The Legality of the 3/6/17 Executive Order, Part II: The Due Process Clause Analysis

March 12th, 2017

On March 6, 2017, President Trump issued a new executive order on immigration that superseded an order he signed on January 27. For an in-depth discussion on the first order, please see my two-part series on Lawfare (Part I and Part II) and my forthcoming essay in the Texas Law Review See Also, titled The 9th Circuit’s Contrived Comedy of Errors in Washington v. Trump.

I will analyze the new executive order in three parts. In Part I, I addressed how the new order comported with the Immigration and Nationality Act.  In this part, I will assess how the new order comports with the Fifth Amendment’s Due Process clause, and related issues. Part III will analyze how the new order fares under the Establishment and Equal Protection clauses.


Who Is Covered?

The most significant change from the old order to the new order is the scope of the entry-ban. Section 3(a) denies entry to foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who fall into three categories:

(i) are outside the United States on the effective date of this order [March 16, 2017];

(ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and

(iii) do not have a valid visa on the effective date of this order.

In effect, if an alien in these categories did not have a visa prior to the date of the first executive order he will (probably) be subject to the new executive order. However, Section 3(b) riddles this general rule with exceptions, as foreign nationals in the following six categories are not subject to the entry-ban:

(i) any lawful permanent resident of the United States;

(ii) any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;

(iii) any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;

(iv) any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;

(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or

(vi) any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

These six exclusions are significant. First, the order expressly excludes lawful permanent residents (LPRs) who hold green cards. Now there is no doubt that LPRs from these six nations can gain admittance to the United States. Second, aliens from these six nations—including nationals granted asylum or refugees who have “already been admitted”—will not be denied entry. Third, dual-citizens with citizenship from one of the six nations can be admitted if they travel under their other passport. (For example, an alien with British and Iranian citizenship would be allowed entry using his U.K. passport). These categories cover wide swaths of nationals who have some tangible interest in the United States, either through a travel document provided by the government, or in the case of refugees, those who have already been admitted.

But wait, there’s more. Section 3(c) vests consular officers with the “discretion” to grant waivers beyond those aliens categorically exempted by Section 3(b):

Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner’s delegee, may, in the consular officer’s or the CBP official’s discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest.

While the phrase “undue hardship is not defined,” section 3(c) provides nine examples where “case-by-case waivers could be appropriate.” If the Deferred Action for Childhood Arrivals (DACA) guidance documents taught us anything, this discretion will likely be implemented mechanically.

The first “hardship” category is significant.

(i) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity[.]

This category concerns, among others, foreign students who were previously in the United States and seek to return. In litigation before the Ninth Circuit, the state of Washington derived its strongest basis for standing from foreign students who attended the state’s universities and could not re-enter. This class of aliens is not categorically guaranteed a visa or entry, but in light of the memorandum, the government could make a compelling case that a facial challenge on behalf of such students should fail. Rather, an as-applied challenge would be the appropriate vehicle. Specifically, the government could assert that a student from one of the six nations would likely be admitted, unless his or her entry would “pose a threat to national security.”

However, this suggested-waiver would not assist aliens who seek to become students but were never previously admitted to the United States. Washington could assert standing on behalf of these prospective students, but, for reasons I will develop below, their due process rights are nonexistent because of their lack of prior connection to the United States.

The fourth category is potentially even more significant.

(iv) the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship[.]

Even if a foreign national from one of the six nations had never entered the United States, but seeks a visa and entry “to visit or reside with a close family member,” he would likely qualify for a hardship waiver. This category seeks to address the facts at issue in Kerry v. Din, where a wife (who was a citizen) filed suit after her husband was denied a spousal visa due to alleged terrorist connections. This hardship would ensure that spouses and other close relatives would not be denied a visa and entry because of this order. (Of course, they could be denied a visa or entry under other laws predating this order).

In light of this policy statement, I am somewhat perplexed that the Hawaii Attorney General included as a plaintiff the son-in-law of a Syrian national who “does not currently hold a visa to enter the United States” (p. 6). The complaint states that the March 6, 2017 order will prevent the mother-in-law “from obtaining a visa to visit or reunite with her family in Hawai‘i.” The complaint provides that the son-in-law “fears that his mother-in-law will, once again, be unable to ‘enter’ the country.” The facts relate that her application is currently pending. Unless a consular officer determines that the mother-in-law would “pose a threat to national security,” the guidance from the President suggests that a visa will issue.

Rather than suing the government now, wouldn’t the proper path be for the mother-in-law to wait and see if the visa is denied? (The complaint does not assert any emergency health condition or other exigency that would render delay impossible). The claim does not seem ripe. To put this in administrative terms, the parties have failed to exhaust their remedies. Indeed, I could not find a single case where next-of-kin was able to file suit to complain while a visa application was pending. Nothing on the face of the complaint suggests why the fear of denial is credible, especially in light of the fourth waiver category. Immigration lawyers often complain that delays in visa processing are interminably long—but they cannot go to federal court to compel a decision.

The court should not grant preliminary relief on this premature claim. If the visa is denied, presumptively her son-in-law could bring an as-applied suit. (I’ll reserve judgment on whether that suit would succeed, but at least it would be ripe). If the State Department issues the mother-in-law a visa, promptly, this plaintiff’s claim becomes moot and should be dismissed.


Capping Refugee Entry

The executive order categorically excludes lawful permanent residents, as well as other aliens with strong connections to the United States. The executive order further presumptively excludes students who were already admitted to the United States, as well as aliens who are close family members to U.S. persons. Who is left over? Aliens from these six nations who have never entered the United States, have no relatives in the United States, and have never received any travel document from the United States. The category of aliens who are actually excluded, and who would actually seek to visit the United States—that is, not just for purposes of ginning up standing in these lawsuits—is likely small. (The narrow reach of this executive order, in light of its negligible national security benefits, continues to leave doubt in my mind about the wisdom of this policy, but that is a separate question from whether it is lawful).

Primarily, this order will affect refugees from the six-named nations who have not yet entered the United States. Making this point explicit, Section 6 “realign[s]” the refugee admissions program. Section 6(a) provides that for 120 days from the date of the order, “[t]he Secretary of State shall suspend travel of refugees into the United States.” Further, for 120 days, “the Secretary of Homeland Security shall suspend decisions on applications for refugee status,” subject to waivers so long as their entry “is in the national interest and does not pose a threat to the security or welfare of the United States.” Refugees who have not yet been admitted have zero due process liberty interests. Further, they lack any statutory right to enter. Because refugees do not receive visas, 8 U.S.C. § 1152(a)(1) is inapplicable.

Beyond this temporary suspension of entry and processing of refugee applications, Section 6(b) determines that under Section 212(f) of the INA, the “entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any entries in excess of that number.” David Cole of the ACLU asserts that this reduction is illegal.

It maintains the first executive order’s unilateral reduction of the annual limit on refugee admissions from 110,000 to 50,000. That reduction, imposed unilaterally by the president without consultation with Congress, is unauthorized. The immigration statute does not allow the president to order a mid-year reduction in the level of refugee admissions—which no president has ever done before—much less to do so without consulting Congress . . . . In unilaterally cutting the refugee cap, at a time of virtually unprecedented world need for refugee placements, President Trump is not only acting unilaterally but in violation of the statute that establishes the process for setting the cap in the first place.

Cole is indeed correct that President Obama’s budget established that for the current fiscal year, as many as 110,000 refugees could be admitted. But there is absolutely no statutory requirement that the President must admit that many.

8 U.S.C. § 1157(a)(2) provides:

Except as provided in subsection (b), the number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest. (emphasis added).

The statute provides that the number submitted by the President is the number of “refugees who may be admitted,” not “shall be admitted.” This is a typical case in immigration law where Congress establishes a ceiling, but not a floor. In other words, Congress agreed to admit no more than 110,000 refugees this fiscal year, but in no sense did it require the executive branch to admit precisely that number. The concern was about accepting too many, not too few. Imagine if, for whatever reason, the number of refugee applications was less than the number submitted to Congress. (World peace emerges!). If there aren’t enough applicants, the President could in no sense meet that threshold. Would he be breaking the law for not admitting enough refugees? Of course not. (Here, I am focusing only on the statutory argument, and tabling for a moment the challenger’s pretextual arguments, which invariably bleed into the Establishment Clause; that is, the reduction is motivated by anti-Muslim animus. Stay tuned for Part III.).

Further, even if the statute did mandate that a certain number of refugees must be admitted, the President would have a very, very strong Article II override argument that being required to admit a certain number of refugees, in light of changed world conditions, would encroach on his executive powers. For example, imagine if when the budget was approved, relations between the United States and Syria were conducive to the admission of refugees. Mid-year, relations deteriorate, and the President determines that it is no longer in the American interest to admit Syrian refugees. Under the President’s Article II powers, a statute that required their admission would be unconstitutional. This conclusion is bolstered by Zivotofsky II. If Congress could not command the President to “recognize” a foreign nation in the form of domestic passports, it cannot be the case that Congress must require the President to admit refugees from certain nations, in light of changed diplomatic concerns. Section 1157 should be read to avoid these constitutional difficulties.

The converse is also true. If the President determines that the interests of the United States compels the admission of more refugees—such as during a war in an allied nation—I don’t think any act of Congress could stop that. To that end, 8 U.S.C. § 1157(b) specifically countenances the President admitting additional refugees in response to “unforeseen emergency refugee situations.”

This is not a rigid statute, but one that permits the President to act unilaterally to admit fewer refugees as the circumstances dictate, and to act unilaterally to admit more refugees in the event of an emergency.


To Whom Is Process Due

Beyond refugees, there exists a subset of nationals from these six nations who have never entered the United States, have no connection or relatives in the United States, but who now assert an interest in travelling to Washington. Maybe a student in Syria who seeks to pursue a degree at the University of Washington? Or an Iranian engineer who seeks to work at Microsoft? You get the gist. Certainly Washington can locate such individuals who can sign affidavits to that affect. (That Washington hasn’t yet filed an amended complaint suggests that they are scrambling to find aliens who actually face a credible risk of being denied entry based on the new executive order—easier said than done).

Are such individuals protected by the Due Process clause? That is, do they have some cognizable liberty interest that demands due process of law? The Ninth Circuit explained that its holding in Washington v. Trump would persist even if “lawful permanent residents were no longer part of this case.” There is zero precedent to support this claim—well, other than the panel’s own ipse dixit. (See my earlier Lawfare post for an explanation of why the Ninth Circuit’s reasoning was utterly unpersuasive and, at times, misleading).

The judges attempt to fudge this lack of precedent, noting that “The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens,” where “these categories of aliens” applies (presumably) to all aliens affected by the Executive Order, other than LPRs. This burden is manufactured. No court has ever held that aliens that are seeking entry, who have zero connection to the United States, or its residents, have due process rights.  Indeed, the leading cases Washington relied on—Kleindienst v. Mandel and Kerry v. Din—both involved cases where aliens had a close business or familiar relationship with U.S. citizens. If the Ninth Circuit truly wants to hold that aliens who have zero past connection have due process rights if a visa is denied, that would be a revolutionary change to immigration law. No doubt, some advocates would welcome such a change, but we should be frank that this is not the proverbial one-way ticket. There is no way to gerrymander such a ruling, and limit this principle to the context of the executive order. Aliens from around the world could now avail themselves of Article III courts to seek visas and entry.

Finally, with respect to due process, the Ninth Circuit held, without citing any authority, that aliens overseas—even those with zero prior connection to the United States—are entitled to “notice and a hearing prior to [the government] restricting” their “ability to travel. This holding was made up out of whole cloth. Such a holding, if applied in other contexts, would yield a fundamental transformation for the doctrine of consular review. Even under Justice Kennedy’s concurring opinion in Kerry v. Din, all the process that is due is a final decision from a consular official that the alien will not be permitted to enter the United States pursuant to the executive order.

In short, the small subset of aliens who would in fact be denied entry under this policy have no cognizable due process rights, and to the extent that courts find some interest exist, the review and denial by a consular officer provides all the process that is due.


In Part III, I will assess how the revised order impacts the Equal Protection and Establishment clauses analyses.