The James R. Browning U.S. Court of Appeals Building in San Francisco, headquarters of the Ninth Circuit, U.S. General Services Administration photo (public domain).
The appeals court didn’t defend the State Department’s cancellation of the lottery. Its ruling turned on who brought the lawsuit, leaving open whether a challenge by someone else could succeed.
The DV-2027 diversity visa lottery will stay closed while the government appeals. The U.S. Court of Appeals for the Ninth Circuit granted the State Department’s emergency motion on Oct. 29 for a stay pending appeal. The ruling suspends a lower court order that had required the department to open registration by Nov. 1.
The order, issued by a panel of Judges M. Margaret McKeown, N. Randy Smith and Holly A. Thomas, settles a question left open when the stay was first reported. This isn’t a temporary pause while the judges consider the motion. It lasts for the full appeal. The court said its clerk will set a briefing schedule for the appeal later, but it gave no dates.
The panel designated the order for publication, which means it can be cited as precedent in the Ninth Circuit.
The court ruled on who sued, not on the cancellation itself
The case, Red Eagle Law, L.C. v. Rubio, No. 26-6943, was brought by a single plaintiff: Red Eagle Law, an immigration law firm in San Diego County that represents diversity visa selectees. The panel noted that no prospective lottery applicants joined the suit, and the firm didn’t claim to represent any current applicants.
That was the central issue. To sue under the Administrative Procedure Act, a plaintiff must be “arguably within the zone of interests” that the law is meant to protect. The panel said the diversity visa program exists to encourage immigration from countries with low immigration rates to the United States. A law firm’s financial interest in representing selectees, the court wrote, isn’t more than marginally related to that purpose. In the panel’s view, the program was created to encourage immigration, not to generate revenue for law firms.
The firm relied on a 2018 Ninth Circuit decision, East Bay Sanctuary Covenant v. Trump, which allowed nonprofit legal service providers to challenge asylum rules. The panel said that case was different because the asylum statute specifically provides for access to pro bono legal services. The diversity visa statute contains no comparable provision. The panel also rejected the firm’s reliance on a D.C. Circuit case involving blood plasma companies. It said that statute was designed to benefit businesses, while the diversity visa program was not.
Because the firm likely lacks a cause of action, the panel found that the government is likely to win the appeal. That was enough to grant the stay.
The court didn’t defend the State Department
The order doesn’t support the department’s decision on the merits. The panel’s opening states that the department failed to open DV-2027 registration “without any explanation,” which effectively canceled the program. It then adds: “We do not endorse the Department’s failure to open the lottery registration period.”
Judge Smith wrote a concurrence arguing that the firm also lacks constitutional standing to sue under Article III. He described a long chain of uncertain steps between the cancellation and any loss to the firm. A person would have to enter the lottery, be selected, apply, receive a visa from a consular officer, and then choose to hire a San Diego firm rather than another firm or no lawyer. He said that chain was too speculative to support standing. He also noted that the firm hadn’t alleged that its revenue declined, only that it lost the chance to earn future income. Allowing that type of claim, he warned, would let lawyers sue over almost any government action that might affect future clients.
Smith’s concurrence also refers to the State Department’s “admission that it failed to follow the law.” He said his opinion shouldn’t be read as excusing that admission.
What the ruling leaves open
The panel decided only whether this law firm could bring this case. It didn’t decide whether the State Department lawfully canceled the program. U.S. District Judge Jinsook Ohta found that the department’s open-ended suspension was likely arbitrary and capricious, and the panel didn’t reject that finding.
The ruling’s reasoning focuses on the people the program is meant to serve: would-be immigrants from eligible countries. This order doesn’t decide whether a lawsuit by someone in that group would succeed. Such a case would raise its own legal questions, and none is reported to be pending in this dispute.
Why the timing matters
The stay’s practical effect may be more important than the eventual decision. Under federal law, a DV-2027 visa can be issued only through Sept. 30, 2027, and no court can extend that deadline. Ohta’s schedule had already reduced the time selectees would have to complete the process to less than 10 months, compared with about 17 months in a normal year. A full appeal, with briefing and possibly oral argument, could take a significant part of the time remaining.
If the government wins on the zone-of-interests issue, the case ends. If Red Eagle wins, the time left may be too short to run a full lottery.
What this means for people waiting to enter
There is currently no DV-2027 registration and no date for one. The Nov. 1 opening ordered by the district court won’t happen, and the court hasn’t set a new date.
When registration opens, it will be available only through the State Department’s official E-DV website, dvprogram.state.gov. Be skeptical of any website, agent or social media post that offers early entry, guaranteed selection, or help registering for a fee during the freeze.
What to watch
- The briefing schedule: It will show how quickly the appeal may be decided, and how much of the DV-2027 fiscal year could remain.
- Further review: Red Eagle could ask the Ninth Circuit or the Supreme Court to reconsider the stay.
- New lawsuits: Watch for any challenge brought by prospective entrants or others whose interests the panel described as tied to the program’s purpose.
- Sept. 30, 2027: This is the last day any DV-2027 visa can be issued, regardless of how the appeal ends.
This article is for general information and is not legal advice.
Sources
- U.S. Court of Appeals for the Ninth Circuit, Red Eagle Law, L.C. v. Rubio, No. 26-6943, Order Granting Emergency Motion for Stay Pending Appeal, Dkt. 17.1 (Oct. 29, 2026)
- U.S. District Court, Southern District of California, No. 3:26-cv-04738-JO-VET
- Earlier coverage: DV-2027 Lottery Paused as Ninth Circuit Halts Reopening Order
About the Author
Discover more from Immigration Analytics
Subscribe to get the latest posts sent to your email.
