On November 4, 2019, Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia issued an opinion in E.B. v. U.S. Dep't of State, denying a motion by three aliens and their U.S.-based relatives to enjoin the so-called "Passport Rule" issued by the U.S. Department of State (DOS) during the spring. While it is welcome news that a district court judge actually denied an injunction in a case that challenged a Trump administration effort to improve the immigration system, that decision is all the more interesting because of what it reveals about the Diversity Visa (DV) lottery itself.
By way of background, as U.S. Citizenship and Immigration Services (USCIS) explains:
The Diversity Immigrant Visa Program (DV Program) makes up to 50,000 immigrant visas available annually, drawn from random selection among all entries to individuals who are from countries with low rates of immigration to the United States. The DV Program is administered by [DOS].
The Center for Immigration Studies has written extensively about problems with the lottery, not least of which is the susceptibility of the DV program to fraud. As my colleague Steven Camarota has made clear:
One of the things that makes the lottery so difficult to administer is that corruption and fraud are so widespread in the countries that send in the most applications for the lottery. The general prevalence of fraud in these countries is bad enough, but the lottery itself encourages fraud. It invites applications from almost anyone, especially those with no relatives or ties to an American institution, such as an employer in the United States who can at least vouch for the applicant.
On June 5, 2019, DOS promulgated the Passport Rule on an interim final basis. The purpose of the rule is "to require alien petitioners for the Diversity Visa Program to provide certain information from a valid, unexpired passport on the electronic entry form."
The reason DOS promulgated the Passport Rule was to reduce the sort of fraud that Camarota referred to:
The Department has historically encountered significant numbers of fraudulent entries for the DV Program each year, including entries submitted by criminal enterprises on behalf of individuals without their knowledge. Individuals or entities that submit unauthorized entries will often contact unwitting individuals whose identities were used on selected DV Program entries, inform them of the opportunity to apply for a diversity visa, and hold the entry information from the named petitioner in exchange for payment. Requiring that each entry form include a valid passport number at the time of the DV Program entry will make it more difficult for third parties to submit unauthorized entries, because third parties are less likely to have individuals' passport numbers. Entries submitted by unauthorized third parties using a duplicative passport number will also be easily identified and automatically disqualified.
The foreign national plaintiffs in E.B. who are abroad argued "they will be irreparably harmed because the regulation effectively precludes them from participating in this year's lottery" on the grounds that "they do not have a valid passport, nor can they obtain one in time." (It is not clear from the judge's opinion whether the U.S.-based relatives are aliens or not). As noted, the plaintiffs sought a preliminary injunction to bar enforcement of the Passport Rule, alleging "that obtaining a passport in time to participate in this year's lottery is both cost and time prohibitive."
The judge found that least one of the plaintiffs in that case (identified as "K.K.") was "substantially likely to show standing" because he "must now expend additional time and money merely to enter the lottery, even if he does not win it." Judge Kelly found, however, that the plaintiffs had failed to show the "irreparable harm" required for an injunction.
Specifically, the harm that the plaintiffs alleged was "the loss of the chance to apply for an immigrant visa, not the loss of the visa itself." The judge held on three different related bases that the plaintiffs had failed to show that the fact that they would miss the lottery this year would "subject them to irreparable harm."
Noting that "any registrant had about a 0.8% chance of being selected," Judge Kelly first held that "the loss of such a small chance is not sufficiently 'great' to warrant a preliminary injunction." In particular, he found that in FY 2018, "115,968 individuals were selected from 14,692,258 registrants."
Second, he held, the "greatness" of the injury alleged was also "undermined by the lottery's annual repetition." Despite the fact that the president has proposed eliminating the lottery (as many have before him), the lottery is likely to be held next year, and into the foreseeable future. Judge Kelly found: "Plaintiffs thus are not losing their only chance at a diversity visa if they do not participate in the lottery this year."
Third, the judge held that on the record before him, there was a "lack of a direct connection between the alleged injury and the Passport Rule," a fact that weakened the plaintiff's case even more. He explained:
An irreparable injury must "directly result from the action which the movant seeks to enjoin." ... Applicant Plaintiffs allege that they cannot obtain a passport in time to enter the lottery because they either lack the money to do so or learned about the new requirement too late. But these obstacles, to the extent that they exist, do not "directly result" from the Passport Rule for irreparable harm purposes.
This is where the opinion gets interesting. He continued:
For example, Applicant Plaintiffs E.B. and K.K. assert that they "could manage to incur the substantial costs involved to obtain a passport with the assistance of family and friends." ... But they also allege that that assistance "is not available merely for [their] application for the Diversity Visa Program." ... In other words, their family and friends are, perhaps understandably, unwilling to help them pay for their passports unless they win the lottery. But for that reason, their inability to pay for a passport before winning the lottery does not "directly result" from the Passport Rule itself.
Put another way, two of the plaintiffs in that case who are foreign nationals are seeking to apply for the lottery to get a green card to come to the United States, but they don't even have the funds to purchase a passport without "the assistance of family and friends" (which is not forthcoming).
This raises the inevitable question of how those aliens believed that they would be able to support themselves in this country if they won without significant assistance — either from relatives or, more likely, from local and state governments and the federal government itself? That single finding encapsulates the most illogical aspect of the lottery itself: Through the lottery, the United States is basically inviting impoverished (and in all likelihood unskilled) people to come and live here permanently.
If an alien is a lawful permanent resident (LPR, that is, they have a green card) they are placed on a path to what is one of the most prized statuses in the world: U.S. citizenship. The very fact that more than 14 million foreign nationals register for the lottery demonstrates dispositively that such status is widely and universally desired. Given this, it would only be logical that the United States would grant that status only to those individuals who could (1) at least support themselves; and (2) grow the economy of the United States to improve the living conditions of all Americans, citizens and lawfully admitted aliens alike, if they were admitted as LPRs. Plainly, however, "logic" was not a factor in the consideration of the design of the DV lottery program.
To complete the analysis of the judge's opinion, he also found that the plaintiffs who did not learn about the Passport Rule until it was too late to apply for a passport have only themselves to blame, because that rule was published in the Federal Register on June 5, 2019. He stated:
None of the Applicant Plaintiffs' representations suggest that, had they started the process of obtaining passports when they had constructive notice of the rule in June, they would not have been able to secure them five months later, by November 5, 2019. This amounts to another reason why the Applicant Plaintiffs' harm from missing the lottery this year does not "directly result" from the Passport Rule itself.
Those complaints were not unlike similar ones that were raised by U.S. citizens and nationals when, in August 2006, a passport requirement was announced for air and sea travelers to the United States effective January 8, 2007, to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). IRPTA mandated DOS and DHS to develop a plan to require passports or other secure documents for all travel into the United States by citizens and others for whom such requirements had previously been waived under section 212(d)(4)(B) of the Immigration and Nationality Act (INA), in compliance with recommendations that had been made by the 9/11 Commission.
That decision supports the president's assertion that: "Eliminating the visa lottery system will take chance out of our immigration system, and help direct immigrant selection towards merit and skill." I have no doubt that Judge Kelly's findings will be ignored, as the president's pleas were. Congress should take notice, however.