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

February 6th, 2017

In this post, I will continue my discussion the statutory legality of President Trump’s executive order on immigration. (See Parts I and II). Again, I am not talking about the constitutional issues. Here, I will discuss another aspect of the executive order not addressed in my previous post: the issuance of visas.

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.

Some have argued that this statute (enacted in 1965) trumps 8 U.S.C 1182 (f) (enacted in 1952). The latter 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.
The later-in-time canon only applies if the statutes are in tension. They aren’t.
First, 1152(a)(1) only affects the issuance of visas. It does not affect the broader power over “entry.” I discuss this topic at length in Part II. Thus, the statutes are not at all in tension with respect to Section 3(c) of the executive order, which limits “entry.” Congress gave the President the power to deny visas to any class of aliens he deems detrimental to the interests of the United States. Thus, if an alien is issued a visa, he can be denied entry, even at the last minute as he is about to cross into the airport terminal (for example, if an agent determines he submitted fraudulent information on his application).

Second, 1152(a)(1) implicates the “issuance of visas.” But it does not, as far as the text goes, concern the revocation of visas. I realize this is a thin distinction, but to the extent the government has revoked visas (the precise number is up for debate), nothing in this provision prohibits it from doing so based on nationality. One could imagine a scenario where the United States and another country enjoy friendly relations, and a visa is issued. At some point in time, those relations deteriorate, and perhaps a state of war with that nation is even declared. It would unconscionable if the Secretary could not decide to revoke all visas issued to citizens of that nation. This would be an explicit discrimination based on nationality.

Third, subparagraph (B) seems, at least based on my own reading, to allow the Secretary to adopt “procedures for the processing of immigrant visa applications” that could explicitly be based on national origin. That is, subparagraph (B) states that subparagraph (A) “shall [not] be construed to limit” the Secretary’s authority. Some have argued that reading subparagraph (B) in this fashion should render (A) a nullity. Hardly. The general policy is that visas should be issued without concern for nationality. But when the Secretary deems it necessary (perhaps for national security concerns), he can adopt procedures for issuing visas based on nationality. To modify my earlier hypothetical, following a declaration of war against country X, it would be unconscionable to tell the Secretary that he cannot cease issuing visas to nationals of that country. Again, this would be a facial form of nationality discrimination. This reading is buttressed by 1182(f), which gives the Secretary the ultimate trump card: deny entry to an alien who has a validly issued visa based on national security concerns. The greater power to deny entry includes the far lesser power to deny a visa.

In short, the executive order effects a temporary stoppage of aliens (under 1182(f)), and during that time, instructs the Secretary to exercise his power under 1152(a)(1) to enact a vetting program with different standards for specific countries.

Again, nothing in text or judicial precedent seems to foreclose the order. Please send me any other arguments you’ve come across. And to repeat a point I made earlier, 1152 only applies to “immigrant visas.” Refugees, and those who habe non-immigrant visas, cannot avail themselves of this provision at all.

Further, I don’t know 1152 is is even subject to judicial review. I could not find any precedents that are directly on point, but the D.C. Circuit did determine that the latter portion of Subparagraph (B)–that is, determining ” where such applications will be processed”–was not subject to judicial review under the A.P.A. There is “no law to apply.”

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).

The reasoning that applies to the latter portion of Subparagraph (B) (about location) would seem to apply equally to the former portion–“procedures for the processing of immigrant visa applications.” In other words, the Secretary can consider nationality when determining the process for approving immigrant visas.