Trump's Immigration Orders Stand On Empty Authority

By Adam Rosen
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Law360 (May 14, 2020, 6:15 PM EDT) --
Adam Rosen
Adam Rosen
The commentary proliferating over the past three years regarding the parade of proclamations pouring from the presidential pen has been abundant. It is with some degree of surprise, however, that none of it addresses the plain language of the law.

The essence of each proclamation, including the latest — Proclamation 10014, Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak[1] — rests on Section 212(f) of the Immigration and Nationality Act, or INA, to prohibit classes of aliens from coming into the U.S.

A review of the INA's statutory history, however, reveals an approach of attack seemingly not yet taken that could halt these proclamations. The decision by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, or IIRAIRA,[2] to replace the legal doctrine of entry with admission in the INA, transformed the nature of federal immigration laws.

Yet Congress left INA Section 212(f) with the outdated entry terminology. This legislative act opens the door to challenging President Donald Trump's INA Section 212(f) proclamations: past, present and future.

The government claimed in Trump v. Hawaii[3] that Trump has unrestricted authority to suspend the entry[4] of aliens into the U.S. From a review of the history of INA Section 212(f) one might believe that the government is correct that it "confers a sweeping proclamation power to suspend entry of aliens based on findings that would not otherwise mandate inadmissibility under the INA."[5]

This position, endorsed by the U.S. Supreme Court, does not appear to have considered the historical perspective of the term entry and the impact of IIRAIRA's amendment of the INA:

By its plain language, [8 USC] §1182(f) [also known as INA § 212(f)] grants the president broad discretion to suspend the entry of aliens into the United States. The president lawfully exercised that discretion based on his findings — following a worldwide, multi-agency review — that entry of the covered aliens would be detrimental to the national interest. And plaintiffs' attempts to identify a conflict with other provisions in the INA, and their appeal to the statute's purposes and legislative history, fail to overcome the clear statutory language.[6]

The government's argument to the Supreme Court that INA Section 212(f) gives Trump the "sweeping power to suspend entry of aliens based on findings that would not otherwise mandate an alien's inadmissibility"[7] relied heavily on the historical practice of past administrations.[8] Yet this über focus on INA Section 212(f) reflects a significant oversight of the law.

Section 212(f) of the INA empowers the president to "find[] that the entry of any aliens or of any class of aliens into the U.S. would be detrimental to the interests of the U.S. … and ... 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."

It does not, however, empower the president to suspend the admission of aliens to the U.S.

There is a material difference between an "entry" and an "admission."

Under this regime [before 1996], 'entry' into the U.S. was defined as 'any coming of an alien into the U.S., from a foreign port or place.' 8 U. S. C. Section 1101(a)(13) (1988 ed.).[9]

The legal definition of entry encompassed three elements: a person physically transferring themselves into the borders of the U.S. and either an "inspection and admission … or … actual and intentional evasion of inspection at the nearest inspection point."[10] Under the law, so long as the alien was not physically inside the U.S., there was no entry.

However, this changed with the enactment of the IIRAIRA. An admission is, according to INA Section 101(a)(13)(A), "the lawful entry of the alien into the U.S. after inspection and authorization by an immigration officer."

In 1996, Congress explicitly erased the entry doctrine from the INA by amending INA Section 101(a)(13) and "supplanting the definition of 'entry' with definitions for the terms 'admission' and 'admitted.'"[11]

Some explanation of this decision was presented in the Report of the Committee on the Judiciary of the House of Representatives on H.R. 2202, Immigration in the National Interest Act of 1995,[12] which became part of IIRAIRA.

However, beyond merely amending some portions of the INA, IIRAIRA replaced the entire definition in INA Section 101(a)(13) of entry that had governed when INA Section 212(f) was enacted in the Immigration Act of 1952. As a result, when a person seeks to come into the U.S., they are seeking an admission[13] and are admitted into the U.S.

The amendment of the INA produced several effects. First, INA Section 212(f) does not give the president the authority to suspend visa issuance. An entry has never meant a visa issuance. Under IIRAIRA's version of the INA, a so-called application for admission explicitly excludes any type of visa issuance.[14]

Second, INA Section 212(f) does not give the president the authority to suspend admissibility determinations. This means any adjudication under the INA or Title 8 of the Code of Federal Regulations, such as a request for H-1B classification, that may require a determination of an alien's admissibility to the U.S. cannot be suspended.

Third, INA Section 212(f) does not empower the president to halt admissions.

Before IIRAIRA, "[p]resence after inspection and admission, without further restraint, however, does amount to entry."[15] IIRAIRA changed it because there is no "inspection and admission" as two sequential actions.

Instead there is an inspection and authorization[16] to be admitted to the U.S. This change — given the amendment by Congress — must be effectuated. The consequence of this statutory switch transforms the landscape of INA Section 212(f).

Proclamation 10014, the president's COVID-19 proclamation, prohibits visa issuance and admission of all immigrants — people pursuing lawful permanent resident, or green-card, status, seeking to obtain their immigrant visa for admission to the U.S.

Individuals pursuing a green card from outside the U.S. get the green card after being issued the immigrant visa and being admitted to the U.S. by U.S. Customs and Border Protection. However, Section 2(a) of Proclamation 10014 states that all immigrants are ineligible for visas or entry to the U.S.

While Section 2(b) has exceptions to that exclusion, Section 3(a) directs U.S. consular officers and CBP officers to determine if someone qualifies for an exception in Section 2(b). Otherwise Trump's latest proclamation pursuant to INA Section 212(f) suspends visa issuance and the admission pursuant to an immigrant visa by CBP. However, INA Section 212(f) does not encompass visa issuance or admissions to the U.S.

"The president's power, if any, to issue [any] order must stem either from an act of Congress or from the Constitution itself."[17] The word admission, like entry, is a term of art with a specific meaning.

The efforts by the Trump administration, to suspend the entry of aliens ignores the statutory amendments supplanting entries with admissions, are not a legitimate exercise of the president's authority. "[T]he argument fails because it disregards the statutory text."[18]

The plenary power of Congress over immigration gives it the authority to expand or reduce the authority of the president under the INA.[19] If there is, as reaffirmed by Trump v. Hawaii, a "limited scope of judicial inquiry into immigration legislation ... [because as the Supreme Court has] repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens,"[20] then INA Section 212(f) does not empower the president to stop immigration to the U.S.

While the parties, judges and amici have said that the statutory framework along with legislative history support the president's authority to prohibit the entry of aliens to the U.S., they have not considered or addressed the impact of IIRAIRA's superseding and replacing entries with admissions.

If statutory language and congressional amendments are to carry the simplicity, meaning and force of the selected words,[21] then the transformative amendments enacted by IIRAIRA to supplant entry with admission also limited the power of INA Section 212(f) to restrict immigration.

Trump v. Hawaii's failure to address the impact of IIRAIRA on INA Section 212(f) presents an opportunity to constrain the executive branch through the courts, to comply with the legislative limits of IIRAIRA on INA Section 212(f) and allow the immigration system to operate consistent with the law.

Adam J. Rosen is a member and an assistant managing attorney at Murthy Law Firm

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Proclamation 10014, 85 Fed. Reg. 23,441 (Apr. 27, 2020).

[2] Pub. L. 104-208 (1996).

[3] 585 U.S. ___, 138 S.Ct. 2392 (2018).

[4] INA § 212(f).

[5] Brief for Petitioner at 31, Trump v. Hawaii , 585 U.S. ___, 138 S.Ct. 2392 (2018), (No. 17-695).

[6] Trump, 585 U.S. ___, 138 S.Ct. 2392, 2408 (2018).

[7] Reply Brief for Petitioners at 7, Trump v. Hawaii, 585 U.S. ___, 138 S.Ct. 2392 (2018), (No. 17-965).

[8] The Congressional Research Service produced a report on INA § 212(f) with a chart showing its past usage. See "Executive Authority to Exclude Aliens: In Brief," by Kate M. Manual, Acting Section Research Manager, Congressional Research Service (Jan. 23, 2017).

[9] Vartelas v. Holder , 566 U.S. 257, 261 (2012).

[10] Matter of Barreto , 15 I. & N. Dec. 498, 500 (BIA 1975).

[11] Matter of Collado , 21 I. & N. Dec. 1061, 1064 (BIA 1998).

[12] H.R. Rep. No. 104-469 (1996).

[13] INA § 101(a)(13).

[14] INA § 101(a)(4).

[15] Immigration Consequences of Undocumented Aliens' Arrival in U.S. Territorial Waters, 17 Op. O.L.C. 77, 84 (Oct. 13, 1993).

[16] INA § 101(a)(13)(A).

[17] Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 585 (1952).

[18] Barton v. Barr , 590 U.S. __, 140 S.Ct. 1442, 1451 (2020).

[19] Chae Chan Ping v. U.S. , 130 U.S. 581 (1889) (discussing the plenary power doctrine and the roles of the three branches).

[20] Fiallo v. Bell , 430 U.S. 787, 792 (1977).

[21] The Supreme Court reiterated this principle in three separate opinions issued by three separate majorities on April 23, 2020: County of Maui, Hawaii v. Hawaii Wildlife Fund , 590 U.S. __, 140 S.Ct. 1462 (2020) (Breyer, J. delivered majority opinion for six justices); Barton v. Barr , 590 U.S. __, 140 S.Ct. 1442 (2020) (Kavanaugh, J. delivered majority opinion for five justices); and Romag Fasteners, Inc. v. Fossil Inc. , 590 U.S. ___, 140 S.Ct. 1492 (2020) (Gorsuch, J. delivered majority opinion for eight justices).

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