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

February 5th, 2017

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?