Last year, I put forward a statutory argument that President Trump’s proposal to ban immigrants from several majority Muslim countries was illegal because it violated a 1965 law that specifically banned discrimination against immigrants based on race, gender, nationality or place of residence or birth. On the night that the original executive order was released, I wrote an op-ed in the New York Times laying out the case again.
Now, finally, a ruling from a federal district court judge in Maryland addressed the issue, agreed with me in part, and partially stayed the executive order on this basis. This afternoon, the Trump administration appealed the ruling to the Fourth Circuit. The portion of ruling relevant to the statutory argument states:
Plaintiffs argue that by generally barring the entry of citizens of the Designated Countries, the Second Order violates Section 202(a) of the INA, codified at 8 U.S.C. 1152(a) ("1152(a)"), which provides that, with certain exceptions:
No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence.
Section 1152(a) was enacted as part of the Immigration and Nationality Act of 1965, which was adopted expressly to abolish the "national origins system" imposed by the Immigration Act of 1924, which keyed yearly immigration quotas for particular nations to the percentage of foreign-born individuals of that nationality who were living in the continental United States, based on the 1920 census, in order to "maintain, to some degree, the ethnic composition of the American people." H. Rep. No. 89-745, at 9 (1965). President Johnson sought this reform because the national origins system was at odds with "our basic American tradition" that we "ask not where a person comes from but what are his personal qualities."
. . .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. Under the plain language of the statute, the barring of immigrant visas on that basis would run contrary to 1152(a).
This ruling is a huge win and is the first to directly deal with the statutes at play. In another case in Washington (Ali v. Trump), the plaintiffs made the same arguments to Judge James Robart (who earlier in Washington v. Trump suspended the implementation of the first order). Judge Robart also appeared to agree with the plaintiffs on this point during oral arguments. The plain language of the statute forbids discrimination based on nationality in the issuance of immigrant visas (for people coming to the United States to live permanently).
Rejecting the Government’s Arguments
The court dispensed with some of the arguments from the government that I have previously addressed as well. The administration's primary argument is that it has the statutory authority under 8 U.S.C. 1182(f) to “suspend entry” of “any class of aliens” that the president deems a “detriment to the United States.” Of this argument, the judge writes:
Section 1152(a) requires a particular result, namely non-discrimination in the issuance of immigrant visas on specific, enumerated bases. Section 1182(f), by contrast, mandates no particular action, but instead sets out general parameters for the President's power to bar entry. Thus, to the extent that sections 1152(a) and 1182(f) may conflict on the question whether the President can bar the issuance of immigrant visas based on nationality, section 1152(a), as the more specific provision, controls the more general section 1182(f). See Edmond v. United States, 520 U.S. 651, 657 (1997) ("Ordinarily, where a specific provision conflicts with a general one, the specific governs."); United States v. Smith, 812 F.2d 161, 166 (4th Cir. 1987).
I made this point earlier that the more specific statute should be seen as limiting the more general statute. Section 1152(a) not only requires a certain result, but requires it for a single groups of “aliens” (i.e. immigrant visa applicants). The ruling continues:
Moreover, section 1152(a) explicitly excludes certain sections of the INA from its scope, specifically sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153. 8 U.S.C. 1152(a)(1)(A). Section 1182(f) is not among the exceptions. Because the enumerated exceptions illustrate that Congress "knows how to expand 'the jurisdictional reach of a statute, '" the absence of any reference to section 1182(f) among these exceptions provides strong evidence that Congress did not intend for section 1182(f) to be exempt from the anti-discrimination provision of section 1152(a).
I made this point here, noting that not only does it list exceptions, it lists them with unnecessary added emphasis: “except as specifically provided”. Nonetheless, the government argued that it could discriminate based on nationality by virtue of an exception to the non-discrimination provision in subparagraph (B) of section 1152(a)(1) that states, “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.” The government argued that its ban was a “procedure.” On this, the ruling states:
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 section 1152(a), the text of section 1152(a)(1)(B) does not comfortably establish that such a delay falls within this exception. Although section 1152(a)(1)(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 section 1152(a)(1)(B) addresses only place and manner, the Court cannot readily conclude that section 1152(a)(1)(B) permits the imminent 90-day ban on immigrant visas based on nationality despite its apparent violation of the non-discrimination provision of section 1152(a)(1)(A).
Even the government had trouble initially getting out this argument with any certitude. Its brief in Washington v. Trump merely stated that the language of subparagraph by of section 1152(a)(1) “suggests that maybe” the ban could be viewed as “procedure.” It was hesitant with good reason.
I have previously addressed this argument by noting that a “procedure for processing” cannot mean “no procedure for no processing” as in the case of an outright ban. Moreover, if section 1152(a)(1)()A) does not apply to the decision to issue or deny a visa, then it would apply to nothing at all. Section 1152(a)(1)(B) was added to address a 1995 D.C. circuit decision that used the non-discrimination rule to stop a requirement that Vietnamese in Hong Kong return to Vietnam to apply for immigrant visas. This legislative history certainly reflects a very narrow purpose. Thus, when Congress added the exception for procedures or locations in subparagraph (B), it specifically left subparagraph (A) in place, demonstrating its intention that it still carry weight.
To these facts, the court adds that Congress specifically listed changes in manner and location of processing, but left out time. If “manner” (procedures) was to include all three, the location language would be unnecessary. A basic cannon of interpretation holds that courts should not read statutes to include “surplusage” or words without effect. This interpretation is reinforced by the fact that section 202(a)(1)(A) bans discrimination in visa issuance, which is exactly what the executive order controls, not procedures or places.
Finally, the Government asserts that the President has the authority to bar the issuance of visas based on nationality pursuant to Section 215(a) of the INA, codified at 8 U.S.C. 1185(a) ("section 1185(a)"), which provides that:
Unless otherwise ordered by the President, it shall be unlawful for an alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.
8 U.S.C. 1185(a)(1). As support for this interpretation, the Government cites President Carter's invocation of 8 U.S.C. 1185(a)(l) to bar entry of Iranian nationals during the Iran Hostage Crisis in 1979. Crucially, however, President Carter used section 1185(a)(1) to "prescribe limitations and exceptions on the rules and regulations" governing "Iranians holding nonimmigrant visas," a category that is outside the ambit of section 1I52(a). 44 Fed. Reg. 67947, 67947 (1979). The Government has identified no instance in which section 1185(a) has been used to control the immigrant visa issuance process.
This is exactly the point that I made in my piece in the New York Times about the Carter administration’s actions. I further noted in my first post that the Carter administration did not implement this policy for people that it believed carried valid visas. It only implemented this policy with respect to those that it was uncertain whether the visas were valid or not because the Iranian revolutionaries had taken over the embassy in Tehran that housed the visa printing machine.
The government have also urged the courts to see this executive order as a brief “delay in visa decision-making.” But there is nothing in the category prohibition subparagraph (A) to indicate that a decision not to issue based on nationality could be done on a temporary basis, but more importantly, the executive order makes absolutely clear that the ban is indefinite, and that the 90 days is just the beginning. The government has already restarted the 90-day clock once, and each day that passes drains water from this claim.
Only a partial victory (but that could still allow total victory)
However, the ruling is only a partial victory for the plaintiffs because the court implausibly ruled that section 1182(f) impacts only the “entry of aliens” into the country, not “visa issuance.” Neither the government nor the plaintiffs agree with this view. Both argued against it also during oral arguments in the Ali v. Trump case when Judge Robart appeared to want to go this direction. The U.S. attorney explained, “The visa process is one aspect of the entire entry process.”
Not to argue the government’s case, but section 1201 does apply 1182 to the visa issuance process without limiting it to certain subsections. Every single administration—including this one—has interpreted 1182(f) to restrict both visa issuance and entry. That is why they were all printed in the Foreign Affairs Manual for consular officers. The ruling implies that all prior orders barring visas to people covered by section 1182(f)—including war criminals and members of military juntas, etc.—were improper because it determined that the section did not apply to visa issuance. This is a much greater departure from precedent and practice than anything the plaintiffs urged. It also implies that it would also be improper for the executive order to restrict visas to nonimmigrants under section 1182(f) as well.
Moreover, this view of section 1152 implies that Congress was very concerned with unbiased issuance of documentation, but not concerned with its immigration consequences. This is totally at odds with the statutory scheme and the legislative history, which clearly point to the intention to prevent the distribution of immigrants from being skewed based on nationality beyond what Congress specifically allowed. No need to go into the lengthy and definitive legislative history on this. The rest of section 202 which contains the per-country visa caps clearly is not intending to create an equal distribution of visa documents among the nations. It is intending to create an equal distribution of immigration.
This view is reinforced by the fact that implies that the government is free to discriminate at all in the issuance of status—which can occur either at the border at entry or inside the United States—and that Congress was okay with such discrimination. If you are already in the United States, you are protected from discrimination, but outside, you are not. Section 1255 clearly instructs Secretary of State to count status determinations against the visa cap under section 1152, demonstrating that Congress wanted those determinations—whether they happen at the border or inside the United States—to be treated the same as visa issuance determinations.
In any case, this split-the-baby approach creates an absurd result that Justice Scalia among others have urged courts to avoid. Under this decision, the government would be required to allow tens of thousands of immigrants to board planes and arrive at U.S. airports, creating exactly the type of chaos that the first order did. Hopefully, someone points out to these judges that this result is entirely at odds with the legislative scheme, and they will prevent this from occurring. No one—the government nor the plaintiffs—believe that this outcome would be just.
Fortunately, because the court also found that the executive order violates the First Amendment of the Constitution, we are protected from this situation. If it did arise, habeas corpus might be used to free the individuals, as it was in January, and provide a loophole to jump past the entry restrictions. This would be a pleasant, if not strange, way to arrive at victory.