Key Points

  • The Ninth Circuit granted the government's emergency motion to stay, pending appeal, a preliminary injunction requiring the State Department to reopen the fiscal year 2027 Diversity Visa Program.
  • The per curiam order held that the government is likely to succeed because Red Eagle Law, an immigration law firm and the sole plaintiff, is not arguably within the zone of interests of the diversity visa statute and lacks a cause of action under the Administrative Procedure Act.
  • The panel distinguished East Bay Sanctuary Covenant v. Trump because the asylum statute expressly contemplates pro bono legal services, and CSL Plasma v. U.S. Customs & Border Protection because the B-1 visa statute was meant to benefit businesses.
  • The panel stated that it does not endorse the Department's unexplained failure to open the 2027 lottery registration period.
  • Judge N. Randy Smith concurred, writing that the firm also lacks Article III standing because its claimed loss of income from hypothetical future clients is speculative and not caused by government action directed at the firm.

A federal appeals court on Thursday blocked a judge's order that would have forced the State Department to open registration for the 2027 diversity visa lottery, a program that awards up to 55,000 visas a year to people from countries with low rates of immigration to the United States.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit granted the government's emergency motion to stay the order while the government appeals. The panel ruled in a per curiam order that the only plaintiff, the immigration law firm Red Eagle Law, L.C., likely has no right to bring the suit. Judges M. Margaret McKeown, N. Randy Smith and Holly A. Thomas heard the motion, and Judge Smith wrote separately to say the firm also lacks standing under the Constitution.

The stay suspends a preliminary injunction that the U.S. District Court for the Southern District of California entered on Oct. 14. That order required the department to announce a registration period by Oct. 29, open registration by Nov. 1 and notify selectees by Dec. 3 that they were eligible to apply. With the stay in place, the district court's injunction no longer requires the department to hold the 2027 lottery while the appeal proceeds.

Under the Immigration and Nationality Act, the department must run the Diversity Visa Program every year. Before each fiscal year, it holds a lottery that chooses roughly 100,000 people at random from qualifying countries to apply for the visas. "For fiscal year 2027, however, the Department failed—without any explanation—to open the lottery registration period, effectively canceling the 2027 Diversity Visa Program," the panel wrote.

Red Eagle, whose practice includes representing lottery selectees, sued in August 2026. It alleged that the suspension was arbitrary and capricious, that it unlawfully withheld agency action under the Administrative Procedure Act, and that it was ultra vires. The firm sued alone, without joining any prospective visa applicants, and has not claimed that it currently represents any.

The panel held that the government had made "a strong showing" that it is likely to win on the merits. The court applied the zone-of-interests test. The panel concluded that Red Eagle has not shown that it is "arguably within the zone of interests to be protected or regulated" by the diversity visa statute.

The program's purpose, the panel wrote, is to encourage immigration from countries with low immigration rates. The firm's economic interest in representing selectees, it held, is not "more than marginally related to [the Diversity Visa Program's] purposes[.]"

Red Eagle had relied on East Bay Sanctuary Covenant v. Trump, a 2018 decision in which the Ninth Circuit held that nonprofit groups representing asylum seekers fell within the zone of interests of the asylum statute. The panel distinguished that case on the ground that the asylum provisions expressly contemplate access to pro bono legal services. "But unlike the asylum statute at issue in East Bay, here, Congress did not include any provisions with respect to legal services for applicants or selectees for the Diversity Visa Program," the panel wrote.

The firm also cited CSL Plasma Inc. v. U.S. Customs & Border Protection, a 2022 D.C. Circuit decision. That court held that blood plasma companies that depended on Mexican donors holding B-1 business visas fell within the zone of interests of the B-1 visa category because the statute was created to benefit American businesses. "The plasma companies were businesses benefiting from a statute intended to benefit businesses," the panel wrote. "The same plainly cannot be said of the Diversity Visa Program, which was enacted to encourage immigration, not generate revenue for law firms."

The panel did not defend the cancellation. "We do not endorse the Department's failure to open the lottery registration period," it wrote. It held, though, that Red Eagle had not shown a likelihood of success because it falls outside the statute's zone of interests and has no cause of action.

In his concurrence, Judge Smith wrote that "Red Eagle Law also lacks Article III standing to challenge the government's failure to implement the 2027 DV Program." Article III standing is the constitutional requirement that a plaintiff show a concrete injury that the defendant caused and that a court can remedy.

Judge Smith described the firm's claimed injury as lost income from clients it might acquire in the future. He called its allegations "at best speculative" and traced the steps they depend on. An immigrant would have to register for the lottery, be one of about 100,000 chosen from millions of entrants, apply for a visa and satisfy a consular officer, with at most 55,000 visas available. The immigrant would then have to hire the San Diego firm rather than proceed without a lawyer or retain another firm. Red Eagle, he added, did not allege that its revenue had fallen, and the record showed only "the past profitability of Red Eagle Law arising from DV cases based on only three years of historical information."

Judge Smith wrote that his opinion should not be read to absolve what he described as the State Department's admission that it failed to follow the law. But he cited Supreme Court precedent warning against giving lawyers "third-party standing to bring in court the claims of future unascertained clients." He wrote: "If Red Eagle Law were allowed to allege standing based upon its hypothetical or conjectural collateral injury, we would be opening the floodgates, allowing all lawyers to 'roam the country in search of governmental wrongdoing.'"

The stay remains in effect while the government's appeal of the preliminary injunction proceeds. The panel directed the clerk to issue a briefing schedule for that appeal in due course.