Day: February 5, 2017

The Statutory Legality of Trump’s Executive Order on Immigration: Part II

Yesterday I sketched out the argument concerning the statutory legality of President Trump’s executive order on immigration. (I did not address the constitutional questions). I noted in my post that I was uncertain of a few items, and stopped short of reaching a firm conclusion. I still don’t know that I am certain, but thanks to several helpful comments I received, I can add some more clarity to this issue. In this part, I will discuss the distinctions between “entry” and “admission.”


8 U.S.C. § 1182(f) allows the President to deny “entry” to “classes of aliens” he deems “detrimental to the interests of the United States.”

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

The term “entry” was adopted in 1952. The Court explained how this term was understood in Landon v. Plasencia (1982):

In Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), we faced the question whether a resident alien’s return from an afternoon *29 trip across the border was an “entry” for immigration law purposes. The definition of that term was the same then as it is now: it means “any coming of an alien into the United States … except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him….” Section 101(a)(13), 8 U.S.C. s 1101(a) (13). We held in Fleuti that the “intent exception” refers to an intent to depart in a “manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” 374 U.S. at 462, 83 S.Ct., at 1812. Thus, an “innocent, casual, and brief excursion” by a resident alien outside this country’s borders would not subject him to the consequences of an “entry” on his return. Ibid. If, however, “the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful.” Ibid. That distinction both protects resident aliens from “unsuspected risks and unintended consequences of … a wholly innocent action,” ibid., and gives effect to the language of s 101(a)(13).6
6 Section 101(a)(13), 8 U.S.C. s 1101(a)(13), which defines “entry,” was enacted in 1952 in response to the harsh results visited upon resident aliens by earlier restrictive interpretations of the term. Both the House and Senate reports contained identical explanatory language:
“Normally an entry occurs when the alien crosses the borders of the United States and makes a physical entry, and the question of whether an entry has been made is susceptible of a precise determination. However, for the purposes of determining the effect of a subsequent entry upon the status of an alien who has previously entered the United States and resided therein, the preciseness of the term ”entry“ has not been found to be as apparent. Earlier judicial constructions of the term in the immigration laws, as set forth in Volpe v. Smith (289 U.S. 422 (53 S.Ct. 665, 77 L.Ed. 1298) (1933)), generally held that the term ”entry“ included any coming of an alien from a foreign country to the United States whether such coming be the first or a subsequent one. More recently, the courts have departed from the rigidity of that rule and have recognized that an alien does not make an entry upon his return to the United States from a foreign country where he had no intent to leave the United States (Di Pasquale (sic) v. Karnuth, 158 F.2d 878 (C.C.A.2d 1947)), or did not leave the country voluntarily (Delgadillo v. Carmichael, 332 U.S. 388 (68 S.Ct. 10, 92 L.Ed. 17) (1947)). The bill defines the term ”entry“ as precisely as practicable, giving due recognition to the judicial precedents. Thus any coming of an alien from a foreign port or place or an outlying possession into the United States is to be considered an entry, whether voluntary or otherwise, unless the Attorney General is satisfied that the departure of the alien, other than a deportee, from this country was unintentional or was not voluntary.”
S.Rep. No. 1137, 82d Cong., 2d Sess., 4 (1952); H.R.Rep. No. 1365, 82d Cong., 2d Sess., 32 (1952), U.S. Code Cong. & Admin.News 1952, p. 1683.
In DiPasquale, the court refused to allow a deportation that depended upon an “entry” that occurred after an overnight train on which an alien was a passenger passed through Canada on its way from Buffalo to Detroit. In Delgadillo, the Court refused to define as an “entry” the return of an alien taken to Cuba to recuperate after the merchant ship on which he sailed was torpedoed in the Caribbean during World War II.
The Board of Immigration Appeals advanced a three part test to determine whether an alien has entered. This distinction is important, because an alien who has not entered is subject to a different removal process.

In relevant part, an “entry” for immigration purposes is defined as “any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntary or otherwise.” Section 101(a)(13) of the Act. Over time, caselaw has led to the formulation of a more precise definition of that term, requiring: (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2)(a) inspection and admission by an immigration officer, or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint. Matter of Patel, Interim Decision 3157 (BIA 1991), and cases cited therein; see also Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d Cir. 1990).

Matter of G-, 20 I. & N. Dec. 764, 768 (BIA 1993)

Under this precedent, an alien that physically crossed the border, but was not subject to inspection, had not entered.


In the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), Congress dropped the word “entry,” and replaced it with the concept of “admission,” defined in 8 U.S.C. 1101(a)(13) as:

The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

Under this provision, the definition of “admission” includes the phrase “entry,” albeit a “lawful entry.”

Notwithstanding the 1996 IIRIRA, the BIA still retains the earlier definition of “entry.” Consider this passage from Matter of Martinez-Serrano, 25 I. & N. Dec. 151, 153–54 (BIA 2009):

Under our precedent decisions, “an ‘entry’ requires: (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2) (a) an inspection and admission by an immigration officer, or (b) an actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint.” Matter of Z-, 20 I&N Dec. 707, 708 (BIA 1993) (emphasis added) (interpreting the term “entry” as it was defined under  former section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1988), i.e., prior to the amendments made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546).

“Admission” and “entry” are similar, but not identical in usage. Even before IIRIRA,  the BIA found that separate from “entry,” “admission” refers to a communication between the alien and the inspecting officer:

“Admission” occurs when the inspecting officer communicates to the applicant that he has determined that the applicant is not inadmissible. Matter of V__Q__, 9 I & N Dec. 78 (BIA 1960). That communication has taken place when the inspector permits the applicant to pass through the port of entry.

Matter of Areguillin, 17 I. & N. Dec. 308, 311 (BIA 1980)

The relationship between the two terms is context specific. An alien can “enter” without being “admitted.” In Matter of Estrada-Betancourt, 12 I. & N. Dec. 191, 192 (BIA 1967), the BIA considered a case where aliens drove across the Mexican border to Brownsville, Texas. Because they did not stop at a check point, there was no inspection, or formal admission. The resolution of the case turned on whether they entered.

The controlling question in determining whether Petitioners were entitled to a deportation proceeding rather than an exclusion proceeding is the issue of whether they had in fact made an “entry” within the meaning of that word as it is used in the Immigration and Nationality Act. That is the test which must be applied in determining whether exclusion or deportation proceedings are proper in the case now before us. . .  .

We think the foregoing authorities clearly call for the conclusion that these aliens, who did not arrive in the United States at a “designated port of entry,” were required to proceed by the ordinary route to the nearest such port for their inspection. According to the list of such “ports” for these aliens who arrived in the United States by other than aircraft, Brownsville, Texas, was that “port” (section 1.51(c)(2)a1.) We hold that when they evaded inspection at that place their “entry” was effected and they were thereafter properly the subject of expulsion proceedings for having “entered without inspection.”

That is, the aliens entered, but were not admitted.

However, an alien can also be “admitted” without “entry.” (This concept is somewhat counterintuitive). Consider Matter of Patel, 20 I. & N. Dec. 368 (BIA 1991):

An applicant for admission to the United States, whose passport is stamped “Admitted” by an immigration inspector but who is prevented from entering the main terminal of an airport by a customs officer who suspects the passport to be fraudulent, is properly placed in exclusion proceedings because the applicant is not “free from official restraint,” as required by Matter of Pierre.

In this case, though the alien went through the inspection process, and was formally admitted, due to some last-minute concerns, there was no actual entry onto U.S. soil.

This latter definition is not helpful for understanding the President’s executive order on immigration. Trump’s order affects “entry,” not “admissibility.”

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order.

If the ban is in place, the aliens never make it to inspection in the first place. In this sense, “entry” is broader than admission. That is, a person who does not enters can never be admitted in the first place.

Section 1182(f) is not a simple admissibility policy, but a far broader power to exclude those who are detrimental to American interests. This provision would not affect citizens, because it is limited to “aliens.” For Lawful Permanent Residents, a ban on entry would implicate the Due Process Clause because Congress has provided them with statutory rights. (In no small part, this explains the White House’s “clarification” that LPRs are not subject to the order). For refugees, and other types of aliens, however, no constitutionally protected interest is implicated.

As an aside, query whether the President has the inherent executive power to bar entry of aliens, even in the absence of this statute, as commander in chief. A related question was debated at length over the past few years: were Congress’s limitations on President Obama’s power to transfer detainees from Guantanamo to the United States a violation of his Article II powers?

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Three Possible Paths to #SCOTUS for Washington v. Trump

Last night, Acting Solicitor General Noel Francisco filed an emergency motion for an administrative stay with the Ninth Circuit. A few hours later, a two-judge panel–CANBY and FRIEDLAND–denied the administrative stay, and requested briefing. Washington’s brief is due today at midnight, and the SG’s reply is due on Monday at 3:00 PM (PST). As a result, the soonest we could realistically expect a judgment would be late Monday night, or early Tuesday morning. More likely than not, it may take a day or so before the panel puts together an opinion. For a host of reasons, I don’t expect the panel to grant the stay. Beyond the normal liberal valence of the 9th Circuit, and this panel in particular, it is too easy for the court to dump the case. As evidenced by a #AppellateTwitter discussion last night between Rick Hasen and Doug Laycock, the standard for appealing a TRO is somewhat unclear, and there is an argument (which Washington will ably advance) that there is no jurisdiction. I don’t know the answer to this question, but the safest bet for the court is to summarily deny the order due to lack of jurisdiction, without touching the difficult merits question which Judge Robart simply glossed over in his orer.

At that point, the Acting SG (ASG) is faced with a few possible choices. The ASG can seek rehearing en banc for a stay. That is unlikely to go anywhere, especially if the panel found that it lacked jurisdiction. Thus, I see three possible paths to get this case before the Court.

First, the ASG can file an emergency application for a stay with Circuit Justice Kennedy. The Supreme Court won’t care much about the nuances of the 9th Circuit’s jurisprudence for reviewing appeals of TROs. If there are five votes to stay the injunction, it will be stayed. But herein lies the problem. We still have eight justices, and will have 8 justices until (at the earliest) the second week in April. I don’t know if there will be five votes to stay the injunction. Would the Chief Justice, as well as Justices Kennedy, Thomas, and Alito, support a stay? Could they cajole Justice Breyer to provide another, and far more momentous “courtesy” fifth vote?

The solution to this goes back to lengthy discussions about restoring the status quo with respect to the same-sex marriage litigation (which Howard Wasserman and I discussed in this article), and during the U.S. v. Texas litigation (see here and here). Before Trump’s order, the status quo was that certain aliens, with valid visas, were permitted to enter the United States. After Trump’s order, the status quo was disrupted, and those same aliens were not permitted to enter. After orders from Judges in Boston, Seattle, and elsewhere, the ex ante status quo from before Trump’s order was restored. Now, if SCOTUS were to issue a stay, the ex ante status quo from after Trump’s order, but before the district court’s orders, would be restored. To put the point succinctly, the Court could disrupt either the former or latter status quo. Which would it prefer to do?

Second, the ASG can simultaneously file an emergency application for a stay, and a petition for certiorari before judgment. (The Obama administration took this step in the DOMA litigation, filing a petition for certiorari before the 2nd Circuit’s judgment in Windsor). There is an obvious benefit here: while an application for a stay requires five votes, a petition for certiorari requires only four. Even if Justice Breyer cannot be cajoled to provide a courtesy fifth vote, the four conservatives can grant certiorari. This move also has an added benefit. Depending how the briefing schedule is set, arguments could conceivably be held after Justice Gorsuch joins the bench.

There is an especially relevant precedent here: Youngstown. President Truman promulgated Executive Order No. 10340 on April 8, 1952. Shortly thereafter, the steel mill owners filed suit in the District of the District of Columbia, seeking a temporary restraining order to halt the seizures of their property. U.S. District Judge David A. Pine, promptly held oral arguments, and on April 29, 1952, issued a well-reasoned 14-page decision, finding that the Executive Order violated the separation of powers, which–in effect–issued a nationwide injunction, barring the Secretary from seizing any mill in the United States. That same day, the D.C. Circuit, sitting en banc, stayed the district court’s decision so long as a petition for certiorari was filed with the Supreme Court by May 3. Papers were filed by May 3, and the Supreme Court granted review on May 3. Oral arguments were held on May 12 and May 13, followed by the landmark decision on June 2, 1952.

There is of course a third option: do nothing and let this case run its court. For institutional reasons, the government may not seek to burn the capital by seeking certiorari before judgment, and rushing this case up too quickly. There is another element that has not gotten much attention, but should. We are here dealing with an interim policy that will last only 90 days. More likely than not, the Supreme Court would be unable to resolve this issue before April 27, 2017. It is entirely possible that the government issues a final policy on, or before that date. Wouldn’t the SG rather the Supreme Court consider the final policy, and not the interim policy? Further, by waiting, there is a certainty that Justice Gorsuch would be on the bench, thus making it easier to get to five votes.

With respect to mootness, the “voluntary cessation” doctrine may allow the district courts to maintain jurisdiction, even if the January 27 executive order is withdrawn. I am researching this doctrine (among countless other issues with this break-neck issue), and will write about it in due time.

In short, what the ASG does, in large measure turns on how quickly the government wants the Court to resolve the issue. The administration will almost certainly seek an emergency stay, but I don’t know that there are five votes. If the administration wants a quick resolution from 4 Justices, ASG can petition for certiorari before judgment. If the ASG would rather have a full complement of nine Justices resolve the issue, it can seek a stay now, and take no further steps if it is denied.

Update: This thread captures more of my thoughts.

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Commentary and Media Hits – Week of 1/29/17

Here is my commentary and media hits over the past week. The big stories were the immigration executive order, the firing of Sally Yates, and the nomination of Judge Neil Gorsuch.




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The Statutory Legality of Trump’s Executive Order on Immigration

The legality of President Trump’s executive order on immigration depends in large measure on the interplay between two statutes: 8 U.S.C. s. 1182(f) and 8 U.S.C. s 1152(a)(1). In this post I will discuss whether the order is within the authority delegated by Congress. (I do not discuss the constitutional issues here).

8 U.S.C. § 1182(f)

The government’s statutory case hinges primarily on 8 U.S.C. § 1182(f), which provides:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
A few important points about the text. First, the provision affects “the entry of any aliens.” During debates about the executive order, pundits have conflated two issues: the granting of visas and the decision to allow someone to enter the United States. These are distinct questions. Even if an alien arrives at an airport with a valid visa, he may not be permitted entry to the United States. For example, if a person shows up at a border checkpoint, and exhibits symptoms of a communicable disease (Ebola or SARS), the government can detain him, and subject him to an expedited removal process. Even though he is literally on U.S. soil, and has valid papers, until he crosses the check point, he is not actually within the legal boundaries of the United States. Here, judicial process is slim to none.

Second, the provision delegates virtually unfettered discretion for the President to determine what is “detrimental to the interests of the United States.” As a constitutional matter, it isn’t even clear if such a delegation is necessary, as this authority (I would contend) is inherent in the President’s Article II powers. But here it is in the statute. In terms of Justice Jackson’s concurrence in Youngstown, we are squarely in the First Tier, where the Executive’s authority is at its apex.

Third, the provision gives the President wide, wide latitude. His proclamation can last “for such period as he shall deem necessary.” In other words, there is no temporal limitation. This power also includes the authority to “suspend” the “entry” (there’s that phrase entry again), or “impose” any “restrictions” the President deems appropriate. The statute expressly countenances a permanent moratorium on not just a single alien on a case-by-case basis, but for a “class of aliens” from entering the United States if the President deems their entry “detrimental to the interests of the United States.” This power is quite broad.

This understanding has long been embraced by the Executive. In an August 1982 OLC Opinion, Assistant Attorney General Theodore Olson advised the President that the Coast Guard could interdict Haitian Flag Vessels, and deny entry to Haitian nationals under 1182(f). (5 U.S. Op. Off. Legal Counsel 242):

Under § 1182(f), the President would make a finding that the entry of all Haitians without proper documentation is detrimental to the interests of the United States and issue a proclamation suspending their entry. It could be argued that the entry of illegal aliens, Haitians or otherwise, is already ‘suspended’ since it is already illegal for them to come, and that the section is directed against those who are otherwise eligible. The section, however, is not limited by its terms to documented aliens, and the legislative history is silent on this point. Since the section delegates to the President the authority to exclude entirely certain classes of aliens, we believe that a return of the Haitians can be based on the Coast Guard’s power to enforce federal laws. 14 U.S.C. § 89(a).

This issue was litigated, extensively, and the courts held that determinations under 1182(f) were not subject to judicial review:

8 U.S.C. § 1182(f) clearly grants the President broad discretionary authority to control the entry of aliens into the United States. Section 1182(f) grants the President the discretion to act to exclude aliens “as he deems necessary.” Pursuant to this power, President Reagan issued Executive Order 12324 authorizing the interdiction of illegal aliens at sea. HRC concedes that the President’s order is not reviewable under the APA. They argue that the President’s subordinates are not carrying out his directive and that their failure to do so is subject to judicial review. . . .

Congress has committed to the President broad authority to control the entry of aliens or of any class of aliens when he determines that it would be detrimental to the interests of the United States. 8 U.S.C. § 1182(f). The President may suspend or restrict the entry of aliens for the period he deems necessary and impose the restrictions he deems appropriate. Id. Pursuant to this broad grant of authority, President Reagan issued Executive Order 12324.

Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507, 1510 (11th Cir. 1992)

In Sale v. Haitian Centers Council (1993), Justice Stevens found for 8 members (all save Justice Blackmun) that 1182(f) allows the President to deny Haitians entry, simply based on their nationality:

It is perfectly clear that 8 U.S.C. § 1182(f), see n. 27, supra, grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores. Whether the President’s chosen method of preventing the “attempted mass migration” *188 of thousands of Haitians—to use the Dutch delegate’s phrase—poses a greater risk of harm to Haitians who might otherwise face a long and dangerous return voyage is irrelevant to the scope of his authority to take action that neither the Convention nor the statute clearly prohibits. As we have already noted, Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested. That presumption has special force when we are construing treaty and statutory provisions that may involve foreign and military affairs for which the President has unique responsibility. Cf. United States v. Curtiss–Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). We therefore find ourselves in agreement with the conclusion expressed in Judge Edwards’ concurring opinion in Gracey, 257 U.S.App.D.C., at 414, 809 F.2d, at 841:“This case presents a painfully common situation in which desperate people, convinced that they can no longer remain in their homeland, take desperate measures to escape. Although the human crisis is compelling, there is no solution to be found in a judicial remedy.”

Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 187–88, 113 S. Ct. 2549, 2567, 125 L. Ed. 2d 128 (1993)

President Reagan relied on the same provision in 1986 to “suspend entry into the United States as immigrants by all Cuban nationals.”

By all accounts, 1182(f) provides all of the authority the President needs to exclude classes of migrants based on their nationality. Indeed, a 1984 dissent from the Eleventh Circuit acknowledged that this provision permits discrimination on the basis of national origin.

For example, in contrast to the parole statute, which contemplates individual consideration based on non-discriminatory factors, 8 U.S.C. § 1182(f) gives the Executive the power to bar entry of “any class of aliens” when “the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental….”3 Congress thus has shown that it knows how to grant the Executive the authority to discriminate based on national origin where it deems necessary, but no such grant can be found from the language of section 1182(d)(5).

Jean v. Nelson, 727 F.2d 957, 987 (11th Cir. 1984), aff’d, 472 U.S. 846, 105 S. Ct. 2992, 86 L. Ed. 2d 664 (1985) (Kravitch, C.J. dissenting from denial of rehearing).

What is the potential statutory argument to the contrary? 8 U.S.C. s 1152(a)(1).

8 U.S.C. § 1152(a)(1)

8 U.S.C. § 1152(a)(1) provides:
(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

There are a few critical points to stress. First, as noted earlier, Section 1182(f) concerns the “entry of any aliens.” Section 1152(a)(1), in contrast, concerns only the issuance of “immigrant visas.” These are different concerns. Generally, a person who was issued a visa is not subject to any of the grounds of inadmissibility (See 8 U.S.C. s 1182). Thus, he will almost always be admitted into the United States (absent some emergency, like the communicable disease example I offered earlier). David Bier, for example, writes “Immigrants cannot legally be issued a visa if they are barred from entry.”

But this is not always the case. A person with an otherwise valid visa could still be denied entry based on changed circumstances. Brumme v. INS, 275 F.3d 443 (5th Cir. 2001) is instructive.

Brumme, a German national had a valid non-immigrant “visitor visa.” After arriving from a flight from German at DFW airport, Brumme told an inspector that she intended to become an immigrant. That was the wrong answer.

Intending immigrants generally require an “immigrant” visa—authorizing permanent residence—as opposed to one of the various ‘nonimmigrant’ visas, such as Brumme’s “visitor” visa—authorizing a temporary stay for business or pleasure. The Inspector determined that Brumme did not possess a valid unexpired immigrant visa and informed her that her visitor visa did not permit her to remain indefinitely in the United States. According to the Inspector, the visitor visa required Brumme to make a significant departure by remaining outside the United States longer than she remained inside. Brumme acknowledged she understood that the visitor visa did not permit her to remain in the United States indefinitely; but she believed she could stay in the United States, leave for a short period, and return. Based on Brumme’s admission that she was an intended immigrant, and because she did not possess the requisite immigrant visa, the Inspector concluded that, pursuant to 8 U.S.C. § 1182(a)(7), Brumme was inadmissible to the United States. That section provides, in pertinent part: “[A]ny immigrant at the time of application for admission … who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document … is inadmissible”. 8 U.S.C. § 1182(a)(7).

Brumme was then ordered to be subject to the expedited removal process.

The changed circumstances here, however is not, something specific to an alien, but a departure from the executive’s policies. Trump’s executive order abandoned the old standards from the Obama administration, and established his own. As a result, decisions concerning admissibility, when granting old visas, are no longer consistent with current standards. And under (B), the Secretary can “determine the procedures” needed for the screening.

Contrary to Judge Robart’s questioning, there really is no inconsistency between 1182(f) and 1152(a). The latter controls the issuance of a visa. The former controls admission. The President’s executive order specifically concerned “entry” of such aliens:

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order…

I flag one possible issue–the word “entry” and “admissible” may not be construed identically; I could not find a clear authority one way or the other on this. Entry seems to be a pre-1996 term, while admissibility is a presently used term. If anyone has a precedent on whether these terms are identical, or different, please share.

This 1980 decision from the 9th Circuit seems to use the phrase “entry” in the same sense as “admissible,” but I’m not certain:

As to the President’s authority under 8 U.S.C. s 1182(f), that statute specifically grants the President, where it is in the national interest to do so, the extreme power to prevent the entry of any alien or groups of aliens into this country as well as the lesser power to grant entry to such person or persons with any restriction on their entry as he may deem to be appropriate.

Mow Sun Wong v. Campbell, 626 F.2d 739, 744 (9th Cir. 1980)

Second, and relatedly, the non-discrimination provision is inapplicable to aliens who enter the United States with non-immigrant visas, or refugees who enter with no visa. With respect to these individuals, the government can discriminate on the basis of “race, sex, nationality, place of birth, or place of residence.” (I am tabling for a moment the constitutional issues). Further, notably absent from the list of prohibited grounds of discrimination is “religion.” Congress expressly left open the power of the government to grant visas on the basis of a person’s faith. (Again, this does not resolve the inquiry under the Free Exercise or Establishment Clause, but to the extent Congress had an intent here, they were not trouble by religious tests). Indeed, the Executive has often granted refugee status expressly because of an alien’s faith.

Third, subparagraph (B) specifically provides that notwithstanding the pervious paragraph, the Secretary can “determine the procedures for the processing of immigrant visa applications.” That includes the very sort of “extreme vetting” the President called for–even if it amounts to discrimination on the basis of nationality. Even if there is a conflict, the provision creates a special carveout for the admitting procedures.

I welcome any suggestions or corrections. If you’ve noticed, I haven’t come to a firm conclusion at this time.

I will also defer, for now at least, discussion of whether the order is constitutional. The Constitutional Law listserve has been ablaze over the past few days about whether the executive action violates the Due Process Clause, the Equal Protection Clause, the Free Exercise Clause, or the Establishment Clause. The answer is extremely complicated because the courts have never made clear how the Constitution applies to different classes of aliens, with different types of relations to the country, who are seeking admission to the United States.

In closing, I’ll reiterate that as a matter of policy, the order is absolutely awful, and the manner in which it was implemented was a debacle. But that does not resolve the question of whether it is legal.

Update: I wrote a second part, focusing on the distinction between entry and admission.

Update: I wrote a third part, focusing on the issuance of visas.

Update: Part of my series is here. I also wrote a two-part series on Lawfare concerning Washington v. Trump: Part I and Part II.

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Breaking: DOJ Files Emergency Motion for Administrative Stay in Washington v. Trump

The motion is here. Here is the introduction. I will offer analysis as I make my way through the brief.

The district court here nevertheless issued an immediate, nationwide injunction barring enforcement of the Order, accompanied by virtually no legal analysis. R 52 (Exhibit C).

The district court’s sweeping injunction should be stayed pending appeal. It conflicts with the basic principle that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). It also contravenes the considered judgment of Congress that the President should have the unreviewable authority to suspend the admission of any class of aliens. The district court did not confront those authorities; indeed, it gave no explanation why the State of Washington has a high likelihood of success on the merits of its claims. And it entered the injunction at the behest of a party that is not itself subject to the Executive Order; lacks Article III standing or any right to challenge the denial of entry or visas to third-party aliens; and brings a disfavored facial challenge. The injunction is also vastly overbroad— it is untethered to Washington’s particular claims; extends even to aliens abroad who currently have no visas; and applies nationwide, effectively overriding the judgment of another district court that sustained the Executive Order against parallel challenges.

The balance of harms weighs strongly in favor of a stay, as well as an immediate administrative stay pending consideration of the request for a full stay pending appeal. The injunction immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment. As the President acted well within both statutory and constitutional authorization, the relief irreparably harms our system of government by contravening the Constitution’s separation of powers. The State, by comparison, has identified only speculative harms it would suffer from temporary suspension of the entry of aliens affected by the Order, and that harm could be minimized by expediting appeal.

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