Day: February 11, 2017

Kerry v. Din, Kleindiesnt v. Mandel, and Washington v. Trump

If you read the 9th Circuit’s opinion in Washington v. Trump, you may think that Justice Kennedy’s concurring opinion in Kerry v. Din (2015) endorsed the heretofore unknown principle that aliens with zero connection to the United States–other than American relatives, or even an interest in visiting a Washington University–are afforded due process rights. Consider this analysis:

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972). Accordingly, the Government has not demonstrated that the States lack viable claims based on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.

Discussing the panel’s decision, Mike Dorf, for one, explains Kennedy’s concurring opinion holds that “a credible allegation of bad faith would enable a court to look behind a government’s facial assertion of a national security interest in excluding an alien outside the United States.” Not quite.

Let’s take a look at a closer look at Kerry v. Din. Fauzia Din was a U.S. citizen. Her husband, Kanishka Berashka, was an Afghan national, and a former civil servant in the Taliban. Din applied for an immigrant visa for her husband. Berashka was interviewed at the U.S. embassy in Islamabad. The consular officer told him that he was inadmissible under 8 U.S.C. s. 1182(a)(3)(B), which deems inadmissible those who had engaged in “terrorist activities.” Berashka was not given any reason for the denial beyond the statutory citation. Berashka had no cause of action. In light of the 1972 precedent of Kleindienst v. Mandel, the husband has “no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission.” Instead, Din filed for mandamus on his behalf in the Northern District of California, and sought a “declaratory judgment that 8 U.S.C. § 1182(b)(2)-(3), which exempts the Government from providing notice to an alien found inadmissible under the terrorism bar, is unconstitutional as applied.”

Before the Supreme Court, Din argued that the denial of the visa “without adequate explanation” in fact deprived her of due process of law, and “violated her constitutional rights.” The authorship of this case is complicated. Justice Scalia announced the judgment of the Court for the Chief and Justice Thomas. Justice Kennedy, joined by Justice Alito, concurred in judgment. In other words, there was not a five-member majority. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented.

Justice Scalia’s opinion rejected her claim. Because Din cannot assert a “life” or “property” interest, she could only assert a substantive due process right. To the surprise of no one, Justice Scalia concluded that “no such constitutional right” exists. “Only by diluting the meaning of a fundamental liberty interest and jettisoning our established jurisprudence,” he wrote, “could we conclude that the denial of Berashk’s visa application implicates any of Din’s fundamental liberty interests.” Critically, Scalia concluded, “The legal benefits afforded to marriages and the preferential treatment accorded to visa applicants with citizen relatives are insufficient to confer on Din a right that can be deprived only pursuant to procedural due process.” As a result, the due process claim fails, because “no process is due if one is not deprived of ‘life, liberty, or property.'”

Justice Breyer’s dissent, in contrast, contended that the denial of the visas amounted to a “deprivation of [Din’s] freedom to live together with her spouse in America.” The dissent stops short of asserting a fundamental substantive due process right, but claims that the right is significant enough to warrant procedural due process. To this, Justice Scalia responds:

[The denial of the visa] might, indeed, deprive Din of something “important,” post, at 2142, but if that is the criterion for Justice BREYER’s new pairing of substantive and procedural due process, we are in for quite a ride.

(How Justice Breyer can read so woodenly an enumerated right that actually speaks of “the right of the people to keep and bear arms,” yet imbue into the word “liberty” heretofore unknown rights, will always confound me.).

Justice Kennedy’s opinion, as usual, was far more nuanced. It begins:

The plurality is correct that the case must be vacated and remanded. But rather than deciding, as the plurality does, whether Din has a protected liberty interest, my view is that, even assuming she does, the notice she received regarding her husband’s visa denial satisfied due process. Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse. The Court need not decide that issue, for this Court’s precedents instruct that, even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute’s terrorism bar, § 1182(a)(3)(B). See ante, at 2131 – 2132.

The divide about substantive due process likely caused the fragmented opinion. Recall that this decision was on the doorstep of the marriage equality cases. At the time, I wrote:

I think Justice Kennedy was originally assigned the majority opinion in Kerry v. Din, but lost Scalia, Roberts, and Thomas. Only Justice Alito concurred with AMK. Recall that Scalia, Roberts, and Thomas issued a much broader opinion that implicated the SSM cases, while AMK resolved it on much narrower grounds. It’s possible Nino’s circulated concurring opinion broke off the votes of Roberts and Thomas.

Even then, however, Justice Alito is no fan of substantive due process. It is a stretch to read the concurring opinion as endorsing anything as broad as that of Justice Breyer’s dissent.

The important element is–contrary to the 9th Circuit’s characterization–Justice Kennedy found that the minimal notification given to Din ( her husband was inadmissible, without any substantiation) satisfied due process! Why? Read Justice Kennedy’s recitation of Kleindienst v. Mandel in its entirety. In light of AMK’s usual meandering prose about precedent, this recitation is a model of clarity.

The conclusion that Din received all the process to which she was entitled finds its most substantial instruction in the Court’s decision in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). There, college professors—all of them citizens—had invited Dr. Ernest Mandel, a self-described “ ‘revolutionary Marxist,’ ” to speak at a conference at Stanford University. Id., at 756, 92 S.Ct. 2576. Yet when Mandel applied for a temporary nonimmigrant visa to enter the country, he was denied. At the time, the immigration laws deemed aliens “who advocate[d] the economic, international, and governmental doctrines of World communism” ineligible for visas. § 1182(a)(28)(D) (1964 ed.). Aliens ineligible under this provision did have one opportunity for recourse: The Attorney General was given discretion to waive the prohibition and grant individual exceptions, allowing the alien to obtain a temporary visa. § 1182(d)(3). For Mandel, however, the Attorney General, acting through the Immigration and Naturalization Service (INS), declined to grant a waiver. In a letter regarding this decision, the INS explained Mandel had exceeded the scope and terms of temporary visas on past trips to the United States, which the agency deemed a “ ‘flagrant abuse of the opportunities afforded him to express his views in this country.’ ” 408 U.S., at 759, 92 S.Ct. 2576.

The professors who had invited Mandel to speak challenged the INS’ decision, asserting a First Amendment right to “ ‘hear his views and engage him in a free and open academic exchange.’ ” Id., at 760, 92 S.Ct. 2576. They claimed the Attorney General infringed this right when he refused to grant Mandel relief. See ibid.

The Court declined to balance the First Amendment interest of the professors against “Congress’ ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’ ” Id., at 766, 768, 92 S.Ct. 2576 (citation omitted). To do so would require “courts in each case … to weigh the strength of the audience’s interest against that of the Government in refusing a [visa] to the particular applicant,” a nuanced and difficult *2140 decision Congress had “properly … placed in the hands of the Executive.” Id., at 769, 92 S.Ct. 2576.

Instead, the Court limited its inquiry to the question whether the Government had provided a “facially legitimate and bona fide” reason for its action. Id., at 770, 92 S.Ct. 2576. Finding the Government had proffered such a reason—Mandel’s abuse of past visas—the Court ended its inquiry and found the Attorney General’s action to be lawful. See ibid. The Court emphasized it did not address “[w]hat First Amendment or other grounds may be available for attacking an exercise of discretion for which no justification whatsoever is advanced.” Ibid.

The reasoning and the holding in Mandel control here. That decision was based upon due consideration of the congressional power to make rules for the exclusion of aliens, and the ensuing power to delegate authority to the Attorney General to exercise substantial discretion in that field. Mandel held that an executive officer’s decision denying a visa that burdens a citizen’s own constitutional rights is valid when it is made “on the basis of a facially legitimate and bona fide reason.” Id., at 770, 92 S.Ct. 2576. Once this standard is met, “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against” the constitutional interests of citizens the visa denial might implicate. Ibid. This reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions pertaining to visa applications by noncitizens who seek entry to this country.

Simply put, Kennedy concludes, the only process that was due to Din was a notice that the visa was being denied on a specific-statutory ground.

Here, the consular officer’s determination that Din’s husband was ineligible for a visa was controlled by specific statutory factors. The provisions of § 1182(a)(3)(B) establish specific criteria for determining terrorism-related inadmissibility. The consular officer’s citation of that provision suffices to show that the denial rested on a determination that Din’s husband did not satisfy the statute’s requirements. Given Congress’ plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317 (1950), it follows that the Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.

As usual, Justice Kennedy’s opinion does leave some wiggle room open:

But unlike the waiver *2141 provision at issue in Mandel, which granted the Attorney General nearly unbridled discretion, § 1182(a)(3)(B) specifies discrete factual predicates the consular officer must find to exist before denying a visa. Din, moreover, admits in her Complaint that Berashk worked for the Taliban government, App. 27–28, which, even if itself insufficient to support exclusion, provides at least a facial connection to terrorist activity. Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on § 1182(a)(3)(B) encompassed. See 408 U.S., at 770, 92 S.Ct. 2576.

Unless the consular officer engaged in “bad faith,” that is, he did not faithfully apply the statutory factors, the court will not scrutinize the denial.

How does this precedent apply to Washington v. Trump.

  1. Through the Executive Order, the President declared that aliens from seven nations were “detrimental” to the interests of the United States, pursuant to 8 U.S.C. 1182(f).
  2. Citing the executive order, and other statutory authority, the State Department determined that it would not grant visas to nationals of these seven nations.
  3. Thus, a national from one of those seven nations who applies for a visa will not have it granted. (It will likely linger, rather than be formally denied). When such a pending visa application is denied, what reason is given? The President’s designation under 1182(f) that the “entry” of nationals from seven nations are “detrimental” to American interests. To paraphrase from Kennedy’s opinion, “The consular officer’s citation of that provision suffices to show that the denial rested on a determination that [the alien] did not satisfy the statute’s requirements.”
  4. This rationale, under both Mandel and Kennedy’s concurring opinion in Din, is “facially legitimate and bona fide.”
  5. Further, there is no evidence the consular officer denied a particular alien’s visa “in bad faith,” so there is no occasion to “look behind” the exclusion. That is, the consular officer did not single out the individual alien for improper reasons. Critically, Din does not concern looking behind the Executive’s policy itself, but rather the individual consular officer’s decisions. This point is entirely lost on the 9th Circuit panel, which extrapolates the concurring opinion to a facial attack on the executive’s policy vel non.

Further, weakening the panel’s analysis, Justice Kennedy writes that the due process analysis is informed by the statutory scheme.

Congress evaluated the benefits and burdens of notice in this sensitive area and assigned discretion to the Executive to decide when more detailed disclosure is appropriate. This considered judgment gives additional support to the independent conclusion that the notice given was constitutionally adequate, particularly in light of the national security concerns the terrorism bar addresses. See Fiallo v. Bell, 430 U.S. 787, 795–796, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); see also INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). And even if Din is correct that sensitive facts could be reviewed by courts in camera, the dangers and difficulties of handling such delicate security material further counsel against requiring disclosure in a case such as this. Under Mandel, respect for the political branches’ broad power over the creation and administration of the immigration system extends to determinations of how much information the Government is obliged to disclose about a consular officer’s denial of a visa to an alien abroad.

Once again, the failure of the panel to even mention the statute is inexcusable. If Congress affords the President a broad power to deny entry to classes of aliens–a power he arguably has under Article II–courts should assume that such denials are not subject to additional, unspecificed, due process rights. In other words, we should presume here that Congress acted constitutionally by giving the President an authority that was not subject to any judicial review. Further, under the first tier of Justice Jackson’s concurring opinion, all of these questions are subject to the laxest scrutiny. The sort of strict scrutiny applied by the panel is indefensible.

How does the panel get away from Mandel? By finding a distinction without a difference.

In fact, the Mandel standard applies to lawsuits challenging an executive branch official’s decision to issue or deny an individual visa based on the application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President’s promulgation of sweeping immigration policy.

That is, for sure, a distinction. Nothing in Mandel suggests that distinction is relevant. Indeed, Washington took another stab at distinguishing the case:

[Mandel] dealt with the President’s power to exclude “an unadmitted and nonresident alien,” i.e., someone who had no legal right to be here. Mandel, 408 U.S. at 762; Din, 135 S. Ct. at 2131. This case, by contrast, involves longtime residents who are here and have constitutional rights.

Making this arbitrary distinction even worse, the panel charged the Justice Department with “omit[ting] portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority.” Asserting the Acting Solicitor General misquoted Supreme Court precedent is a big, big deal. What are these omitted portions?  The panel does not tell us. I’ll do my best to divine what the panel meant. Here is Acting SG’s only quotation from Mandel:

Washington nevertheless argued that the district court should disregard the President’s stated rationale for issuing the Executive Order because Washington believed it was prompted by religious animus toward Islam. That argument is wrong, and it cannot be reconciled with Kleindienst v. Mandel, 408 US. 753, 770 (1972), which held that, “when the Executive exercises” immigration authority “on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion[.]” Cf. Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (noting that Mandel’s “reasoning has particular force in the area of national security”).

Here is the full quotation from Mandel:

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been *770 firmly established. In the case of an alien excludable under s 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address or decide in this case.

The phrase omitted is “this power negatively,” referring to the Attorney General’s decision not to give the Marxist professor an exemption from the normal policy of exclusion. Again, this distinction is paper thin. The panel’s claim that President Trump’s “sweeping immigration policy” is different from “application of a specifically enumerated congressional policy” would have benefited from an actual discussion of the statutory argument underlying 1182(f). To put it succinctly, the Executive Order was the exercise of statutory authority, just as in Mandel. True they are different statutes, but they both represent wind-ranging delegations of authority from Congress to the executive. The failure to even mention the statute, makes this distinction even more unpersuasive.

Let’s return to how the 9th Circuit cites Din:

applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting);

The word “might” is carrying a lot of weight there. Kennedy’s opinion established that the process provided to Din–the answer no without any explanation–was all the process that was due! There was no hearing. No opportunity to be heard. NO judicial review. Nothing. Yet, the panel (in reliance on Din) stated:

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.

Nothing in Kennedy’s opinion in Din, or Mandel three decades earlier, supports the panel’s decision.

It is noteworthy that Kennedy’s opinion recounts the “plenary” power doctrine, without any of his usual empathetic qualifications. It’s a shame that a dissenting opinion was not able to hoist the panel on its own petard. Hopefully a dissent from denial from rehearing en banc can accomplish just that.

For certain, Justice Kennedy can change his mind on the next case, but we should not pretend that his Din concurring opinion provides a clear, inescapable route to invalidate the executive order. This sentence from the concurring opinion is worth repeating in closing: “This reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions pertaining to visa applications by noncitizens who seek entry to this country.”

(Ed Kneedler, who argued Din, would have been far better prepared to answer the panel’s questions on this case than Auggie Flentje, who seemed unprepared to address these questions).

Update: Here is my thread which summarizes this post.

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Guest on NPR Weekend Edition with Nina Totenberg Talking about Trump’s Criticisms of Judges

On Thursday, I spoke with Nina Totenberg about President Trump’s criticisms of the judiciary, and how his remarks follow precedents set by President Obama. (I discuss that theme here). Half of those sentiments made it into the segment, for which I am grateful. You can listen here:

And here is a transcript of my remarks:

Presidents, for the most part, avoid public feuds with courts for a practical political reason.

“Trump’s statements are extremely self-defeating,” observes Josh Blackman, a constitutional law professor at South Texas College of Law Houston.

“The more he says the courts are biased or will rule against him because they’re stupid,” comments Blackman, “it subconsciously increases the chances that they will rule against him.”

There is a more serious reason Trump should avoid criticizing judges too, Blackman says. Under the U.S. system of three branches of government, the judicial branch — the courts — ultimately are the checks on the legislative and executive branches when they exceed or even abuse the limits of their power.

One portion that made it into the transcript, but not the audio segment, expressed my concern of what would happen if Trump’s judges display disloyalty by ruling against him:

Less than a month into Trump’s presidency, many leading lawyers and scholars are worried. Professor Blackman fears that if Trump’s nominee for the Supreme Court Neil Gorsuch is confirmed and ends up ruling against the president, the next Trump nominee would be “a crony.”

I always expected Trump to follow through on his promise to receive counsel from the Federalist Society to replace Justice Scalia. My concern, however, was always about subsequent nominations. I shared this sentiment with Josh Gerstein of Politico two weeks ago:

Some conservatives expect to be delighted by Trump’s pick this week but fear his fondness for the Federalist Society and one of the group’s leaders, Leonard Leo, may fade over time if the newly appointed judge crosses the Trump administration.

“I’m worried if he finds judges ruling ways he doesn’t like, he’ll simply stop listening to his advisers and start appointing his cronies,” Blackman said. “My only hope is that he will appoint as many judges as possible before he decides to stop calling Leonard Leo.”

I hope Trump stays strong on judges, and not just for SCOTUS. There are over 100 district and circuit vacancies. George W. Bush made his first batch of nominations on May 9, 2001. That slate included was all-star cast, including Michael McConnell, Jeff Sutton, John Roberts, and Miguel Estrada. Get going!




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

Despite the fact that the 9th Circuit did not address, in the least, the statutory arguments underlying the executive order, I will. Beyond its relevance to the Youngstown framework (to the extent the President is exercising his own inherent powers, augmented by delegated powers from Congress), it is counterintuitive that a court would leap to reach a difficult question about Due Process if the President’s power is constrained (at least in part) by a statute. For a refresher, see my earlier submissions (Parts I, II, and III).

This analysis starts with a detour to a classic film: Casablanca. You may recall that people who were trying to flee the Nazis were trying to obtain letters of transit. But having a letter of transit in hand was not enough. The traveller also had to make it past the Nazi checkpoints at the airport. Godwin’s Law aside, this framework is a helpful place to start to understand the relationship between two concepts in immigration law: a visa, and entry.

I wrote in the first part of my series:

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.

By no stretch did I suggest these pundits were “uniformed” (as Ian Samuel implies in a must-read post). Rather, the relationship between these concepts is not entirely clear, due in no small part to the fact that “entry” was used in the pre-1996 law, while “admissibility” is used in the post-1996 law. I used my posts not to make a definitive case one way or the other–not everything I write is advocacy–but to think through this very difficult concept. (Believe it or not, I use my lengthy blog posts not for your readership pleasure, but for my own thought process).

To dive deeper into this topic, let’s consider what the challenged executive order itself does, and does not do. It’s true, as Ian writes, that the executive order uses the phrase “visa” more than two-dozen times. But not a single word anywhere in the order actually directs the State Department to revoke visas. The title of Section 3 does indeed suggest that the Executive Order will suspend visas:

Sec. 3.  Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.

However, this title is unfortunate because nothing in the order does that. I suppose you can use the title of a provision to give effect to an otherwise ambiguous provision (in Jonathan Mitchell’s class I argued that AEDPA was designed to make the death penalty effective; it has done the exact opposite), but there is nothing ambiguous about what Section 3(a) does. It merely instructs the executive branch to undertake a review to determine what information is needed from a person seeking a visa:

(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

Let me repeat this point: nothing in the executive order compelled the revocation of visas. Why then were thousands of visas revoked? On the same day the executive order was signed, the Deputy Assistant Secretary of State, at the Bureau of Consular Affairs, signed a one page memorandum.

The memorandum cites several sources of authority to “provisionally revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Somalia, Sudan, Syria, and Yemen.”

First, it cites Section 212(f), which everyone from President Trump to Sean Hannity has been reciting of late:

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.

Second, it cites Section 221(i), which governs the Secretary’s authority to revoke a visa:

After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate the visa or other documentation from the date of issuance: Provided, That carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees, shall not be penalized under section 273(b) for action taken in reliance on such visas or other documentation, unless they received due notice of such revocation prior to the alien’s embarkation. 3/ There shall be no means of judicial review (including review pursuant to section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title) of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 237(a)(1)(B) .

This language is indeed broad. Visas can be revoked “at any time, in his discretion.” Further, there is no “judicial review” of a visa revocation, by habeas corpus, or otherwise.  (This provision severely undercuts the due process analysis offered by the 9th Circuit).

22 CFR 41.122 and 22 CFR 42.82 provide further guidance on what it means to provisionally revoke a visas for non-immigrant visas, and immigrant visas, respectively. Critically, in both cases, a provisional revocation–what the State Department memorandum accomplishes–is just that. Provisional, and subject to restoration later. Let us not forget that this policy is in effect for only 90 days, and was not meant to be a permanent policy.

Some have cited 8 U.S.C. § 1152(a)(1) as a prohibition on the revocation of visas based on nationality. Not quite. The provision states:

(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.

This provision only applies to the “issuance” of visas, not revocations. In other words, nothing in the statute prohibits the revocation of already-extent visas. There is no statutory prohibition on revoking visas based on a person’s nationality. This policy is, as far as I can tell, completely consistent with the statutory authority given to the Secretary by Congress.

Indeed, this analysis reconciles with one of Ian’s more memorable arguments: why would the Executive Order allow people with visas to travel to the United States, but not allow them to enter, and thus get stuck at Terminal 4. Under this order, they would not be able to. By provisionally revoking visas from nationals of those seven countries, the aliens would not be able to get on the plane in the first place. Thus, they would never get stuck in Terminal 4.

8 U.S.C. § 1152(a)(1) does, however, implicate changes made by the State Department with respect to issuing new visas. I’ll pause for a moment to note that Congress put no nationality-based restrictions on the revocation of visas; only on the issuance of visas. This is significant. The notion of excluding classes of people–even those already vetted–in times of crisis seems an inherent attribute of sovereignty. To return to an example I’ve used before, if U.S. relations with a certain country deteriorate, short of making a finding of inadmissibility for each national with a valid visa on a case-by-case basis, it would be far more convenient to revoke them as a class. This is also a better option than permitting them to travel to the United States, but deny them entry. (Do we establish a permanent detention center at the airport?). Ian uses, with great flourish, the example of “No Irish shall be admitted.” I think a better example would be a statement in 1942 that “No Germans shall be admitted,” even if they had a previously issued immigrant visa. These are provisions that are seldom invoked, but exist specifically for tough times. (To reiterate a point I made elsewhere, even in the absence of this statute, I think the President would have the Article II powers to accomplish just this; the statute is a reaffirmation of that inherent authority, which brings us within Jackson’s first Tier).

Back to “issuance.” As a threshold matter, Section 1152(a)(1) only applies to immigrant visas; not non-immigrant visas. Therefore, there is no statutory objection to the government denying non-immigrant visas based on nationality. (Yet another reason why the TRO was extremely overbroad). Therefore, my analysis will focus on a policy that restricts immigrant visas to aliens based on their nationality.

A State Department cable, released shortly after the executive order, sent this guidance to consular offices concerning immigrant visas:

(U) Immigrant Visas

7.  (SBU) The National Visa Center (NVC) will attempt to contact all applicants from the restricted countries with scheduled immigrant visa (IV) appointments for February in order to cancel their appointments.  In addition, NVC will not schedule nationals of these seven countries for March or April immigrant visa appointments.  For diversity visa (DV) applicants scheduled for interviews between February 5 and March 31, the Kentucky Consular Center (KCC) will notify applicants to check Entrant Status Check where they will see a message notifying them that their appointments will be rescheduled.  NVC and KCC are unable to identify IV and DV applicants who may hold dual nationality with a restricted country but who are interviewing under the nationality of a non-restricted country for purposes of cancelling or postponing appointment scheduling.   For applicants whom KCC and NVC are unable to contact, or otherwise unable to cancel or postpone, post should attempt to identify them at intake before their interview and notify them that their interviews must be rescheduled.  Posts will need to cancel remaining January appointments for affected applicants.

Does this look like a policy that, in the words of 8 U.S.C. § 1152(a)(1)(A), discriminates on the basis of a person’s “nationality” with respect to the “issuance of an immigrant visa”? It does. (Query for a moment whether enjoining the executive order, rather than the specific State Department cable which imposes the nationality-based visa policy, was the proper remedy; that is, could this cable exist even if the executive order was enjoined?).

However, subparagraph (A) is not the only relevant provision. Subparagraph (B) states:

(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.

Let’s go back to Section 3(a) of the Executive Order:

The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

Could it be that under the authority of Subparagraph (B), the Secretary can “determine the procedure” for issuing visas to nationals of those seven countries, “notwithstanding” the nondiscrimination provision in Subparagraph (A)? The text certainly permits that construction. But wouldn’t subparagraph (B) render subparagraph (A) a nullity, if it can be carved out of existence? Not necessarily. Subparagraph (A) establishes the general rule of nondiscrimination, but subparagraph (B) ensures that the Secretary has a degree of latitude to craft procedures, “notwithstanding” anything in the previous sentence. This is especially important with respect to concerns about national security.

If we continue reading the remainder of 8 U.S.C. § 1152, we will see how much the government can treat nationals of one country different than national of another country, “notwithstanding” subparagraph (A):

(2)Per country levels for family-sponsored and employment-based immigrants

Subject to paragraphs (3), (4), and (5), the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 1153 of this title in any fiscal year may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.

Section 1152 doesn’t mean that every national from every country will be treated similarly.  It means only that each country has the same opportunity to petition for a visa and receive a visa up to the limitation imposed by the screening procedures in 1152(a)(2).  Nationals from countries with larger number of visa applicants will have to wait longer than countries with smaller numbers. For example, the visa priority dates for Mexican nationals and Filipinos are significantly different across many of the priority categories.  This is because so many from those countries are seeking immigrant petitions–but the mass of people seeking petitions means that only a small number can be accommodated in any given year, given the numerical cap (7%) imposed on a single countries’ per annum visa allocation. To put this in constitutional terms, a national from Mexico is not similarly situated to a national to Mexico because of the congressional scheme.  A national from Mexico seeking entry would have a wait time two decades longer than for a similarly situated alien from another country, Switzerland perhaps, which will never be near the per-country cap. Applied in the domestic sphere, this would absolutely be a denial of equal protection, to treat classes different based on race. But not in the foreign realm. Does this policy disfavor Mexican nationals from being issued visas, as compared to Swiss nationals. Absolutely. But those are the policies adopted by the Secretary, pursuant to direct congressional delegations, and which have been in effect for decades.

And what if a national of a disfavored nation disagrees with those vetting procedures that implicates nationality, imposed under subparagraph (B)? Too bad. As I wrote in the last post–citing a 1997 D.C. Circuit decision by Judge Sentelle, and joined by Judged Randolph and Chief Judge Edwards–these provisions are not subject to judicial review.

First, the broad language of the statute suggests that the State Department policy is unreviewable. Congress has determined that “[e]very alien applying for an immigrant visa and for alien registration shall make application therefor in such form and manner and at such place as shall be by regulations prescribed.” 8 U.S.C. § 1202(a) (emphasis added). This section grants to the Secretary discretion to prescribe the place at which aliens apply for immigrant visas without providing substantive standards against which the Secretary’s determination could be measured. Plaintiffs argue that there is a standard against which to measure the Secretary’s decision in the prohibition against nationality discrimination contained in 8 U.S.C. § 1152. That argument is untenable after the adoption of section 633. That enactment made clear that the prohibition against nationality discrimination does not apply to decisions of where to process visa applications. These determinations are left entirely to the discretion of the Secretary of State
In addition, the nature of the administrative action counsels against review of plaintiffs’ claim. By way of comparison, the Supreme Court has held that the Food and Drug Administration’s refusal to take enforcement action is unreviewable because it “involves a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Heckler, 470 U.S. at 831, 105 S.Ct. at 1655–56. Similarly, in this case the agency is entrusted by a broadly worded statute with balancing complex concerns involving security and diplomacy, State Department resources and the relative demand for visa applications. However, in this case the argument for executive branch discretion is even stronger. By long-standing tradition, courts have been wary of second-guessing executive branch decision involving complicated foreign policy matters. See, e.g, Williams v. Suffolk Ins. Co., 38 U.S. 415, 420, 13 Pet. 415, 10 L.Ed. 226 (1839); Garcia v. Lee, 37 U.S. 511, 517–18, 520–21, 12 Pet. 511, 9 L.Ed. 1176 (1838); Foster v. Neilson, 27 U.S. 253, 307–310, 2 Pet. 253, 7 L.Ed. 415 (1829). As we noted in another context, “where the President acted under a congressional grant of discretion as broadly worded as any we are likely to see, and where the exercise of that discretion occurs in the area of foreign affairs, we cannot disturb his decision simply because some might find it unwise or because it differs from the policies pursued by previous administrations.” DKT Memorial Fund Ltd. v. Agency for Int’l Dev., 887 F.2d 275, 282 (D.C.Cir.1989). In light of the lack of guidance provided by the statute and the complicated factors involved in consular venue determinations, we hold that plaintiffs’ claims under both the statute and the APA are unreviewable because there is “no law to apply.”
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 104 F.3d 1349, 1353 (D.C. Cir. 1997) (Sentelle, Edwards, and Randolph).

One parting note about this case, titled Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs: Ian cites an earlier instance of the case from 1995, that was vacated by the Supreme Court after the enactment of the 1996 immigration law. (Westlaw shows a red flag for the case he referenced).

Here is the per curiam opinion from the Court:

The judgment is vacated and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit for further consideration in light of Section 633 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRA) (enacted as Division C of the Department of Defense Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996)).

As I noted at the outset, this material is very complicated and is subject to decades of caselaw under both regimes. I don’t pretend this issue is clear-cut. But the court of appeals grossly erred by leaping over the issue, which could have potentially resolved much of the case.

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28(j) Letter Filed in 3D-Printed Gun Case, Citing Washington v. Trump

Perhaps the most stunning aspect of the panel’s decision in Washington v. Trump was that it applied a standard of review approaching strict scrutiny to assess whether the executive branch’s actions in the realm of foreign affairs violated the quasi-rights of aliens with no connection to the United States.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree.

Why was this standard so stunning, for me at least? Because barely 6 months earlier, the 5th Circuit applied a standard approaching rational basis review to assess whether the executive branch’s actions in the realm of domestic affairs violated the First Amendments rights of U.S. Citizens. I speak, of course, about Defense Distributed v. Department of State, a case for which I am co-counsel.

In that decision, the majority opinion upheld a prior restraint on free speech based solely on the government’s vague assertions that someone, somewhere, could download Defense Distributed’s files, and use them to create a gun, and commit acts of terrorism. Has it ever happened before? No. But the risk that it could happen is sufficient to violate the First Amendment. Consider Judge Davis’s analysis, which piles inference-upon-inference in classical rational basis mode:

If we reverse the district court’s denial and instead grant the preliminary injunction, Plaintiffs-Appellants would legally be permitted to post on the internet as many 3D printing and CNC milling files as they wish, including the Ghost Gunner CNC milling files for producing AR-15 lower receivers and additional 3D-printed weapons and weapon parts. Even if Plaintiffs-Appellants eventually fail to obtain a permanent injunction, the files posted in the interim would remain online essentially forever, hosted by foreign websites such as the Pirate Bay and freely available worldwide. That is not a far-fetched hypothetical: the initial Published Files are still available on such sites, and Plaintiffs-Appellants have indicated they will share additional, previously unreleased files as soon as they are permitted to do so. Because those files would never go away, a preliminary injunction would function, in effect, as a permanent injunction as to all files released in the interim. Thus, the national defense and national security interest would be harmed forever. The fact that national security might be permanently harmed while Plaintiffs-Appellants’ constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.

This is in no sense the correct analysis for upholding a prior restraint.

In light of the “no evidence” standard imposed in Washington v. Trump, our legal team deemed it appropriate to alert the Fifth Circuit of this new authority. Through our 28(j) letter, we articulated the fact that if the quasi-rights of non-citizens can only be violated by showing actual evidence that such aliens have committed acts of terrorism, then certainly the constitutional rights of U.S. citizens cannot be violated by allegations to vague and unspecified threats. The government must submit evidence that a foreigner has in fact downloaded the files, and used them to engage in an act of violence against American interests. Anything less would not be sufficient to meet this standard. (Cutting to the chase, no such crime has ever been committed; that is why the prior restraint is bunk).

As our letter explains:

Of course, noncitizens have no constitutional right to enter the United States. Yet in Washington, the purported harm to public universities in being temporarily denied association with people from Iran, Iraq, Somalia, Libya, Yemen, Syria and Sudan outweighed the President’s national security concerns about the current level of vetting for such nationals.

Here, the Government is plainly infringing on the fundamental First Amendment speech rights of American citizens—also based on nothing more than the assertion of a public interest. Universities, public and private, have also objected to the challenged prior restraint.

The 9th Circuit’s decision does not exist in a vacuum. It established an absolutely bonkers standard of review to consider the quasi-rights of non-citizens. If precedents matter, then the actual rights of citizens should be that much harder to violate.

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Why did a Judge on the 9th Circuit Make A Sua Sponte Request for En Banc When the White House wants to go back to the District Court?

Today, moments before I was scheduled to go live on Fox Business to talk about the different choices confronting the Trump administration, the Ninth Circuit threw a curveball:

Filed order (SIDNEY R. THOMAS): A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16. The supplemental briefs shall be filed electronically and consist of no more than 14,000 words.

My initial reaction (which I hinted at in my earlier post) was that one of the conservative judges requested an en banc vote. Why? Judge Kozinski does love his dissentals. Really, he could simply copy and paste Michael McConnell’s devastating evisceration of the panel opinion, and that would suffice.

After some reflection, there may be another explanation. The best thing that could happen to the Trump Administration would be to withdraw the appeal (it will go nowhere with this panel), repeal and replace the executive order, and try again in the district court. Under the voluntary cessation doctrine, Judge Robart could probably keep jurisdiction, but he would be fully equipped to hold an evidentiary hearing to determine the sufficiency of the record. But in any event, the Trump Administration has absolutely nothing to gain by sticking around the Ninth Circuit. Shortly before the sua sponte en banc call went out, the White House revealed that indeed it was its preference to go back to the district court. (This is probably not what President Trump meant by “See you in court,” but it works).

So why the en banc call? I have a sinking suspicion that a liberal member of the court (you know who) did this as a defensive move. Once the case is remanded back to Judge Robart, he has full control. But so long as a sua sponte en banc call is pending, the Court of Appeals controls the case. It can linger indefinitely, even as other district courts (such as EDVA) resolve the matter. I can imagine a circumstance where the Trump Administration issues a new executive order, and then the en banc court grants review. Citing the voluntary cessation doctrine, the court says it will resolve the legality of the order. That posture gives the Ninth Circuit a head-start on the other circuits. This shortcuts the possibility that the district court in the interim modifies the scope of the temporary restraining order.

This may be downright asinine, but the sequencing is so bizarre: hours after the White House announces it wants to go back to the district court, then an en banc call is made.


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