Gomez v. Trump
| Decision Date | 23 June 2020 |
| Docket Number | Case No. 20-cv-01419 (APM) |
| Parties | DOMINGO ARREGUIN GOMEZ, et al., Plaintiffs, v. DONALD J. TRUMP, in his official capacity as President of the United States of America, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiffs in this action are United States citizens and lawful permanent residents whose children and grandchildren ("beneficiaries") were, at the time this litigation commenced, all "minors"—meaning unmarried children under the age of 21—seeking immigrant visas to enter this country. Each beneficiary has since turned or will turn 21 years old this month. Two have received their visas since Plaintiffs filed this action, and Plaintiffs concede that their individual claims relating to those beneficiaries' applications are now moot. As for the third beneficiary, W.Z.A., Plaintiffs fear that if he does not receive his visa and enter the country before his birthday on June 30, he will "age out" of his minor visa preference category.
What prompted Plaintiffs' filing of this suit is Presidential Proclamation 10014, Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak, 85 Fed. Reg. 23,441 (Apr. 22, 2020) ("Proclamation" or "Proclamation 10014"). Presidential Proclamation 10014 halts processing of certain categories of immigrant visas, including the beneficiary-based visas at issue in this case. Plaintiffs seek a temporary restraining order preventing Defendants from enforcing Proclamation 10014 against minor visa applicants who will turn 21 years old during the Proclamation's effective period. The minor visa applicants are sponsored by Plaintiffs and other similarly situated United States citizen and lawful permanent resident parents. Plaintiffs also request that this court certify a class of visa sponsors whose beneficiaries or derivative beneficiaries are subject to the Proclamation and will also age out while the Proclamation remains in effect. Because Plaintiffs have not shown that this action presents a justiciable case or controversy, the court denies Plaintiffs' motions.
On April 22, 2020, President Trump signed Presidential Proclamation 10014, which temporarily suspends the "entry into the United States" of certain classes of immigrants who did not already have a valid immigrant visa or travel document as of April 23, 2020, the effective date of the Proclamation. 85 Fed. Reg. at 23,442-43 §§ 1, 2(a), 5.
The Proclamation cites various justifications, rooted in economic harms caused by the COVID-19 pandemic, to justify temporarily suspending entry of new permanent residents. First among those reasons is protecting unemployed American workers against competition in the labor market from new permanent residents. See 85 Fed. Reg. at 23,441-42. The Proclamation states that "we must be mindful of the impact of foreign workers on the United States labor market, particularly in an environment of high domestic unemployment and depressed demand for labor," and highlights the need to protect in particular "workers at the margin between employment and unemployment, who are typically 'last in' during an economic expansion and 'first out' during an economic contraction." Id. at 23,441. The Proclamation also identifies an overburdened healthcare system as reason to halt inflow of new permanent residents: "[I]ntroducing additionalpermanent residents when our healthcare resources are limited puts strain on the finite limits of our healthcare system at a time when we need to prioritize Americans and the existing immigrant population." Id. at 23,442. Finally, the Proclamation cites the need to preserve State Department resources as a reason to put a pause on entry, "so that consular officers may continue to provide services to United States citizens abroad." Id. at 23,441.
For these reasons, the President suspended entry of specified classes of immigrants for an initial 60-day period starting April 23, 2020, though the suspension "may be continued as necessary." Id. at 23,443 §§ 4-5. As relevant here, the Proclamation temporarily suspends entry of most immigrants with family-based visas. See id at 23,442-43 § 2. The Proclamation provides an exception, however, for "any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees"—which the court will refer to as the "national interest exception." Id. at 23,443 § 2(b)(ix). The Secretaries of State and Homeland Security are tasked with implementing the Proclamation as it applies to visas and aliens, respectively. Id. at 23,443 § 3.
On June 22, 2020, the President issued a follow-up proclamation, which extends Proclamation 10014 through December 31, 2020, effective immediately. See Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak § 1 (June 22, 2020) ("Second Proclamation").1 The Second Proclamation also provides that, effective June 24, 2020, "[t]he Secretary of State and the Secretary of Homeland Security shall exercise the authority under" the national interest exception "of Proclamation 10014to exempt alien children who would as a result of . . . the suspension in section 1 of Proclamation 10014 age out of eligibility for a visa."2 Id. §§ 4(a)(i), 7.
The family-based visa program allows United States citizens and permanent residents to "sponsor" non-citizen family members, or "beneficiaries," for immigrant visas. See 8 U.S.C. §§ 1151, 1153(a). The sponsor may also petition for visas for certain relatives ("derivatives") of the principal beneficiary. Id. §§ 1153(d), 1154(a). A family member seeking to sponsor a beneficiary must file a petition with the United States Citizenship and Immigration Services ("USCIS"). See AUSTIN T. FRAGOMEN, JR. ET AL., IMMIGRATION PROCEDURES HANDBOOK § 12:2 (June 2020) [hereinafter HANDBOOK]; Pls.' Emergency Mot. for Temporary Restraining Order, ECF No. 21 , at 3. Once the petition is approved, USCIS will forward the visa petition for consular processing at the U.S. Department of State's National Visa Center ("NVC"). See HANDBOOK § 12:25; Foreign Affairs Manual ("FAM") 504.1.3
"Immediate relatives"—beneficiaries who are the spouses, parents, and unmarried children under the age of 21 of U.S. Citizens—can apply for and receive a visa as soon as USCIS approves a sponsoring petition. 8 U.S.C. §§ 1101(b)(1); 1151(b)(2)(A)(i); Scialabba v. Cuellar de Osorio, 573 U.S. 41, 46-48 (2014). All other family relationships, however, are classified in "preference" categories, for which Congress imposes annual limits on the number of available visas. 8 U.S.C. §§ 1151(c)(1), 1152, 1153(a)(1)-(4). For these preference categories, visas for beneficiaries and their derivative beneficiaries become available in order of the date the sponsor filed her petition with USCIS, and demand regularly outstrips the congressionally allocated yearlyallotments. Cuellar de Osorio, 573 U.S. at 48. Some beneficiaries may wait years or even decades before a visa in a given preference category becomes available. Id. at 50. If and when a visa becomes available, the NVC then notifies the appropriate consular office, which will conduct an interview to confirm that the beneficiary is eligible for an immigrant visa. 9 FAM 504.1-2(d); 9 FAM 504.1-3.
This often lengthy process creates a pitfall for minor children whose visa preference categories hinge on their youth. See Cuellar de Osorio, 573 U.S. at 50 (). These beneficiaries risk "ag[ing] out"—i.e., reaching adulthood and losing their immigration status—before their visa applications are granted. Id. at 45-46. The Child Status Protection Act ("CSPA"), 116 Stat. 927, partially remedies this problem by preventing eligible beneficiaries from aging out due to bureaucratic delays, see 8 U.S.C. §§ 1151(f)(1), 1153(h); Cuellar de Osorio, 573 U.S. at 51-53; though not all potential age-outs are automatically eligible for CSPA's protections.
A child who "ages out" of her preferential visa eligibility may seek a visa through another preference category, but this often entails significant delays. For instance, an aged-out child of a lawful permanent resident may seek an F2B visa—a preference category available to unmarried, adult children of lawful permanent residents, which is capped at a lower number of total visas annually and subject to additional per-country limits. See 8 U.S.C. § 1152(a)(2), (4)(C); Pls.' TRO Mot., Ex. A., Decl. of Charles Wheeler, ECF No. 21-2 [hereinafter Wheeler Decl.], ¶¶ 2-3, 6. The queue for prospective F2B immigrants is at least several years long and even longer for immigrantsfrom oversubscribed countries. See Pls.' TRO Mot. at 5-6. The estimated wait time for an F2B immigrant from Mexico, for instance, is approximately 67 years. Wheeler Decl. ¶ 9.
To avoid these drastic consequences of aging out, the State Department's policy is to prioritize children whose applications are "current" (i.e., a visa is immediately available through the appropriate queue), but who are about to age out of immediate eligibility. See, e.g., 7 FAM 1812.4-2.b(4); 9 FAM 402.6-6(K)(d); 9 FAM 502.2-3(C)(c)(1). Though the COVID-19 pandemic has led to the suspension of routine visa processing worldwide, see Suspension of Routine Visa Services, U.S. DEP'T OF STATE - BUREAU OF CONSULAR AFFAIRS (Mar. 20, 2020),4 the State Department "considers age-out cases to be mission critical services that may be eligible for a national interest...
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