
If they are to say that the application is denied, well that will be a misrepresentation.

[00:03:41] Speaker 00:
If they are to say that the application is still pending, obviously it raises again the issue of the immigrant intent.

[00:03:49] Speaker 05:
So why don't they simply say what happened, that their year ran out and they never got an adjudication?

[00:03:54] Speaker 00:
Well, unfortunately, many of these people have a very limited English sufficiencies.

[00:04:00] Speaker 00:
And being at, let's say, at the port of entry with a CBP inspector having to decide on a spotted miscibility or a consular officer, it's difficult for this plaintiff to be able to explain.

[00:04:13] Speaker 00:
More than important, the DS-260 is the same application an applicant will file for a DV application for a family-based immigrant visa, employment-based visa.

[00:04:23] Speaker 00:
The consular officer sometimes will not have access to all the documents, let's say, or the CVP inspector may not have.

[00:04:30] Speaker 00:
So it's difficult to put that pressure on an applicant.

[00:04:34] Speaker 00:
And I will point the court to the recent decision of the Supreme Court in Patel.

[00:04:39] Speaker 00:
where the court observed the draconian consequences that come to an immigrant in answering a question, even if that question is made in a mistake or a confusion of not.

[00:04:52] Speaker 00:
The consequences for a misrepresentation are drastic.

[00:04:56] Speaker 00:
In the context of inadmissibility, under Section 212C, if an adjudicator finds that there is a misrepresentation of facts,

[00:05:06] Speaker 00:
which lead with respect to benefit, which that will consider, then there's a lifetime bar.

[00:05:13] Speaker 00:
A person will never be able to obtain any immigration benefits.

[00:05:17] Speaker 00:
So this pending DS 260 are not some mundane issue as the police suggest, but it's a real life impediment that was brought on this plaintiff

[00:05:31] Speaker 00:
no fault of them.

[00:05:32] Speaker 00:
We're not asking for the officers to elaborate or explain.

[00:05:37] Speaker 00:
They could simply post a notice that all DV applications for DV 2021 are considered denied for lack of eligibility or the passage of time.

[00:05:49] Speaker 00:
But that will bring a conclusion to a decision making.

[00:05:53] Speaker 00:
And that will both terminate those pending DS-260 in all the immigration systems and also will provide a clear decision of how an applicant can respond.

[00:06:05] Speaker 00:
And I believe that part of redressability is clear.

[00:06:08] Speaker 00:
Now, the court below could have decided on a merit that, by the way, discretion or if it's a matter of merit,

[00:06:16] Speaker 00:
The court will not grant either a declaration or any form of an injunction or prohibitive injunction, a mandatory injunction or anything.

[00:06:25] Speaker 00:
But that was not what this district court did.

[00:06:29] Speaker 00:
Rather, the district court found that because of the good luck case, he cannot give any redress.

[00:06:37] Speaker 00:
But the good luck case didn't address these issues and didn't even address the claims that are remaining in this particular case.

[00:06:47] Speaker 00:
Rather, the good luck decision simply addressed the authority of a district court

[00:06:54] Speaker 00:
what they can or cannot do with respect to visas.

[00:06:57] Speaker 00:
It did not say anything as to what an agency could do.

[00:07:01] Speaker 00:
And that is a big decision.

[00:07:03] Speaker 00:
And I will point the court to a line of cases from the Supreme Court, such as Brock v. P. County, Bernhardt, that have said that even after the passage of time, if an agency does something, so long as the statute has not

[00:07:19] Speaker 00:
put in consequences for the act, then the agency can do something even if the passage of time has passed or even in violation of 1154.

[00:07:31] Speaker 00:
My time, I think, has expired.

[00:07:36] Speaker 03:
Any questions?

[00:07:38] Speaker 03:
No.

[00:07:38] Speaker 03:
Okay, thank you.

[00:07:40] Speaker 03:
We'll hear from you on rebuttal.

[00:07:57] Speaker 02:
Good morning, Your Honors, and may it please the court, Kara Alsterberg, on behalf of the United States.

[00:08:02] Speaker 02:
This court conclusively resolved on the merits a dispositive question about what happens to diversity visas at the end of the fiscal year, which is that they expire.

[00:08:13] Speaker 02:
and that there is nothing that this court or district court could do to extend that deadline beyond the fiscal year end.

[00:08:19] Speaker 02:
Acknowledging good luck in Joshi, too, appellants seem to be aware that there is nothing left for them, that there is no remedy available with regards to their diversity visa 2021 applications.

[00:08:32] Speaker 03:
Well, she was indicating that they would need a response of some sort.

[00:08:38] Speaker 03:
And so are you suggesting that the response is that they've expired?

[00:08:42] Speaker 02:
Yes.

[00:08:43] Speaker 02:
Okay.

[00:08:43] Speaker 02:
And that the question about the form DS two sixties is a bit of a red herring.

[00:08:48] Speaker 02:
The DS two sixties are a part of what would make a diversity visa application but that application isn't formal until the interview happens.

[00:08:58] Speaker 02:
None of these plaintiff appellants had an interview.

[00:09:00] Speaker 02:
Therefore, there was never actually a formal diversity visa application made and to the extent as the district court found that we're the state

[00:09:11] Speaker 02:
adjudicate DS-260s from a fiscal year that expired four years ago only to deny them all seems futile given that we know that there's no remedy to address at that point.

[00:09:24] Speaker 03:
Curiously, was the $55,000 cap ever met with respect to diversity visas?

[00:09:29] Speaker 02:
So for 2021, it was $18,000.

[00:09:34] Speaker 02:
in 2022, 55, 2023, 55, and 2024, 55.

[00:09:38] Speaker 05:
If one of the panelists were to file a request for a tourist visa, would the existence of the prior application show up in the CO's records?

[00:09:58] Speaker 02:
This hypothetical, we don't have evidence of that actually happening in this case.

[00:10:03] Speaker 02:
Even appellants just now indicated that if they seek such a thing, that it might be detrimental.

[00:10:09] Speaker 05:
Well, one or more of them has relatives in the US.

[00:10:11] Speaker 05:
So they're likely to be seeking of at least an immigrant visa, I mean a tourist visa.

[00:10:17] Speaker 02:
So to get a non-immigrant visa, that individual would still have to prove to the consular officer that they're entitled to such a non-immigrant visa.

[00:10:29] Speaker 02:
The Department of State clarified in a brief footnote that in this hypothetical situation, that individual to the extent that pending DS-260 from something four years ago was something that showed up, that individual would be able to clarify that they were one of the many individuals that was seeking an opportunity to be selected in the diversity visa lottery.

[00:10:49] Speaker 05:
How many people are in that category?

[00:10:51] Speaker 02:
Well, so millions of people apply.

[00:10:53] Speaker 02:
It's like a lottery and a lottery, if you will.

[00:10:55] Speaker 02:
So millions of people apply to be even selected to be part of the Doris DeVisa lottery.

[00:11:00] Speaker 02:
And then the State Department always over-selects the number of people that could even be at the 55,000 cap because it recognizes that there might be different impacts.

[00:11:09] Speaker 02:
They're trying to hit that number, so they over-select.

[00:11:12] Speaker 02:
So for fiscal year 2021,

[00:11:15] Speaker 02:
I believe, including beneficiaries, it was 133,000 people vying for one of the 55,000 available.

[00:11:21] Speaker 02:
And then given the context of the pandemic and the other issues with consulates worldwide, that number was, as I said, only 18,000.

[00:11:29] Speaker 05:
It must be common knowledge that there are lots of applications that are counted within the counselor service, that there are lots of applications that never get adjudicated.

[00:11:39] Speaker 02:
Yes.

[00:11:40] Speaker 05:
And indeed, if you look at a year when there was COVID, even more so.

[00:11:45] Speaker 02:
Yes, and there's also a point here with the difference between the DS-260 form and the formal diversity visa application.

[00:11:52] Speaker 02:
The application only happens at that interview.

[00:11:56] Speaker 02:
If the interview doesn't happen, there really hasn't been.

[00:11:58] Speaker 05:
But is the filing of the form a matter of record that shows up years later when someone, or that could show up years later?

[00:12:05] Speaker 02:
It could, but from my understanding, it does not appear that that's something that's lingering, that there's not a formal application on file.

[00:12:13] Speaker 02:
perhaps just a form DS-260 that was part of what was going to make an individual documentally qualified to even get to that next step of the interview.

[00:12:22] Speaker 03:
And so when the application expires, that's over.

[00:12:25] Speaker 03:
If you want to apply again, you just start the process over in the next year?

[00:12:29] Speaker 02:
Yes, and there's nothing to stop an individual from trying to enter the diversity visa lottery over and over again.

[00:12:34] Speaker 03:
Okay, that's what I'm going to ask.

[00:12:37] Speaker 03:
The fact that you've applied and even failed, you still can have the opportunity to apply again later?

[00:12:43] Speaker 02:
Well, if you failed for a dispositive reason, like you went to that interview and you were found to not be admissible into the United States for some crime, yes.

[00:12:52] Speaker 03:
So expired is a non adjudicative term?

[00:12:57] Speaker 03:
Yes.

[00:12:57] Speaker 02:
Okay.

[00:12:58] Speaker 02:
If you just happen to be one of the many over selectees, if you will, one of the 133,000 vying for the 55,000 and you just never, your number never came up, you never finished, for whatever reason that it didn't follow through, you can apply again.

[00:13:12] Speaker 03:
Okay, and what about the appellant's challenge to just kind of some State Department conduct of intentional delay in that not allowing them to be in the process?

[00:13:22] Speaker 03:
And why wouldn't this court do something about that?

[00:13:26] Speaker 02:
And I think for the same reason that the Goodluck and Joshi Court found remedy to be dispositive, that still is dispositive.

[00:13:34] Speaker 02:
There has been no indication of bad faith or feet dragging.

[00:13:37] Speaker 02:
That was one of the many questions on appeal for the Goodluck case, was the prioritization guidance lawful?

[00:13:45] Speaker 02:
Was there any undue delay?

[00:13:47] Speaker 02:
The court at that juncture, aware of all of the many issues before it, still just focused in on the remedy factor.

[00:13:54] Speaker 02:
That remedy piece is still very much dispositive.

[00:13:57] Speaker 02:
There is no live claim or controversy before this court anymore.

[00:14:01] Speaker 02:
All of those policies are long since rescinded.

[00:14:04] Speaker 02:
Some of them were even rescinded back when plaintiff appellants in this case even filed their amended complaint.

[00:14:10] Speaker 02:
And there's no indication in terms of a voluntary cessation question.

[00:14:13] Speaker 02:
That was a once-in-a-lifetime pandemic.

[00:14:16] Speaker 03:
So as far as you're concerned, we're back to normal procedures?

[00:14:19] Speaker 02:
Yes.

[00:14:20] Speaker 03:
No penning, executive order, or anything ceasing this process?

[00:14:24] Speaker 02:
Well, that I'm unaware of.

[00:14:25] Speaker 02:
But yeah, based on the historical data, it's clear that things have been running.

[00:14:33] Speaker 02:
State departments hitting 55,000, and there's nothing stopping them.

[00:14:40] Speaker 03:
Other questions?

[00:14:42] Speaker 03:
No.

[00:14:43] Speaker 03:
Okay.

[00:14:43] Speaker 03:
Thank you.

[00:14:46] Speaker 03:
All right.

[00:14:46] Speaker 03:
I believe you have reserved three minutes for the vote, so we're happy to hear from you again.

[00:14:53] Speaker 00:
Yes, Your Honor.

[00:14:54] Speaker 00:
I would address two aspects of what my very esteemed colleague addressed with the court.

[00:15:01] Speaker 00:
First, with the DS-260.

[00:15:04] Speaker 00:
I completely disagree with counsel.

[00:15:06] Speaker 00:
The form DS-260

[00:15:08] Speaker 00:
is filed when the individual, it's online, it's completed, it is signed, it's accepted by the electronic system of the Department of State, and it stays there until it is adjudicated.

[00:15:21] Speaker 00:
Even after it is adjudicated, it remains to be a record.

[00:15:25] Speaker 00:
I can tell you, Your Honor, there are visa applications that applicants had filed 30 years ago

[00:15:31] Speaker 00:
that will show up, it will be considered, and sometimes they are impediment to eligibility.

[00:15:38] Speaker 00:
So what council was observing is whether the consular office has formally adjudicated the visa application, which happens when the individual appears at the interview,

[00:15:51] Speaker 00:
in person and then swears against and receive a decision.

[00:15:55] Speaker 00:
That did not happen, but that does not change in any way the fact that the DS 260 applications are still pending and active in that system.

[00:16:05] Speaker 00:
Now, the other aspect is contrary to my esteemed colleague, currently there is a visa ban.

[00:16:12] Speaker 03:
Why don't you agree with her term that they actually get expired?

[00:16:16] Speaker 00:
Well, an application that is in the system does not expire.

[00:16:22] Speaker 00:
That's not something that I... You're applying for a particular fiscal year.

[00:16:29] Speaker 00:
Correct.

[00:16:29] Speaker 00:
I'm not saying that the fiscal year has not expired.

[00:16:32] Speaker 00:
I'm saying that the record of an application that has stated an immigrant intent remains in the Department of State visa.

[00:16:41] Speaker 00:
So that stated immigrant intent is still there and based on Section 214B,

[00:16:48] Speaker 00:
It could impede, and I will say it absolutely will impede the ability of anybody to show non-immigrant intent, which is basically to say, I don't have a preconceived intent to be an immigrant with a pending in the system, whether it is administratively closed, which is basically off the docket, but continue to be pending.

[00:17:10] Speaker 00:
It's still pending.

[00:17:12] Speaker 00:
It still shows that this individual has filed an application for an immigrant visa and that application has not been completed.

[00:17:22] Speaker 00:
It goes to, again, a burden that the INA has put for non-immigrants that is extremely high.

[00:17:30] Speaker 00:
And that is, I will say, the vast majority of the denial of all non-immigrant visa.

[00:17:35] Speaker 00:
It is you have not

[00:17:37] Speaker 00:
shown that you do not intend to immigrate into the United States.

[00:17:41] Speaker 00:
Ergo, you cannot have a D visa or you cannot get a student visa.

[00:17:45] Speaker 00:
So that is the particular real life issue here.

[00:17:50] Speaker 00:
If they simply deny them or close them conclusively, then the applicants could proceed.

[00:17:58] Speaker 05:
You have about, I don't know, looks like 40 or more clients in this case.

[00:18:03] Speaker 05:
Has any of them applied for a non-immigrant visa since 2021?

[00:18:08] Speaker 00:
I believe we were concerned for them in applying because of that particular issue.

[00:18:13] Speaker 00:
Some of them have actual long-term visa also issued and they are concerned to use them because they're concerned that there will be question about that and potentially found to be inadmissible and their long-term B2 visa be canceled.

[00:18:30] Speaker 00:
So they have, and the advice of counsel have not taken those steps because of concern that they may end up with a denial that will be a significant issue for them back down the road.

[00:18:44] Speaker 03:
So let me hear from you explicitly what you believe this court can do.

[00:18:49] Speaker 03:
Are you asking us to direct an agency to do something particular or what is it that you're actually seeking?

[00:18:56] Speaker 00:
We're asking the court to remand for the district court to decide the issue on a merit.

[00:19:01] Speaker 00:
The government has filed a motion to dismiss on the pleading, so the district court will have to decide whether the complaint has met the Twombly Iqbal requirements.

[00:19:13] Speaker 00:
Now, the court can find that we have not met the plausibility requirement and deny it on the merits, but he didn't do that.

[00:19:19] Speaker 00:
So what we're asking the court is to remand for the district court to decide the defendant's motion to dismiss, which was a 12b6 motion, failure to state a claim.

[00:19:30] Speaker 00:
And then the court will decide.

[00:19:32] Speaker 00:
I think this is a factual issue, obviously.

[00:19:35] Speaker 00:
We will need to address the pendency of the application, what the particular applicants have done, what they intend to do.

[00:19:45] Speaker 00:
And then it becomes an issue to be decided by the court.

[00:19:48] Speaker 05:
Why isn't that relief barred by good luck?

[00:19:52] Speaker 00:
Good luck, Your Honors, only said what the court cannot do in preserving visas.

[00:19:58] Speaker 00:
And that's what, no, we are not asking.

[00:20:00] Speaker 00:
We're not asking the court to preserve a visa.

[00:20:02] Speaker 00:
We're not asking the court to issue a visa to this applicant.

[00:20:06] Speaker 00:
What we're asking is for the court to decide whether there is a bad faith, issued declaratory judgment, and issue a very simple order that is complete this D.C.

[00:20:18] Speaker 00:
260.

[00:20:18] Speaker 00:
whether you say that is denied or you put on a website that all DS60 who are not adjudicated by the end of the fiscal year are considered denied by lapse.

[00:20:31] Speaker 00:
A simple posting on their website will dispose of this issue and eliminate a barrier that the government has erected for these plaintiffs.

[00:20:39] Speaker 03:
But earlier, the United States indicated that they're using the term expired.

[00:20:45] Speaker 03:
You're asking for a denial, but a denial is an adjudication.

[00:20:50] Speaker 00:
Correct.

[00:20:50] Speaker 00:
It is an adjudication of an application.

[00:20:52] Speaker 00:
Good luck did not address anything about application.

[00:20:55] Speaker 00:
In fact, 1154 does not speak of adjudication.

[00:20:58] Speaker 00:
It speaks of the expiration of eligibility.

[00:21:01] Speaker 04:
Where is there anything that says the DS-260 is a battery that involves something that can be adjudicated?

[00:21:09] Speaker 00:
Well, Your Honor, the obligation stems from 1202B, as well as the regulation and asked to 5555A&E, which require the agency to issue a decision on a matter before them.

[00:21:29] Speaker 00:
I believe that is the source.

[00:21:31] Speaker 04:
I haven't been able to figure out why you think the DS-260

[00:21:36] Speaker 04:
involves something that can be adjudicated.

[00:21:38] Speaker 04:
It's a form.

[00:21:40] Speaker 04:
So what?

[00:21:41] Speaker 00:
It's an application.

[00:21:42] Speaker 00:
It's an application for a visa.

[00:21:44] Speaker 04:
There are lots of application forms that don't get processed in all kinds of agencies and businesses that disappear at the end of the process.

[00:21:52] Speaker 04:
The process is over with.

[00:21:53] Speaker 04:
That's what Goodluck said.

[00:21:54] Speaker 04:
It's over.

[00:21:56] Speaker 00:
Well, the fiscal year is over, but the application is not.

[00:22:00] Speaker 04:
The application for that year is over.

[00:22:04] Speaker 05:
This is what good luck says.

[00:22:06] Speaker 05:
The district court had no authority to order the State Department to keep processing applications.

[00:22:13] Speaker 00:
They don't have the authority.

[00:22:16] Speaker 00:
I believe the Goodluck case said the court cannot order the agency to do something.

[00:22:24] Speaker 00:
The question that was not raised is whether it can be told.

[00:22:28] Speaker 00:
And that is the Supreme Court decision in Riley v. Bondi, which specifically in the immigration context said everything that is not jurisdictional is subject to tolling.

[00:22:38] Speaker 00:
That was not addressed in Goodluck because it was not argued and it was not pleaded.

[00:22:44] Speaker 04:
So if we issue an order that says you'll get your relief, if we issue an order that's saying there's nothing we can do because the DS-260 does not involve a matter of adjudication, especially in situations covered by good luck and a discussion, that's it.

[00:22:59] Speaker 04:
You've got the relief you want.

[00:23:01] Speaker 04:
So no one can be harmed.

[00:23:04] Speaker 04:
There's a court order that's now sitting in the books that's saying there's nothing here that in any way impedes this person from doing something in the future.

[00:23:13] Speaker 00:
That will be a relief.

[00:23:14] Speaker 00:
Absolutely.

[00:23:14] Speaker 00:
That's not what the district court did not do that.

[00:23:18] Speaker 04:
It appears that you may get that from this court because that's I don't see how you have anything that can be adjudicated.

[00:23:26] Speaker 00:
Well, Your Honor, if that is a clarification, that would be a tremendous relief, not only to these plaintiffs, to the many people who have applications that are not adjudicated.

[00:23:35] Speaker 00:
There is probably 100,000 or more who potentially could be harmed.

[00:23:40] Speaker 00:
A decision of this court.

[00:23:41] Speaker 04:
So you're saying to us that would be relief enough for you?

[00:23:45] Speaker 00:
Well, it will be a relief for that particular aspect of the non-good luck claim that we've pleaded, yes.

[00:23:51] Speaker 04:
OK, thank you.

[00:23:54] Speaker 00:
Is there any other questions I can answer?

[00:23:56] Speaker 04:
No, thank you.

[00:23:57] Speaker 04:
Thank you very much.

[00:23:59] Speaker 00:
Thank you.

[00:23:59] Speaker 00:
Honors.

[00:24:02] Speaker 03:
And the case is submitted.