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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.

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.

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.

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.

For the fourth night in a row, I was a guest on the Fox Business Network. Moments before I took the air with Charles Payne, the Ninth Circuit issued a sua sponte call for en banc briefing. So I did my best to explain what that meant.

The White House has told the media that the administration will not seek en banc review, or a stay from the Supreme Court. (These were awful options). Rather, they will go back to the district court How can this be done? As Professor Jonathan Hafetz wrote, if the government withdraws its appeal, the Ninth Circuit’s proceedings are halted, and the case goes back to Judge Robart who, presumably, can hold an evidentiary hearing for the preliminary injunction.

But what happens if the executive order is withdrawn? After all, the January 27 order on its face was only designed to last for 90 days until a permanent order was issued. There is nothing stopping the President from simply rescinding it early.

Would doing so moot the case? Not necessarily. Under the “voluntary cessation” doctrine, a case does not necessarily become moot if the challenged conduct–though ceased–could recur.

Justice Alito summarized the doctrine in his recent dissent in Campbell Ewald v. Gomez (2016), which has been relied on in Knox, Already, and (most famously) Friends of the Earth.:

Our “voluntary cessation” cases provide useful guidance. Those cases hold that, when a plaintiff seeks to enjoin a defendant’s conduct, a defendant’s “voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Service Employees, 567 U.S. ––––, –––– – ––––, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012). To obtain dismissal in such circumstances, the defendant must “ ‘bea [r] the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Already, supra, at ––––, 133 S.Ct., at 727 (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). We have typically applied that rule in cases involving claims for prospective relief, see Knox, supra, at ––––, 132 S.Ct., at 2287–2288, but the basic principle easily translates to cases, like this one, involving claims for damages: When a defendant offers a plaintiff complete relief on a damages claim, the case will be dismissed as moot if—but only if—it is “absolutely clear” that the plaintiff will be able to receive the offered relief. Already, supra, at ––––, 133 S.Ct., at 729.1

…

Campbell urges that a plaintiff could simply move to reopen a dismissed case if a defendant fails to make good on its offer. Reply Brief 10. I assume that is true. But the prospect of having to reopen litigation is precisely why our voluntary cessation cases require defendants to prove, before dismissal, that the plaintiff’s injury cannot reasonably be expected to recur. I see no reason not to impose a similar burden when a defendant asserts that it has rendered a damages claim moot.

Unless the Trump administration can “”bea [r] the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur,'” then the case will not be dismissed as moot. In other words, Judge Robart may yet have an opportunity to thoughtfully explain why his nationwide injunction was proper.