Intl. Refugee Assistance v. Donald J. Trump

Filing 100

AMICUS CURIAE BRIEF by Immigration Law Professors on Statutory Claims in Support of Plaintiffs-Appellees in electronic and paper format. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/17/2017. [1000194729] [17-2231, 17-2232, 17-2233, 17-2240] Fatma Marouf [Entered: 11/17/2017 04:43 PM]

Nos. 17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,
Plaintiffs-Appellees,
IRANIAN ALLIANCES ACROSS BORDERS et al.,
Plaintiffs-Appellees,
EBAL ZAKOK, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, et al.,
Defendants-Appellants.
On Appeal from the United States District Court
for the District of Maryland, Southern Division
(8:17-cv-00361-TDC)
__________________________________________________________________
BRIEF OF AMICI CURIAE IMMIGRATION LAW PROFESSORS
ON STATUTORY CLAIMS IN SUPPORT OF PLAINTIFFS-APPELLEES
__________________________________________________________________
FATMA MAROUF*
Texas A&M Univ. School of Law
1515 Commerce Street
Fort Worth, TX 76102
[phone]

SABRINEH ARDALAN*
PHILIP L. TORREY*
NATHAN MACKENZIE (Law Clerk)
DALIA DEAK (Law Student)
Harvard Immigration and Refugee
Clinical Program
Harvard Law School
6 Everett Street
Cambridge, MA 02138

GEOFFREY HOFFMAN*
University of Houston Law Center
4604 Calhoun Road, Room 56, TU-II
Houston, TX 77204
[phone]

ALAN HYDE*
Rutgers Law School
123 Washington Street
Newark, NJ 07102
[phone]

KARLA MCKANDERS*
Vanderbilt Law School
131 21st Avenue South
Nashville, TN 37203
[phone]

*Filed in an individual capacity.
University affiliation is for
identification only.
Counsel for Amici Curiae and Amici Curiae

TABLE OF CONTENTS
INTEREST OF AMICI CURIAE .............................................................................. 1
SUMMARY OF THE ARGUMENT ....................................................................... 1
ARGUMENT ............................................................................................................ 3
I.

CONGRESS HAS GIVEN THE PRESIDENT BROAD, BUT IN NO
WAY UNLIMITED, POWERS OVER IMMIGRATION. ...................... 3
A. Congress Has Delegated Significant Yet Restricted Powers Over
Immigration to the Executive Branch. ................................................. 6
B. The Delegation of Authority Under 1182(f) Give the President Broad
Discretion in Exigencies Involving Diplomacy or Military Affairs,
But Do Not Provide Unlimited Power. ................................................ 8

II.

THE INA AS A WHOLE CONSTRAINS THE DELEGATION OF
AUTHORITY IN 1182(f)........................................................................ 15
A. The INA Constrains the President’s Authority by Specifying
Categories of Aliens Who May Be Admitted. ................................... 16
B. The INA Constrains the President’s Delegated Authority by
Specifying Categories of Aliens Who May Not Be Admitted,
Including Categories Based on National Security and Foreign Policy
Concerns. ............................................................................................ 18
C. The INA’s Nondiscrimination Provision Constrains the President’s
Authority Under 1182(f). ................................................................... 23

CONCLUSION ....................................................................................................... 28

i

TABLE OF AUTHORITIES
CASES
Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986) ........................................................................... 19
Dada v. Mukasey,
554 U.S. 1 (2008) ................................................................................................. 15
Galvan v. Press,
347 U.S. 522 (1954) ............................................................................................... 4
Haitian Refugee Ctr. v. Civiletti,
503 F. Supp. 442 (S.D. Fla. 1980) ....................................................................... 27
Hawaii v. Trump,
859 F.3d 741 (9th Cir. 2017)................................................................................ 25
Hillman v. Maretta,
133 S. Ct. 1943 (2013) ......................................................................................... 25
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ............................................................................................... 8
Inhabitants of Montclair Twp. v. Ramsdell,
107 U.S. 147 (1883) ............................................................................................. 26
Int’l Refugee Assistance Project v. Trump,
857 F.3d 554 (4th Cir. 2017) (en banc), vacated and remanded by Trump v. Int’l
Refugee Assistance Project, -- S.Ct. --, 2017 WL 4518553 ......................... passim
Int’l Refugee Assistance Project v. Trump,
2017 WL 4674314 (D. Md. Oct. 17, 2017) ................................................... 2, 13
Jean v. Nelson,
727 F.2d 957 (11th Cir. 1984) ............................................................................... 2
Kerry v. Din,
135 S. Ct. 2128 (2015) ........................................................................................... 4

ii

Kleindienst v. Mandel,
408 U.S. 753 (1972) ......................................................................................... 4, 13
Lopez v. Gonzales,
549 U.S. 47 (2006) ............................................................................................... 15
Marx v. General Revenue Corp.,
133 S. Ct. 1166 (2013) ........................................................................................... 8
Morton v. Mancari,
417 U.S. 535 (1974) ............................................................................................ 26
N.L.R.B. v. Noel Canning,
134 S. Ct. 2550 (2014) .......................................................................................... 9
Nishimura Ekiu v. United States,
142 U.S. 651 (1892) ............................................................................................... 4
Oceanic Steam Navigation Co. v. Stranahan,
214 U.S. 320 (1909) ............................................................................................... 4
Olsen v. Albright,
990 F.Supp. 31 (D.D.C. 1997) ............................................................................. 23
Puello v. Bureau of Citizenship & Immigr. Servs.,
511 F.3d 324 (2d Cir. 2007)................................................................................. 24
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
132 S. Ct. 2065 (2012) ......................................................................................... 20
Regan v. Wald,
468 U.S. 222 (1984) ............................................................................................. 11
Reiter v. Sonotone Corp.,
442 U.S. 330 (1979) ............................................................................................... 9
United Dominion Indus., Inc. v. United States,
532 U.S. 822 (2001) ............................................................................................. 25
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ............................................................................................... 4

iii

Walters v. Metro. Educ. Enters., Inc.,
519 U.S. 202 (1997) ............................................................................................... 8
Watt v. Alaska,
451 U.S. 259, 266 (1981) ..................................................................................... 27
Weinberger v. Hynson, Westcott & Dunning, Inc.,
412 U.S. 609 (1973) ............................................................................................. 26
Yamataya v. Fisher,
189 U.S. 86 (1903) ................................................................................................. 4
Youngstown Steel and Tube v. Sawyer,
343 U.S. 579 (1952) ...................................................................................... passim
Zivotofsky ex rel. Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) ................................................................................. 4, 9, 17
CONSTITUTION
U.S. Const. art. I, § 8, cl. 3, 4, 11 .............................................................................. 3
U.S. Const. art. I, § 9, cl.1 ......................................................................................... 4
U.S. Const. art. II, § 2, cl. 1–2 .................................................................................. 9
STATUTES AND REGULATORY MATERIAL
6 U.S.C. § 202(5) ...................................................................................................... 6
8 U.S.C. § 1101(a)(15) ............................................................................................ 17
8 U.S.C. § 1103(a) ................................................................................................ 5, 6
8 U.S.C. § 1104 ......................................................................................................... 5
8 U.S.C. § 1151(b)(2)(A)(i) .................................................................................... 17
8 U.S.C. § 1152(a) ............................................................................................ 26, 27
8 U.S.C. § 1152(a)(1)(A) ............................................................................ 23, 24, 27
iv

8 U.S.C. § 1152(a)(1)(B) ........................................................................................ 28
8 U.S.C. § 1152(a)(2) .............................................................................................. 24
8 U.S.C. § 1153(a) .................................................................................................. 17
8 U.S.C. § 1153(b) .................................................................................................. 17
8 U.S.C. § 1153(c) .................................................................................................. 17
8 U.S.C. § 1153(d) .................................................................................................. 17
8 U.S.C. § 1153(e) .................................................................................................. 17
8 U.S.C. § 1157(c)(3) ................................................................................................ 7
8 U.S.C. § 1158 ......................................................................................................... 7
8 U.S.C. § 1182(a) .................................................................................................. 18
8 U.S.C. § 1182(a)(1)(A) .......................................................................................... 5
8 U.S.C. § 1182(a)(2) .............................................................................................. 12
8 U.S.C. § 1182(a)(3)(A) ........................................................................................ 12
8 U.S.C. § 1182(a)(3)(B) .............................................................................. 2, 12, 19
8 U.S.C. § 1182(a)(3)(C) .................................................................................... 2, 12
8 U.S.C. § 1182(a)(3)(B)(iii)(V)(bb) ...................................................................... 19
8 U.S.C. § 1182(a)(3)(B)(iv)................................................................................... 19
8 U.S.C. § 1182(a)(3)(C) ........................................................................................ 20
8 U.S.C. § 1182(a)(3)(C)(ii)–(iii) ........................................................................... 20
8 U.S.C. § 1182(a)(9)(B)(v) ...................................................................................... 7

v

8 U.S.C. § 1182(a)(9)(C)(iii) .................................................................................... 7
8 U.S.C. § 1182(a)(28) .............................................................................................. 4
8 U.S.C. § 1182(d)(3) ............................................................................................... 7
8 U.S.C. § 1182(d)(3)(B) ........................................................................................ 19
8 U.S.C. § 1182(d)(4) ............................................................................................... 7
8 U.S.C. § 1182(d)(5)(A) .......................................................................................... 7
8 U.S.C. § 1182(f) ............................................................................................ passim
8 U.S.C. § 1185(a) .................................................................................................. 25
8 U.S.C. § 1185(a)(1) ............................................................................................... 1
8 U.S.C. § 1187(a)(3)(B) ........................................................................................ 21
8 U.S.C. § 1187(c)(2)(D)-(F) .................................................................................. 21
8 U.S.C. § 1188(a)(2) ................................................................................................ 5
8 U.S.C. § 1202 ....................................................................................................... 21
8 U.S.C. § 1202(a) ........................................................................................ 7, 12, 21
8 U.S.C. § 1202(b) ........................................................................................ 7, 12, 21
8 U.S.C. § 1202(c) ........................................................................................ 7, 12, 21
8 U.S.C. § 1202(d) ........................................................................................ 7, 12, 21
8 U.S.C. § 1202(g) .................................................................................................. 12
8 U.S.C. § 1202(g)(2)(B) .......................................................................................... 8
8 U.S.C. § 1202(h) ............................................................................................ 12, 21

vi

8 U.S.C. § 1202(h)(1)(C) .......................................................................................... 8
8 U.S.C. § 1227 ......................................................................................................... 6
8 U.S.C. § 1229b ....................................................................................................... 7
8 U.S.C. § 1229c ....................................................................................................... 7
8 U.S.C. § 1255(c) .................................................................................................... 7
8 U.S.C. § 1361 ................................................................................................. 13, 14
22 C.F.R. § 40.6 ................................................................................................ 13, 14
Homeland Security Act, H.R. 5005, 107th Cong. (2002) ......................................... 5
EXECUTIVE ORDERS AND PROCLAMATIONS
Executive Order No. 13769, 82 Fed. Reg. 8,977 (Jan. 27, 2017) ........................... 13
Executive Order No. 13780, 82 Fed. Reg. 13,209 (Mar. 9, 2017).......................... 13
Proclamation 9645, 82 Fed. Reg. 45161 (Sept. 27, 2017) ............................... passim
FEDERAL RULES OF APPELLATE PROCEDURE
Fed. R. App. P. 29(a)(2)............................................................................................ 1
Fed. R. App. P. 29(a)(4)(E)....................................................................................... 1
OTHER AUTHORITIES
Curtis A. Bradley & Trevor W. Morrison, Presidential Power, Historical Practice,
and Legal Constraint, 113 Colum. L. Rev. 1097 (2013) .......................................... 9
Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law,
119 Yale L.J. 458 (2009) .......................................................................................... 6
H.R. 8662, 89th Cong., 1st Sess. (1965) ................................................................. 24
H.R. Rep. No. 101-955 (1990) ................................................................................ 20
vii

Kate M. Manuel, Cong. Research Serv., R44743, Executive Authority to Exclude
Aliens (2017) .................................................................................................. 10, 23
Gerald L. Neuman, Terrorism, Selective Deportation and the First Amendment
After Reno v. AADC, 14 Geo. Immigr. L.J. 313 (2000) ........................................ 19
President’s Announcement of Sanctions Against Iran, 16 Weekly Comp. of Pres.
Doc. 611 (Apr. 7, 1980) .......................................................................................... 10
Proclamation No. 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986) ......................... 10-11
Remarks at the Signing of the Immigration Bill, Liberty Island, New York, 546
Pub. Papers 1037 (Oct. 3, 1965) ............................................................................. 23
S. 500/H.R. 2580, 89th Cong., 1st Sess. (1965) .................................................... 23

viii

INTEREST OF AMICI CURIAE
Amici are immigration law scholars. They teach immigration and refugee
law, have written numerous scholarly articles on immigration and refugee law, and
understand the practical aspects of immigration law through client representation.
They submit this brief to show that the Immigration and Nationality Act (“INA”)
as a whole constrains the authority delegated to the Executive Branch under 8
U.S.C. § 1182(f), rendering Proclamation 9645, 82 Fed. Reg. 45161 (Sept. 27,
2017) (“Proclamation”), ultra vires.1
SUMMARY OF THE ARGUMENT
While Congress has delegated broad powers to the Executive Branch
concerning the enforcement of immigration laws, the INA’s content, structure, and
usage limit those powers. Viewing the INA in its entirety, as an integrated statute,
proves fatal to the Government’s arguments that Congress imposed no constraints
on the President’s power to suspend the entry of classes of aliens under 8 U.S.C. §
1182(f).2

1

All parties have consented to the filing of this amicus brief. See Fed. R. App. P.

29(a)(2). No party’s counsel authored any part of the brief, and no party, party’s
counsel, or person, other than the amici, contributed money that was intended to
fund preparing or submitting the brief. See Fed. R. App. P. 29(a)(4)(E).

2

While the President cites both 1182(f) and 1185(a)(1) in the Proclamation as the
statutory basis for his authority, the boilerplate language in 1185(a)(1) has never
been held by itself to authorize any particular Executive Branch restriction on

1

Although Congress has delegated broad authority to the President under the
INA, he cannot impermissibly use that authority to upend the INA’s system of
determining who should be allowed into the country and who should not be
allowed. Congress has carefully crafted the categories of aliens who may and may
not be admitted to the United States, and in doing so it specifically created
terrorism-related and foreign policy grounds of inadmissibility. See 8 U.S.C. §
1182(a)(3)(B)–(C). Congress did not grant the President unbridled power under
1182(f) to circumvent those provisions.
Other INA provisions would similarly be rendered meaningless if the
President had unchecked power under 1182(f). Most notably, the INA’s
nondiscrimination provision, which was created with the express purpose of ending
an admissions system based solely on national origin, would be rendered
meaningless if the President could prevent the admission of aliens based solely on
their nationality. Since 1952, when 1182(f) was enacted, Congress has repeatedly
amended the INA. One of the critical changes that occurred in 1965 involved
abandoning a system rooted in national origin discrimination and creating a more

entry; 1182(f) is the broader grant of authority, subsuming 1185(a)(1). See Jean v.
Nelson, 727 F.2d 957, 966–67 (11th Cir. 1984), aff’d, 472 U.S. 846 (1985); Int’l
Refugee Assistance Project v. Trump, 2017 WL 4674314, at *23 (D. Md. Oct. 17,
2017) (“Although the Proclamation also relies on § 1185(a)(1), the parties do not
argue that this section provides broader authority than § 1182(f). Therefore, the
Court need only consider whether the Proclamation exceeds the President’s
delegated authority under § 1182(f).”).
2

equitable method for determining admission. Congress has also repeatedly
constrained executive discretion over the past several decades to further prevent
discriminatory practices. This historical trajectory underscores the importance of
construing 1182(f) in the context of the contemporary INA, with its current
structure, content, objectives, and purpose.
The broad grant of authority under 1182(f) can only be reconciled with the
rest of the statute if construed to apply in exceptional circumstances involving
diplomacy and the Commander-in-Chief powers, where the President’s authority is
at its peak. Indeed, prior usage of 1182(f) has rested on such an interpretation. The
President’s Proclamation here purports to be related to national security and
diplomacy, but its provisions and its origin undercut those proffered justifications.
In this brief, we demonstrate how the INA as a whole unambiguously dooms
the Proclamation.
ARGUMENT
I.

CONGRESS HAS GIVEN THE PRESIDENT BROAD, BUT IN NO
WAY UNLIMITED, POWERS OVER IMMIGRATION.
Primary responsibility over immigration lies with Congress, which has the

power to “establish an uniform Rule of Naturalization,” “regulate Commerce with
foreign Nations,” “declare War,” and—in a veiled reference to slavery—prohibit
“[t]he Migration or Importation of such Persons as any of the States now existing
shall think proper to admit” after the year 1808. U.S. Const. art. I, § 8, cl. 3, 4, 11
3

& § 9, cl.1. Based on these enumerated powers, combined with the Necessary and
Proper Clause, the Supreme Court has long recognized that regulating immigration
is primarily—if not exclusively—within Congress’s domain.3 See, e.g., Galvan v.
Press, 347 U.S. 522, 531 (1954) (“[T]hat the formulation of [immigration policy]
is entrusted exclusively to Congress has become about as firmly embedded in the
legislative and judicial tissues of our body politic as any aspect of our
government.”); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 340
(1909) (“[T]he authority of Congress over the right to bring aliens into the United
States embraces every conceivable aspect of that subject.”).
Congress can, of course, delegate authority to the Executive Branch. See
Yamataya v. Fisher, 189 U.S. 86, 97–98 (1903); Nishimura Ekiu v. United States,
142 U.S. 651, 659 (1892). Via the INA, Congress has delegated substantial

3

While the Supreme Court has suggested in dicta that the President has some
inherent power over immigration derived from the foreign affairs power, those
cases involved actions taken pursuant to statutory delegations of authority. See,
e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 539–41 (1950)
(explaining that the President acted pursuant to a 1941 Act that authorized him to
impose additional restrictions on entry and departure “during the national
emergency proclaimed May 27, 1941,” upon finding that the interests of the United
States required it); Kleindienst v. Mandel, 408 U.S. 753, 769–70 (1972) (stating
that the Executive Branch denied a waiver of inadmissibility pursuant to a
delegation of authority in 8 U.S.C. § 1182(a)(28)); Kerry v. Din, 135 S. Ct. 2128,
2131–32 (2015) (upholding the denial of a visa by a consular official acting
pursuant to a statutory provision prohibiting the issuance of visas to persons who
engage in terrorist activities).

4

authority to certain Executive Branch officials, including the President, Attorney
General, Secretary of State, Secretary of Homeland Security, Secretary of Labor,
and Secretary of Health and Human Services.4 See, e.g., 8 U.S.C. §§ 1103(a)
(delegating authority to the Secretary of Homeland Security), 1104 (Secretary of
State), 1182(a)(1)(A) (Secretary of Health and Human Services), and 1188(a)(2)
(Secretary of Labor). But those delegated powers are not so broad as to allow the
Executive Branch authorities to bypass the elaborate admission scheme developed
by Congress.
Part A below explains the main powers that Congress has delegated to the
Executive Branch regarding immigration enforcement and the admission of
individuals. Part B turns to the authority delegated under 8 U.S.C. § 1182(f). The
brief explains that the INA as a whole constrains the President’s power under
1182(f), limiting that power to exigent diplomatic or military concerns, where the
President’s authority is at its peak. See Youngstown Steel and Tube v. Sawyer, 343
U.S. 579, 637 (1952) (Jackson, J., concurring).

4

The Homeland Security Act of 2002 transferred certain powers from the Attorney
General to the Secretary of the Department of Homeland Security (“DHS”).
Homeland Security Act, H.R. 5005, 107th Cong. (2002).
5

A.

Congress Has Delegated Significant Yet Restricted Powers Over
Immigration Enforcement, Adjudication, and Visa Processing to
the Executive Branch.

The broadest delegations of authority to the Executive Branch pertain to
enforcement and removal, rather than admission. Adam B. Cox & Cristina M.
Rodríguez, The President and Immigration Law, 119 YALE L.J. 458, 464–65
(2009). Congress has charged the Secretary of Homeland Security with
“[e]stablishing national immigration enforcement policies and priorities,” and,
even more generally, with “the administration and enforcement” of immigration
laws. 6 U.S.C. § 202(5); 8 U.S.C. § 1103(a). These powers allow the President,
through the Secretary of Homeland Security, to prioritize certain classes of
noncitizens for removal and provide guidance regarding the use of prosecutorial
discretion. Although Congress has set forth detailed grounds of deportability, see 8
U.S.C. § 1227, decisions about who is actually placed in removal proceedings and
who is ultimately deported remain largely in the hands of the Executive Branch.
In addition, the Executive Office for Immigration Review (“EOIR”), an
agency within the Department of Justice, conducts immigration court proceedings
and appellate review of most removal decisions. As part of that process, EOIR
officials are authorized to make determinations about whether to grant certain
forms of relief and protection from removal after an individual satisfies the INA’s
eligibility criteria. Decisions about whether to grant asylum, different types of

6

cancellation of removal, voluntary departure, and adjustment of status require an
Executive Branch official to exercise some degree of discretion. See 8 U.S.C. §§
1158, 1229b, 1229c, 1255(c).
Congress has also delegated authority to the Executive Branch concerning
the admission of individuals into the country, including discretionary waivers of
certain inadmissibility grounds in individual cases. While some types of waivers
are quite broad, see, e.g., 8 U.S.C. § 1182(d)(3), others may be granted only if the
applicant satisfies specific statutory requirements. See, e.g., 8 U.S.C. §§
1182(a)(9)(B)(v) (waiver of three and ten-year bars to admission for unlawful
presence), (a)(9)(C)(iii) (waiver for aliens unlawfully present after previous
immigration violations), (d)(4) (waiver of requirement to have a valid entry
document), 1157(c)(3) (waiver of inadmissibility grounds for refugees). Congress
has also authorized Executive Branch officials to grant “parole,” which allows
entry “on a case-by-case basis for urgent humanitarian reasons or significant public
benefit.” 8 U.S.C. § 1182(d)(5)(A).
Furthermore, Congress has authorized certain Executive Branch officials to
determine the form and manner of processing “immigrant” and “nonimmigrant”
visa applications. 8 U.S.C. § 1202(a)–(d). For example, Congress has authorized
the Secretary of State to waive the general requirement of an in-person interview
for nonimmigrant visa applicants if it is “in the national interest of the United

7

States” or “necessary as a result of unusual or emergent circumstances.” 8 U.S.C. §
1202(h)(1)(C). In addition, the Secretary of State is authorized to grant an
exception to the general rule that overstaying a nonimmigrant visa makes an
individual ineligible to be readmitted as a nonimmigrant if “extraordinary
circumstances” exist. 8 U.S.C. § 1202(g)(2)(B).
B.

The Delegation of Authority Under 1182(f) Gives the President
Broad Discretion in Exigencies Involving Diplomacy or Military
Affairs, But Does Not Provide Unlimited Power.

The President may suspend the “entry” of “classes of aliens” under 1182(f)
only if he “finds” that such entry would be “detrimental to the interests of the
United States.” 8 U.S.C. § 1182(f). Each of those terms must be given some
meaning to avoid being mere surplusage and render the statutory admission
scheme and its restraints on the Executive Branch’s discretion surplusage. See
Marx v. General Revenue Corp., 568 U.S. 371, 386 (2013) (“[T]he canon against
surplusage is strongest when an interpretation would render superfluous another
part of the same statutory scheme.”); Walters v. Metro. Educ. Enters., Inc., 519
U.S. 202, 209 (1997) (“Statutes must be interpreted, if possible, to give each word
some operative effect.”); INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987)
(“[W]here Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclusion.” (internal

8

quotation marks omitted)); Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)
(“In construing a statute we are obliged to give effect, if possible, to every word
Congress used.”).
Prior Presidents’ usage of 1182(f) provides further support for interpreting
the scope of the delegated power. See Zivotofsky, 135 S. Ct. 2076, 2090 (2015)
(Kennedy, J., concurring) (turning to “judicial precedent and historical practice” in
interpreting the President’s power to decide what foreign power is legitimate);
N.L.R.B. v. Noel Canning, 134 S. Ct. 2550, 2559–60 (2014) (putting “significant
weight upon historical practice” in interpreting the President’s powers under the
Recess Appointments Clause, and explaining that “[t]he longstanding ‘practice of
the government’ . . . can inform [the Court’s] determination of ‘what the law is’” in
a separation-of-powers case) (emphasis added) (citations omitted); see also Curtis
A. Bradley & Trevor W. Morrison, Presidential Power, Historical Practice, and
Legal Constraint, 113 Colum. L. Rev. 1097 (2013) (addressing the importance of
history in defining the scope of executive power).
Presidents have typically relied upon 1182(f) in emergency situations that
implicate their Commander-in-Chief powers and their authority concerning
international diplomacy. See U.S. Const. art. II, § 2, cl. 1–2. Such situations
include suspending entry of classes of aliens after foreign coups or revolutions;
putting pressure on a foreign government—often as part of broader sanctions;

9

enforcing a treaty; and responding to an act of aggression or an emergency. See
Kate M. Manuel, Cong. Research Serv., R44743, Executive Authority to Exclude
Aliens 6–10 (2017) (listing all previous presidential suspensions). In these types of
situations, the President’s power is at its zenith. By contrast, when the President
attempts to restrict entry of classes of aliens in situations that do not implicate
specific diplomatic exigencies or military crises, he is encroaching on Congress’s
undelegated power to establish the classes of persons who may and may not be
admitted to the United States, and consequently his power is at its lowest ebb. See
Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
In response to the 1980 Iranian hostage crisis, for example, President Carter
directed the Secretary of State to invalidate and suspend the issuance of visas to
Iranians “except for compelling and proven humanitarian reasons or where the
national interest of our own country requires.” President’s Announcement of
Sanctions Against Iran, 16 Weekly Comp. of Pres. Doc. 611 (Apr. 7, 1980).
Restricting the entry of Iranians was just one of several measures, including ending
diplomatic relations, which President Carter used to increase pressure on Iran to
release the hostages taken during the storming of the U.S. embassy. Id.
Perhaps the most sweeping use of 1182(f) was President Reagan’s exercise
of the power to “suspend entry into the United States as immigrants by all Cuban
nationals,” subject to certain exceptions. Proclamation No. 5517, 51 Fed. Reg.

10

30,470 (Aug. 22, 1986). President Reagan issued Proclamation 5517 in response to
the Cuban government’s refusal to honor an immigration agreement between the
two countries and disruption of normal migration procedures. Id. Two years prior
to President Reagan’s Proclamation, the Supreme Court upheld President Reagan’s
ability to restrict U.S. citizens’ travel to Cuba citing “weighty concerns of foreign
policy” as the justification for the restriction. Regan v. Wald, 468 U.S. 222, 241–42
(1984).
The Proclamation at issue here is much different. President Trump’s
Proclamation suspending the entry of foreign nationals from eight countries cannot
fairly be characterized as an act related to exigent diplomatic or military affairs.
There is no evidence, for example, that the President suspended entry to negotiate
or enforce a treaty with any of these eight countries, or to respond to an act of
aggression by or a coup or recent revolution in any of the eight countries. The
Proclamation summarily asserts that information-sharing and identity-management
deficiencies in the designated countries compromise national security, and that the
Proclamation serves a diplomatic purpose by encouraging the designated countries
to improve their practices in those areas, but the Government’s purported reasons
are utterly disjointed from the restrictions actually imposed.
The Proclamation fails to show why the current admission system Congress
crafted should be scrapped and replaced with a system that bans individuals based

11

solely on their nationality. Further, if information-sharing and identitymanagement deficiencies compromise national security, it does not serve the
Government’s purported purpose to allow individuals from Chad, Yemen and
Libya with all types of nonimmigrant visas, except for business and tourist visas, to
be allowed entry. Likewise, it makes no sense to allow only Iranian nonimmigrants
with student and exchange visas to enter, while barring all other Iranian
nonimmigrants. And if the purpose of the Proclamation is indeed to serve a
diplomatic purpose by encouraging foreign governments to improve their
practices, why would the President contradict his own alleged findings by
excluding a country, like Iraq, which did not meet the baseline criteria, and
including a country like Somalia, which met the baseline criteria? Indiscriminately
excluding certain nonimmigrants as opposed to the previous Executive Orders’
wholesale exclusion of nonimmigrants does not automatically render the
Proclamation a permissible exercise of presidential authority.
The Proclamation’s asserted purpose rings hollow when considering that the
INA places the burden on individual visa applicants—not their governments—to
provide the information necessary to establish their identity and eligibility for a
visa, including their admissibility into the United States, through both
documentation and an in-person interview. See 8 U.S.C. § 1202(a)–(d), (g)–(h); see
also 8 U.S.C. § 1182(a)(2), (a)(3)(A)–(C) (inadmissibility bars based on threats to

12

national security and public safety). Under the INA, consular officers must deny
visas to individuals who fail to provide sufficient information and documentation.
8 U.S.C. § 1361; 22 C.F.R. § 40.6.
The Proclamation, however, makes no mention of any deficiencies with the
current visa system; provides no explanation for shifting from the current system to
a ban based on nationality; and provides no information about the review process,
agency recommendations, or report that purportedly supports the restrictions
imposed. Although the District Court found that the Proclamation need not meet
stringent standards found elsewhere in the law, such as being “narrowly tailored”
or the “least restrictive means,” Int’l Refugee Assistance Project, 2017 WL
4674314, at *23, it cannot be devoid of any rational relationship to its purported
purpose. The Proclamation therefore cannot meet the “facially legitimate and bona
fide test” in Mandel, 408 U.S. at 769–70, when the restrictions it imposes are so far
afield from its asserted goals.
The Proclamation also cannot be viewed in isolation from its predecessors.
Executive Order 13769 (EO-1) was issued on January 27, 2017 within days of the
President’s inauguration and corresponded only to his campaign promises—not to
any identifiable classified or otherwise information, or security review that could
conceivably have been ordered in such a short time. The President provided no
“findings” to support either EO-1 or its second version, Executive Order 13780

13

(EO-2), and no nexus to any identifiable U.S. interests. Furthermore, as this Court
noted, both EO-1 and EO-2 invoked “the specter of ‘honor killings,’ . . . a wellworn tactic for stigmatizing and demeaning Islam and painting the religion, and its
men, as violent and barbaric.” Int’l Refugee Assistance Project v. Trump, 857 F.3d
554, 596 n. 17 (4th Cir. 2017) (en banc), vacated and remanded by Trump v. Int’l
Refugee Assistance Project, -- S.Ct. --, 2017 WL 4518553.
The most recent version of the travel ban attempts, belatedly, to correct
those prior deficiencies, but it fails to adequately do so. To be certain, it does not
mention honor killings and nominally adds two non-Muslim countries with little
practical impact on migration; it also provides a new purported rationale. But its
roots cannot be ignored. The Proclamation fulfills its predecessors’ promise of a
permanent ban, using nationality as a proxy for religion. As Judge Wynn explained
in his concurring opinion in Int’l Refugee Assistance Project, allowing the
President to use “national origin as a proxy for discrimination based on religious
animus” under 1182(f) “essentially contends that Congress delegates to the
President virtually unfettered discretion to deny entry to any class of aliens,
including to deny entry solely on the basis of nationality and religion.” 857 F.3d at
613 (Wynn, J., concurring). Judge Wynn correctly concluded that “the
Immigration Act provides no indication that Congress intended ‘broad generalized’
delegation of authority in Section 1182(f) to allow the President ‘to trench . . .

14

heavily on [fundamental] rights.’” Id. (footnote omitted). Under these
circumstances, the Proclamation exceeds the authority delegated to the President
by Congress.
II.

THE INA AS A WHOLE CONSTRAINS THE DELEGATION OF
AUTHORITY PROVIDED IN 1182(f).
Allowing the President to ignore the statutory constraints on his delegated

authority would upend the INA and improperly allow the Executive Branch
unchecked, absolute authority in an area historically deemed to be a Congressional
power. See Youngstown Steel and Tube, 343 U.S. at 637 (Jackson, concurring).
The statutory provisions on which the Government relies must be interpreted
in a manner that is consistent with the INA as a whole. See, e.g., Dada v. Mukasey,
554 U.S. 1, 16 (2008) (“In reading a statute we must not look merely to a particular
clause, but consider in connection with it the whole statute.” (internal quotation
marks omitted)). Indeed, the Supreme Court has cautioned that reading provisions
of the INA in isolation could lead to “so much trickery, violating the cardinal rule
that statutory language must be read in context.” Lopez v. Gonzales, 549 U.S. 47,
56 (2006) (citations and internal quotation marks omitted). That is precisely “why
our interpretive regime reads whole sections of a statute together to fix on the
meaning of any one of them . . . .” Id. As shown below, reading 1182(f) in the
context of the entire INA demonstrates that the provision does not authorize the

15

blanket ban on immigrant visas and improper and self-contradictory restrictions on
nonimmigrant visas set forth in the Proclamation.
Congress has carefully determined the categories of aliens who may and
may not be admitted to the country. Congress amended the current admissibility
rules nearly fifty years ago to prohibit nationality-based discrimination. Today’s
admission system prohibits the admission of certain individuals who meet
specified criteria—it does not allow for the exclusion of an entire population based
solely on that group’s nationality. See Int’l Refugee Assistance Project, 857 F.3d at
623 (Wynn, J., concurring).
The President cannot upend that structure by effectively rewriting the rules
of admission via executive fiat. The President’s delegated authority pursuant to
1182(f) thus cannot be used to undermine other provisions of INA. Indeed,
Congress has repeatedly legislated to limit the President’s authority related to the
admissions system. The President is not free to ignore these constraints.
A.

The INA Constrains the President’s Delegated Authority by
Specifying Categories of Aliens Who May Be Admitted to the
United States.

The INA provides detailed categories of aliens who may be admitted to the
United States, which the President cannot unilaterally alter. For individuals seeking
permanent residence, Congress has established three primary methods to obtain an
immigrant visa: family relationships, employment, and the diversity lottery. 8

16

U.S.C. §§ 1153(a)–(c). For both family and employment-based immigrant visas,
Congress has devised an intricate method for calculating the number of visas
available. See 8 U.S.C. § 1153(a)–(b); 8 U.S.C. § 1151(b)(2)(A)(i) (providing an
unlimited number of visas to “immediate relatives”). The diversity lottery, which
requires applicants to meet certain threshold conditions, similarly applies a
complicated, statutorily-designated formula to determine the number of people
who will be admitted in a random order from certain underrepresented
geographical regions. 8 U.S.C. § 1153(c)–(e).
For nonimmigrants, who comprise the vast majority of individuals admitted
to the United States, Congress has created an equally elaborate system. That
system includes an alphabet soup of nonimmigrant visa categories, including, but
not limited to, visas for individuals coming to the United States for tourism,
business, investment, study, training, agricultural or seasonal work, artistic
performances, athletic events, and exchange programs. 8 U.S.C § 1101(a)(15).
The President’s Proclamation directly contravenes the deliberate and
systematic process for immigrant and nonimmigrant admissions set forth in the
INA. By suspending the entry of foreign nationals from eight countries, the
Proclamation upends the statutory admissions scheme that Congress created and is
thus “incompatible with the express or implied will of Congress.” Zivotofsky, 135
S. Ct. at 2084 (quoting Youngstown, 343 U.S. at 635 (Jackson, J., concurring)); see

17

also Int’l Refugee Assistance Project, 857 F.3d at 638 (Thacker, J., concurring)
(“Reading § 1182(f) as bestowing upon the President blanket authority to . . .
reject[] a particular country’s immigrant visa applications as a matter of course,
would . . . allow the chief executive to override any of Congress’s carefully crafted
visa criterion or grounds for inadmissibility.”).
B.

The INA Constrains the President’s Delegated Authority by
Specifying Classes of Aliens Who May Not Be Admitted to the
United States, Including Based on National Security and Foreign
Policy Concerns.

Just as Congress has specified categories for admission, so too, has it
specified categories of aliens who may not be admitted. 8 U.S.C § 1182. These
inadmissibility grounds render certain aliens “ineligible to receive visas and
ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a). The
inadmissibility grounds include, but are not limited to, categories based on:
criminal convictions, crime-related conduct, immigration violations, fraudulent
misrepresentation, national security, and foreign policy. 8 U.S.C. § 1182(a).
Congress has incorporated into this framework very specific exceptions to certain
inadmissibility grounds, as well as discretionary “waivers” of certain grounds of
inadmissibility. See supra Section I.A.
The two grounds of inadmissibility addressing national security and foreign
policy are critical in interpreting the scope of the President’s authority under

18

1182(f). First, the national security ground in 8 U.S.C. § 1182(a)(3)(B) provides
very broad definitions of “terrorist activity” and “engag[ing] in terrorist activity,”
facilitating their use in a discretionary manner by consular officials and
immigration officers. See generally Gerald L. Neuman, Terrorism, Selective
Deportation and the First Amendment After Reno v. AADC, 14 Geo. Immigr. L. J.
313, 321–22 (2000). For example, the definition of “terrorist activity” includes any
unlawful use of a weapon or dangerous device “other than for mere personal
monetary gain,” and “[e]ngag[ing] in terrorist activity” includes providing
“material support” for any “terrorist activity” or organization. 8 U.S.C. §
1182(a)(3)(B)(iii)(V)(bb), (B)(iv). Congress has also provided a mechanism for
seeking an exemption from this inadmissibility ground. 8 U.S.C. § 1182(d)(3)(B).
It would be pointless for Congress to legislate specific criteria for terrorism-related
inadmissibility, as well as inadmissibility exceptions and exemptions, if Congress
also authorized the President to summarily exclude entire nations. See Abourezk v.
Reagan, 785 F.2d 1043, 1057–58 (D.C. Cir. 1986) (prohibiting the Executive
Branch from using the general exclusionary authority conferred by Congress in one
provision of the INA to circumvent a more specific provision dealing with
exclusion of aliens on the basis of organizational affiliation).
Second, the foreign policy inadmissibility ground applies to any alien
“whose entry or proposed activities in the United States the Secretary of State has

19

reasonable grounds to believe would have potentially serious adverse foreign
policy consequences for the United States.” 8 U.S.C § 1182(a)(3)(C). Congress has
carved out two exceptions to this inadmissibility ground that curb the Secretary of
State’s discretion, providing that a person generally should not be excluded based
on “past, current, or expected beliefs, statements, or associations that would be
lawful within the United States.” 8 U.S.C. § 1182(a)(3)(C)(ii)–(iii). The conference
committee report accompanying the 1990 Immigration Act, which introduced the
foreign policy ground, provides:
Under current law there is some ambiguity as to the authority of
the Executive Branch to exclude aliens on foreign policy grounds
. . . . The foreign policy provision in this title would establish a
single clear standard for policy exclusions (which is designated
as 212(a)(3)(C) of the INA). The conferees . . . expect that, with
the enactment of this provision, aliens will be excluded not
merely because of the potential signal that might be sent because
of their admission, but when there would be a clear negative
foreign policy impact associated with their admission.
H.R. Rep. No. 101-955, at 128–29 (1990). There would be no point in requiring
the Executive Branch to have “reasonable grounds to believe” that an individual
“would have potentially serious adverse foreign policy consequences for the
United States” before denying the admission of such an individual, if the President
had unfettered authority to restrict entry under 1182(f). See RadLAX Gateway
Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) (interpreting a statute to

20

avoid “the superfluity of a specific provision that is swallowed by the general
one”).
Construing 1182(f) as broadly as the Government suggests would allow the
President to destabilize—and ultimately destroy—the detailed admission structure
described above. The President would effectively be able to create new categories
of inadmissible aliens by suspending entry of classes he defines, thereby also
altering the categories of people admitted to the country.
Denying entry to classes of aliens based on alleged governmental
deficiencies in information-sharing and identity verification also unlawfully
extends Congress’s requirements for participation in the Visa Waiver Program to
the regular visa application process, where the individual applicant has the burden
of proving eligibility. Cf. 8 U.S.C. § 1187(a)(3)(B) & (c)(2)(D)–(F) (requiring
foreign governments to issue electronic passports, report lost or stolen passports,
and share security-related information about its nationals to participate in the Visa
Waiver Program) with 8 U.S.C. § 1202(a)-(d), (h) (placing the burden on
applicants in the visa application process). When a country ceases to be eligible for
Visa Waiver Program (as is true of the countries affected by the Proclamation), its
nationals are still eligible to come to the United States if they apply for the relevant
visa and go through the careful visa-vetting process. Those visa processes are well
defined under 8 U.S.C. § 1202 and cannot be changed by the President unilaterally.

21

Congress did not intend to delegate such unlimited discretionary authority
under 1182(f). As the District Court observed, “the Proclamation effectively adds
new criteria for the issuance of visas and entry by nationals of certain countries
beyond those formally imposed by Congress.” Int’l Refugee Assistance Project v.
Trump, 2017 WL 4674314, at *54 (D. Md. Oct. 17, 2017). The District Court
further noted that the Proclamation “imposes significantly more restrictive
limitations that go beyond what Congress has previously imposed,” specifically
with respect to consequences for foreign governments’ information-sharing
practices. Id. at *56. Nevertheless, the District Court improperly rejected the
argument that the Proclamation amounts to legislative changes, relying on the
language in 1182(f) that allows the President to “impose on the entry of aliens any
restrictions he may deem to be appropriate.” 8 U.S.C. § 1182(f).
The District Court reached the wrong conclusion for at least two reasons.
First, the language in 1182(f) about imposing restrictions only applies if there is a
finding that entry of any class of aliens would be detrimental to the interests of the
United States. As discussed above, the purported findings in the Proclamation do
not meet that requirement, and are unexplained and highly suspect, especially
given the Proclamation’s background and context. Furthermore, the District
Court’s conclusion, which focuses disproportionately on the lack of conflict with
the Visa Waiver Program, fails to give due weight to how the Proclamation more

22

generally undermines the visa categories and inadmissibility grounds set forth by
Congress, particularly those pertaining to national security and foreign policy,
discussed above.
C.

The INA’s Nondiscrimination Provision Constrains the
President’s Delegated Authority Under 1182(f).

Section 1152(a)(1)(A) of the INA prohibits discrimination on the basis of
nationality and place of birth in the issuance of immigrant visas. Introduced as part
of the Immigration Act of 1965, the INA’s nondiscrimination provision was
designed to remedy the “harsh injustice of the national origins quota system.”
Remarks at the Signing of the Immigration Bill, Liberty Island, New York, 546
Pub. Papers 1037, 1038 (Oct. 3, 1965) (noting the national origins quota system
“violated the basic principle of American democracy—the principle that values
and rewards each man on the basis of his merit as a man”); see also Olsen v.
Albright, 990 F. Supp. 31, 37 (D.D.C. 1997) (discussing enactment of the 1965
Amendments, including “[t]he legislative history surrounding the 1965 Act
[which] is replete with the bold anti-discriminatory principles of the Civil Rights
Era,” and noting that visas may not be denied through applying prejudicial national
stereotypes); Manuel, Cong. Research Serv., supra, 1–10. Congress rejected a
proposal to transition gradually away from national origin quotas, preferring
instead to require their immediate abolition and to limit the executive’s discretion
in the visa allocation process. S.500/H.R. 2580, 89th Cong., 1st Sess. (1965) (Hart23

Celler, Johnson administration bill); H.R. 8662, 89th Cong., 1st Sess. (1965)
(Feighan bill).
Considering Congress’s specific intent to repeal the national origin quota
and its discriminatory foundation, it is unsurprising that the text of the
nondiscrimination provision is succinct and unambiguous: “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.” 8 U.S.C. § 1152(a)(1)(A). That text is clear and should be
interpreted in accordance with its plain meaning. See Puello v. Bureau of
Citizenship & Immigr. Servs., 511 F.3d 324, 327 (2d Cir. 2007). The
nondiscrimination provision thus reflects a significant step by Congress to end
discriminatory immigration practices previously allowed by the INA. It is through
that nondiscriminatory lens that the President’s statutory authority must be
construed.
Although Congress did create some narrow statutory exceptions to the
nondiscrimination provision, none are applicable with regard to the Proclamation.5
Notably, Congress did not choose to exempt from the nondiscrimination provision

5

Most significantly, Congress can discriminate by assigning per-country caps on
the number of family and employment-based visas that are issued. 8 U.S.C. §
1152(a)(1)(A), (2).

24

the President’s authority pursuant to 1182(f). See Hillman v. Maretta, 133 S. Ct.
1943, 1953 (2013) (“Where Congress explicitly enumerates certain exceptions to a
general prohibition, additional exceptions are not to be implied, in the absence of
evidence of a contrary legislative intent.”) (citations omitted)). Further, as the
District Court emphasized, none of the exceptions to the nondiscrimination
provision grant the President the authority to create his own exceptions. See Int’l
Refugee Assistance Project, 2017 WL 4674314, at *20 (finding it “highly
significant that § 1152(a) explicitly excludes certain sections of the INA from its
scope . . . but does not exclude § 1182(f) or § 1185(a)” and pointing to “[t]he
absence of any reference to § 1182(f) or § 1185(a) among these exceptions” as
“strong evidence that Congress did not intend for those provisions to be exempt
from the anti-discrimination provision” (citing, inter alia, United Dominion Indus.,
Inc. v. United States, 532 U.S. 822, 836 (2001) (“[T]he mention of some implies
the exclusion of others not mentioned.”); Hawaii v. Trump, 859 F.3d 741, 774, 778
(9th Cir. 2017) (“§ 1152(a)(1)(A)’s non-discrimination mandate cabins the
President’s authority under § 1182(f).”)). It is therefore unsurprising that the
President’s statutory authority is not exempted from the nondiscrimination
provision. There would be no point to a law that proscribes the President from
discriminating, except when the President chooses to discriminate.

25

Presidential authority pursuant to 1182(f) must therefore be construed in
conformance with the INA’s nondiscrimination provision. Int’l Refugee Assistance
Project, 2017 WL 4674314, at *20 (holding that “the President’s authority under §
1182(f) is limited by the § 1152(a) bar on discrimination based on nationality in
the issuance of immigrant visas”). Only then can both statutory provisions be given
effect as Congress intended. See Inhabitants of Montclair Twp. v. Ramsdell, 107
U.S. 147, 152 (1883) (“It is the duty of the court to give effect, if possible, to every
clause and word of a statute.”); Weinberger v. Hynson, Westcott & Dunning, Inc.,
412 U.S. 609, 633 (1973) (holding that an interpretation of one statutory provision
that renders another provision superfluous “offends the well-settled rule of
statutory construction that all parts of a statute, if at all possible, are to be given
effect”).
Additionally, established canons of statutory interpretation dictate that the
nondiscrimination provision should cabin 1182(f). See Morton v. Mancari, 417
U.S. 535, 550–51 (1974) (“[A] specific statute will not be controlled or nullified by
a general one, regardless of the priority of enactment.”). Congress enacted
1152(a)(1) against the backdrop of 1182(f) meaning that1182(f) must be read as
limited by the later-enacted nondiscrimination provision. See Int’l Refugee
Assistance Project, 2017 WL 4674314, at *20 (“Under the canon that a lateradopted provision controls over an earlier one, § 1152(a), enacted in 1965, controls

26

over § 1182(f) and the relevant text of § 1185(a)(1), enacted in 1952.” (citing Watt
v. Alaska, 451 U.S. 259, 266 (1981)); see also Int'l Refugee Assistance Project, 857
F.3d at 636 (Thacker, J., concurring) (“The crux of the Government’s argument,
however, is that § 1152(a)(1)(A) does not prevent the President, acting pursuant to
his § 1182(f) authority, from suspending entry based on nationality, even if that
suspension necessarily mandates the denial of immigrant visas based on
nationality. This is nonsensical. I find that argument to contravene longstanding
canons of statutory construction as well as the text and effect of EO-2 itself.”).
Although the President has the authority to suspend the entry of immigrants
“detrimental to the interests of the United States” via 1182(f), he cannot establish
blanket prohibitions on entry based solely on nationality. See Haitian Refugee Ctr.
v. Civiletti, 503 F. Supp. 442, 453 (S.D. Fla. 1980) (“[U]nder 8 U.S.C. § 1152(a),
INS has no authority to discriminate on the basis of national origin, except perhaps
by promulgating regulations in a time of national emergency.”). Indeed, as noted,
the only instances in which the Executive Branch has imposed nationality-based
restrictions on entry to the United States—in the context of the bar to entry of
Cuban nationals imposed by President Reagan in response to Cuba’s suspension of
an immigration agreement and the limitations on entry of Iranians imposed by
President Carter in the wake of the Iran Hostage Crisis—were both highly limited
in time and in scope. This Proclamation, in contrast, imposes a blanket prohibition

27

on the issuance of immigrant visas for the named countries, with “no specified end
date and no requirement of renewal,” in direct contravention of 1152(a). See Int’l
Refugee Assistance Project, 2017 WL 4674314, at *21 (noting that “where the
Proclamation now imposes an indefinite travel ban based on nationality, rather
than a 90-day ‘pause,’ such an action cannot fairly be construed as a change in
‘procedures’ or the ‘location’ of visa processing,” pursuant to § 1152(a)(1)(B)). To
allow such a blanket prohibition would undermine the visa allocation system over
which Congress retains authority, and would run afoul of the INA’s
nondiscrimination provision.
CONCLUSION
Amici submit that the arguments set forth above show that the INA
unambiguously constrains the president’s authority under 1182(f), rendering the
Proclamation ultra vires and inconsistent with the statute. Based on the foregoing,
Amici respectfully submit that the Court should find the Proclamation ultra vires.

28

Dated: November 17, 2017

Respectfully submitted,

SABRINEH ARDALAN*
PHILIP L. TORREY*
NATHAN MACKENZIE (Law Clerk)
DALIA DEAK (Law Student)
Harvard Immigration and Refugee
Clinical Program
Harvard Law School
6 Everett Street
Cambridge, MA 02138
[phone]
[e-mail]
[e-mail]

/s/ Fatma E. Marouf
_________________________
FATMA E. MAROUF*
Texas A&M Univ. School of Law
1515 Commerce St.
Fort Worth, TX 76102
[phone]
[e-mail]

GEOFFREY HOFFMAN*
University of Houston Law Center
4604 Calhoun Road, Room 56, TU-II
Houston, TX 77204
[phone]
[e-mail]

ALAN HYDE*
Rutgers Law School
123 Washington Street
Newark, NJ 07102
[phone]
[e-mail]

KARLA MCKANDERS*
Vanderbilt Law School
131 21st Avenue South
Nashville, TN 37203
[phone]
*Filed in an individual capacity. University affiliation is for identification only.

29

CERTIFICATION OF COMPLIANCE
This brief complies with the typeface and type style requirements of Fed. R.
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6,500 for an amicus brief in connection with a principal brief, which has a word
limit of 13,000 words under Fed. R. App. P. 32(a)(7)(B)).
Dated: November 17, 2017

/s/ Fatma E. Marouf
_____________________
Fatma E. Marouf

CERTIFICATE OF SERVICE
I hereby certify that on November 17, 2017, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Fourth Circuit using the appellate CM/ECF system.
I certify that all participants in this case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
DATED: November 17, 2017

Respectfully submitted,
/s/ Fatma E. Marouf
_____________________
Fatma E. Marouf