Lawsuit Challenges Trump Administration’s New Passport Requirement for Diversity Visa Lottery Applicants

September 24, 2019

Georgetown Law’s Institute for Constitutional Advocacy & Protection and Law Firm Friedman Kaplan Seek Court Order Preventing State Department’s Passport Rule from Going into Effect

WASHINGTON — Three aspiring immigrants and their family members in the United States have challenged a new rule issued by the State Department that would require nearly all applicants for the Diversity Visa Program to have a valid passport. The plaintiffs, including two applicants from Ethiopia and one from Côte D’Ivoire, are represented by attorneys at Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) and the law firm Friedman Kaplan Seiler & Adelman (Friedman Kaplan). They argue that the rule, which was issued without public input, would effectively bar applicants from developing countries where passport ownership is rare and getting a passport can be prohibitively costly and time-consuming, particularly African countries.

The lawsuit was coordinated and supported by African Communities Together (ACT), an organization that advocates on behalf of African immigrants in the United States. ACT has opposed the Rule, which went into effect on June 5, 2019. “The Diversity Visa program made a promise: that you don’t have to be wealthy or have family connections to get a fair shot at immigrating to America,” said Amaha Kassa, ACT’s founder and Executive Director. “This rule change goes back on that promise, and does it in an illegal and opaque way that seems designed to discourage Africans and other immigrants from poorer countries from applying to the DV lottery. It’s part of a pattern by this Administration to say that when it comes to the American Dream, certain immigrants need not apply.”

The crux of the lawsuit is that the passport rule was issued without legally required public notice and comment. In an attempt to avoid public participation, the Trump Administration claimed that the rule fits within a narrow exception for matters that affect “foreign affairs.” But, as the lawsuit explains, the foreign affairs exception does not apply to every rule that involves immigration, and the State Department has failed to show why a new rule that will limit African participation in the Diversity Visa Program is so urgently needed for diplomatic reasons that it must be issued without public comment.

“The American public, including family members of aspiring African immigrants and their communities, deserve the opportunity to voice their concerns before the government imposes a rule that could effectively bar millions of applicants from this important program,” said Seth Wayne, Senior Counsel at ICAP. “There is no legitimate basis to claim that the foreign affairs exception applies here. It is simply an intentional effort to avoid public input.”

The new rule follows derision from the Trump Administration about the Diversity Visa Program in general, and immigrants from African countries in particular, whom President Trump has referred to as coming from “shithole countries.” Although the Diversity Visa Program, which was enacted in 1990 with bipartisan support, is intended to increase American diversity by providing visas to immigrants from countries who send relatively few people to the United States, the passport rule could have the effect of severely curtailing applicants from many countries which previously benefited from the program.

“In addition to failing to engage in public comment, the State Department has not publicized the rule in any way. It is not mentioned on the Diversity Visa web site or in the application instructions,” said Friedman Kaplan attorney Anil Vassanji. “As a result, many people will not realize that they need a passport to apply, and will not find out until their applications get rejected. Even people who can afford a passport won’t be able to get one in time to apply.”

The lawsuit is the first in the country to challenge the rule. The plaintiffs also filed today a motion for a preliminary injunction to stop the passport rule from affecting applicants for this year’s Diversity Visa Program application cycle, which runs from early October to early November. If granted, a preliminary injunction would stop the State Department from enforcing the rule while the case is pending.

Read the full complaint here.