The district court in Maryland should be commended for actually engaging with the Immigration and Nationality Act. Alas, its analysis in International Refugee Assistance Project v. Trump is incomplete.

To begin, the court cites a D.C. Circuit Decision from 1995 to establish that the parties have standing.

The United States Court of Appeals for the District of Columbia Circuit has found that U.S. citizens and residents have standing to challenge the denial of visas to individuals in whose entry to the United States they have an interest. See Abourezk, 785 F.2d at 1050 (finding that U.S. citizens and residents had standing to challenge the denial of visas to foreigners whom they had invited to “attend meetings or address audiences” in the United States); Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 45 F.3d 469, 471 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). In Legal Assistance, the court specifically held that U.S. resident sponsors had standing to assert that the State Department’s failure to process visa applications of Vietnamese citizens in Hong Kong violated the provision at issue here, 8 U.S.C. S1152. Id. at 471. The court articulated the cognizable injury to the plaintiffs as the prolonged “separation of immediate family members” resulting from the State Department’s inaction. Id.

The court notes that it was “vacated on other grounds,” but those other grounds are really, really relevant to the Trump executive order. For reasons I discuss here, Congress responded to the 1995 decision by amending the Immigration and Nationality Act.  Specifically, it added subparagraph (B) to Section 1152(a)(1), an anti-discrimination provision that has been on the books since 1965.

(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.

Peter Marguiles offers more background:

The Maryland court interpreted the INA provision in a parched and parsimonious fashion wholly contrary to its text and purpose. The provision at issue gives the Secretary of State latitude in determining “procedures for the processing of immigrant visa applications” and the suitable venues for visa processing. Congress passed this provision in 1996 (see Josh Blackman’s post here) to override a 1995 D.C. Circuit decision that struck down a State Department policy barring the filing of Vietnamese asylum applications in Hong Kong.

The State Department had made the change after it concluded that the Hong Kong venue was encouraging unmanageable migration patterns and frivolous asylum claims. The 1995 D.C. Circuit decision held that the venue change had violated 8 U.S.C. 1152(a)(1)(A), which bars discrimination in the issuance of immigrant visas. The State Department measure clearly singled out Vietnamese asylum applicants for more rigorous procedures, which almost certainly resulted in a greater risk of repatriation to Vietnam but also encouraged manageable migration and promoted orderly asylum adjudication. In response to the D.C. Circuit’s ruling, Congress in 1996 enacted subsection (B), which gave the State Department flexibility in visa processing to counter courts’ unduly broad readings of subsection (A). The Supreme Court then remanded the case to the D.C. Circuit, which upheld the venue change as a processing decision that Congress had delegated to the executive branch.  See Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 104 F.3d 1349 (D.C. Cir. 1997).

The Maryland court’s statutory interpretation analysis focuses almost exclusively on subparagraph (a) and how it interacts with Section 1182(f). Specifically, it recognizes that 1182(f) concerns entry while 1152(a) concerns visa issuance.

Accordingly, an executive order barring entry to the United States based on nationality pursuant to the President’s authority under S 1I82(f) does not appear to run afoul of the provision in S 1I52(a) barring discrimination in the issuance of immigrant visas. . . .  Under the plain language of the statute, the barring of immigrant visas on that basis would run contrary to S1I52(a). Just as S 1I52(a) does not intrude upon the President’s S 1I82(f) authority to bar entry to the United States, the converse is also true: the S 1182(f) authority to bar entry does not extend to the issuance of immigrant visas.

This conclusion, which echoes my position from the outset, conflicts with other scholars who have maintained that entry and visas are a bundled whole.

The second executive order, unlike the first, expressly countenances the denial of visas.

Although the Second Executive Order does not explicitly bar citizens of the Designated Countries from receiving a visa, the Government acknowledged at oral argument that as a result of the Second Executive Order, any individual not deemed to fall within one of the exempt categories, or to be eligible for a waiver, will be denied a visa. Thus, although the Second Executive Order speaks only of barring entry, it would have the specific effect of halting the issuance of visas to nationals of the Designated Countries.

As a result, 1152 is implicated. The court relies on the canon that the specific controls the general, and thus any conflict between 1152(a) and 1182(f), the former controls.

I have no problem with that principle of statutory interpretation. Where I part company with the court, is on whether 1152(a) is actually being violated, which turns on the construction of subparagraph (B). The court writes:

The Government further argues that the President may nevertheless engage in discrimination on the basis of nationality in the issuance of immigrant visas based on 8 U.S.C. s 1152(a)(1)(B), which states that “[n]othing in [s 1152(a)] 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.” As that statutory provision expressly applies to the Secretary of State, it does not provide a basis to uphold an otherwise discriminatory action by the President in an Executive Order. Even if the Court were to construe Plaintiffs’ claim to be that the State Department’s anticipated denial of immigrant visas based on nationality for a period of 90 days would run contrary to S 1152(a), the text of S 1152(a)(l)(B) does not comfortably establish that such a delay falls within this exception. Although S1152(a)(l)(B) specifically allows the Secretary to vary “locations” and “procedures” without running afoul of the non-discrimination provision, it does not include within the exception any authority to make temporal adjustments. Because time, place, and manner are different concepts, and S1152(a)(l)(B) addresses only place and manner, the Court cannot readily conclude that S1152(a)(l)(B) permits the imminent 90-day ban on immigrant visas based on nationality despite its apparent violation of the non-discrimination provision of S 1152(a)(1)(A).

Here, the court advances two new arguments that I’ve not seen elsewhere–even from scholars who disagree with me on the statutory framework.

First, the court finds that because the provision is addressed to the “Secretary of State,” and not the President, it “does not provide a basis to uphold an otherwise discriminatory action by the President in an Executive Order.” This argument is perplexing. The President’s order told the Secretary of State to implement a new policy. The Secretary of State will implement that policy. This argument fails to account for the fact that the Secretary of State at all times serves as the President’s pleasure. Anything the Secretary does is under the direction, if not the order, of the President. I don’t think the court actually buys this argument, because in the next sentence it introduces the real argument distinction: subparagraph (b) does not authorize a 90 day pause.

This argument is certainly new. As euphonic as time-place-manner is to my constitutional ear, I’m afraid it doesn’t hold water. Why on earth must Congress in an immigration separate time, place, and manner into separate elements? Even in constitutional law, the place and manner prongs often collide. There is absolutely nothing in the text or history of the statute suggesting that “procedures” should be so narrowly confined. This is a broad, broad, power, that embraces the power of the government to decide to readjust the process, and put a temporary pause on adjudications. The capaciousness with which the court considers statements made by the President to ascertain purpose stands in stark contrast with the court’s miserly approach to statutory interpretation in an area where the President has wide-ranging authority.

Peter Margulies adds:

Instead of viewing 8 U.S.C. 1152(a)(1)(B) as a limit on judicial intrusion into visa processing, the Maryland court read the statute in a strained fashion that failed to heed its text or purpose. The court viewed subsection (B) as not permitting “temporal adjustments” to visa processing, such as the pauses required under the revised EO. According to the court, subsection (B) allowed executive modification of visa processing “place and manner,” but not “time.” This limit is painfully artificial. Courts routinely view incidental restrictions on time, place, and manner as appropriate in other contexts, including free speech. The authority to speed up or slow down visa processing is an integral part of decisions on visas. Country conditions, such as the intensity of an armed conflict within a state’s territory, can and frequently do slow down visa processing, as the government noted to the Supreme Court in the Vietnamese Asylum case. To be sure, a permanent and pronounced slowdown in visa processing could be tantamount to a visa denial, thus triggering concerns about discrimination barred by subsection (B)’s statutory companion, subsection (A). However, a relatively brief pause in visa grants does not rise to that level.

For further support of my reading, listen to stalwart Deputy SG Edwin S. Kneedler explain the issue to Justice O’Connor back in 1996, with repeated references to “procedures” that countenance wide-ranging classifications based on nationality (13:50).

Alas, DOJ did itself no favors, and devoted only one sentence to subparagraph (b) in its brief:

Even where Section 1152(a)(1)(A) applies, moreover, Congress made clear that it does not “limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications,” id. § 1152(a)(1)(B), which at most is all the Order’s temporary pause does.

For reasons I don’t fully understand, the United States did not push the subparagraph (b) argument further. During Chad Readler’s colloquy with Judge Robart, starting around 30:00, he does not mention subparagraph (b).

On appeal, the government should focus much more on subparagraph (b). If the government wins on subparagraph (b), the government wins the statutory case, regardless of what the canons of construction dictate. Solicitor General Days’s brief (p. 17) in Vietnamese Asylum Seekers is directly on point.

In any event, Section 1152 only applies to immigrant visas. Refugees and other aliens do not enter on immigrant visas, so this issue is not conclusive.

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