Court Tosses Out Trump-Era “Passport Rule” For Diversity Visa Applicants
The ruling came in the lawsuit E.B. v. Department of State (link to case background), which was organized by African Communities Together, an advocacy organization for immigrants from Africa. E.B. was filed by four anonymous plaintiffs: a national of Ethiopia and a national of Côte d’Ivoire and their U.S.-citizen siblings. The aspiring immigrants had previously applied to the DV program and would have continued to apply each year but for the passport rule. Plaintiffs were represented by the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University Law Center, and Friedman Kaplan Seiler & Adelman LLP.
The opinion by Judge Timothy J. Kelly sets and affirms important legal precedents for the U.S. District Court in the District of Columbia, which often hears suits challenging federal government actions. Judge Kelly rejected the government’s argument that the passport rule was exempt from notice and comment rulemaking under the “foreign affairs function exception,” concluding that the exception applies only when a rule “directly involves the conduct of foreign affairs.” The court roundly rejected the government’s defense that it was sufficient to provide an opportunity for public comment on the rule after it was already adopted, which Judge Kelly deemed “as bold as it is wrong.”