We’ve seen this movie before.
Scene 1: The President issues a proclamation in reliance on his authority to restrict the entry of certain noncitizens under Immigration and Nationality Act (INA) § 212(f) so long as he asserts that allowing them in would be “detrimental to the interests of the United States.”
Scene 2: The proclamation creates exceptions to the entry bans based on the national interests of the United States (among other grounds).
Scene 3: Affected parties apply for exceptions; their requests are ignored or denied under opaque or nonexistent administrative procedures; and they sue in federal court.
This was the plot of the three travel-ban proclamations issued in 2017, the last of which the Supreme Court upheld in its 2018 decision, Trump v. Hawaii. After the Supreme Court’s ruling, litigation ensued because plaintiffs in several suits alleged that the government’s actions (refusing visas under 22 CFR §§ 41.121 and 42.81) conflicted with the proclamation and the statutory authority of the Secretary of State in INA § 104. The litigation continues, having survived a government motion to dismiss, which a federal judge denied on June 5 in Emami v. Nielsen [and] Pars Equality Center v Pompeo (Pars Equality).
Continue Reading Pursuing a National Interest Exception to the Presidential Entry Bans on Economic Grounds — Not A Fool’s Errand