State of Hawaii v. Trump

Filing 137

MOTION for Leave to File Amicus Curiae Brief of the Immigration Reform Law Institute in Support of Defendants Denise M. Hevicon appearing for Amicus Immigration Reform Law Institute (Attachments: # 1 Exhibit Proposed Amicus Curiae Brief, # 2 Certificate of Service)(Hevicon, Denise)

DENISE M. HEVICON 7428
841 Bishop Street, Suite 2210
Honolulu, Hawaii 96813
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]
CHRISTOPHER J. HAJEC (pro hac vice)
Director of Litigation
IMMIGRATION REFORM LAW INSTITUTE
25 Massachusetts Ave., NW, Suite 335
Washington, DC 20001
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]
Attorneys for Amicus Curiae
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI’I
STATE OF HAWAI’I and ISMAIL
ELSHIKH,

) CIVIL NO. 1:17-cv-0050-DKW-KSC
)
) AMICUS CURIAE BRIEF OF THE
Plaintiffs,
) IMMIGRATION REFORM LAW
v.
) INSTITUTE IN SUPPORT OF
)
DEFENDANTS
DONALD J. TRUMP, in his official
)
capacity as President of the United
)
States; U.S. DEPARTMENT OF
)
HOMELAND SECURITY; JOHN F. ) Hearing Date/Time:
KELLY, in his official capacity as
) Date: 3/15/2017
Secretary of Homeland Security; U.S ) Time: 9:30 am
DEPARTMENT OF STATE; REX
) Judge: Derrick K. Watson
TILLERSON, in his official capacity as )
Secretary of State; and the UNITED
)
STATES OF AMERICA, )
)
)
Defendants.
)
________________________________ )
AMICUS CURIAE BRIEF OF THE IMMIGRATION REFORM LAW
INSTITUTE IN SUPPORT OF DEFENDANTS

CORPORATE DISCLOSURE STATEMENT
Amicus Curiae Immigration Reform Law Institute (IRLI) is a 501(c)(3) not
for profit corporation. IRLI has no parent corporation. It does not issue stock.

ii

TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………………..iv
INTEREST OF AMICUS CURIAE………………………………………………………1
STATEMENT OF AMICUS CURIAE…………………………………………………..1
INTRODUCTION…………………………………………………………………2
BACKGROUND…………………………………………………………………..3
ARGUMENT……………………………………………………………………...5
I.

THE MARCH 6 EXECUTIVE ORDER DOES NOT CONFLICT WITH
EITHER THE IMMIGRATION AND NATIONALITY ACT NOR THE
ADMINISTRATIVE PROCEDURE ACT…………………………………5

II.

A COMPREHENSIVE STATUTORY SCHEME CONFERS BROAD
POWER ON THE PRESIDENT TO PROMULGATE HIS MARCH 6
EXECUTIVE ORDER……………………………………………………...9
A. General Immigration and Nationality Act provisions authorize
presidential action by proclamation to suspend and restrict the entry of
any alien under the dual visa and admission stages of lawful entry…….9
B. Additional specific laws modify the executive’s general authority for
designated classes of immigrants, non-immigrants, and visa waiver
program users……………………………………………………….…18

III.

THE COMPREHENSIVE STATUTORY SCHEME FOR EXPELLING
ALIENS BY EXECUTIVE PROCLAMATION DERIVES FROM
PLENARY POWER ASSIGNED IN THE CONSTITUTION TO
CONGRESS AND DELEGATED TO THE PRESIDENT, AND IS
PRESUMPTIVELY CONSTITUTIONAL……………………………….22

CONCLUSION………..…………………………………………………………25

iii

TABLE OF AUTHORITIES
Cases
Abbott Labs. v. Gardner, 387 U.S. 136, 140, (1967).................................................7
Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) ......................................... 23
Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) .......................... 24
Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S.
581 (1889) ............................................................................................................ 23
De Canas v. Bica, 424 U.S. 351, 353 (1976).............................................................9
Encuentro del Canto Popular v. Christopher, 930 F. Supp. 1360, 1365 (N.D. Cal.
1996)..................................................................................................................... 14
Fiallo v. Bell, 430 U.S. 787, 792 (1977) ................................................................. 24
Fong Yue Ting v. United States, 149 U.S. 698, 703 (1893).................................... 23
Haitian Refugee Center Inc. v. Baker, 953 F.2d 1498 (11th Cir 1992) .................. 13
Harisiades v. Shaughnessy,
342 U.S. 580 (1952)………………..……………………………………….......23
In re Q- T- -- M- T-, 21 I. & N. Dec. 639 (B.I.A. 1996) ............................................1
INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987) .............................................. 21
INS v. Chadha, 462 U.S. 919, 940 (1983). ............................................................. 23
INS v. Legalization Assistance Project, 510 U.S. 1301 (1993) .............................. 24
Kleindienst v. Mandel, 408 U.S. 753 (1972) .............................................................8
Kleineinst v. Mandel, 408 U.S. 753, 766 (1972) .................................................... 23
K-Mart Corporation v. Cartier, 486 U.S. 281 (1988) ...............................................9
iv

Knauff v. Shaughnessy, 338 U.S. 537 (1949 ........................................................... 14
Knoetze v. U.S. Dep’t of State, 634 F.2d 207, 212 (5th Cir. 1981) ........................ 16
Matter of A-H-, 23 I. & N. Dec. 774, 788, 790 (Att’y Gen. 2005). ........................ 22
Matter of C-T-L-, 25 I. & N. Dec. 341 (B.I.A. 2010) ................................................1
Matter of Pula 19 I. & N. Dec. 467 (B.I.A. 1987) ................................................. 21
Matter or Smirko, 23 I. & N. Dec. 836, 840 (B.I.A. 2005) .................................... 21
Matter of Silva-Trevino, 26 I. & N. Dec. 99 (B.I.A. 2016) .......................................1
Mow Sun Wong v. Campbell, 626 F.2d 739, 743(9th Cir. 1980). .......................... 11
Noh v. INS, 248 F.3d 938, 941 (9th Circuit 2001). ................................................. 17
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, (1971) ..........8
Sale v. Haitian Centers Council Inc., 509 U.S. 155, 172 (1993) ............................13
Save Jobs USA V. U.S. Dep’t of Homeland Sec., No. 16-5287 (D.C. Cir. filed Sept.
28, 2016); ................................................................................................................1
Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)....................................................24
The Chinese Exclusion Case, 130 U.S. 581, 609, (1889) ..........................................8
U.S. ex rel. Strachey v. Reimer, 101 F.2d 267, 269 (2d. Cir. 1939). ...................... 15
United States v. Hockings, 129 F.3d 1069 (9th Cir. 1997) ........................................9
Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 74 F. Supp. 3d 247
(D.D.C. 2014) ..........................................................................................................1
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ...................................2
Zivitofsky v. Clinton, 132 S. Ct. 1421, 1436 (2012) ............................................... 23
v

Statutes
3 U.S.C. § 301 ......................................................................................................... 11
5 U.S.C. § 553 ............................................................................................................8
5 U.S.C. § 553(a)(1), ............................................................................................. 7, 8
5 U.S.C. §553(b)(3)(B) ..............................................................................................8
8 U.S.C. § 1101(a)(13) ............................................................................................ 10
8 U.S.C. § 1101(a)(13)(C) ...................................................................................... 15
8 U.S.C. § 1101(a)(27) ...............................................................................................6
8 U.S.C. § 1101(a)(27)(A) .........................................................................................6
8 U.S.C. § 1103(a)(1) .............................................................................................. 24
8 U.S.C. § 1103(a)(5) .............................................................................................. 24
8 U.S.C. § 1152(a)(1)(A) ...................................................................................... 6, 8
8 U.S.C. § 1155 ....................................................................................................... 18
8 U.S.C. § 1157(c)(1) .............................................................................................. 20
8 U.S.C. § 1158(a)(2)(A)(iv). ................................................................................. 21
8 U.S.C. § 1158(a)(2)(C) ........................................................................................ 22
8 U.S.C. § 1182(a)(7 ............................................................................................... 15
8 U.S.C. § 1185 ....................................................................................................... 11
8 U.S.C. § 1185(a) .....................................................................................................8

vi

8 U.S.C. § 1185(a)(1) .............................................................................................. 10
8 U.S.C. § 1187(a)(12) ............................................................................................ 19
8 U.S.C. § 1187(a)(6) .............................................................................................. 19
8 U.S.C. §1201(i) .......................................................................................... 8, 16, 17
8 U.S.C. § 1201(h). ................................................................................................. 16
8 U.S.C. § 1225(a)(1) .............................................................................................. 15
8 U.S.C. § 1735 ....................................................................................................... 20
8 U.S.C. § 1182(f), .................................................................................. 8, 11, 12, 13
8 USC § 1185 .......................................................................................................... 11
Immigration and Nationality Act
INA § 201(b)(2)(A)(i) ................................................................................................6
INA § 203...................................................................................................................6
INA § 204...................................................................................................................6
NA § 212(f) ................................................................................................... 9, 11, 12
INA § 212(a)(6)(A)(i) ............................................................................................. 10
INA § 212(a)(7) .......................................................................................... 10, 15, 16
INA § 221(i) ............................................................................................................ 16
INA § 215.......................................................................................................... 11, 12
INA § 235(b)(7) ...................................................................................................... 15
INA § 237(a)(1)(B): ................................................................................................ 17

vii

INA § 217(a)(12)(A) ............................................................................................... 19
INA § 217(a)(12)(C) .............................................................................................. -19
INA § 217(a)(12)(D) ............................................................................................... 19
INA §215 (a)(1) .................................................................................................. 9, 10
INA § 221(h) ..............................................................................................................9
INA §221(i) ....................................................................................................... 10, 17
INA § 235(a)(1) .........................................................................................................9
Other Authorities
§ 701(a)(2)..................................................................................................................7
701(a)(2).....................................................................................................................7
9 FAM 302.11-3(B)(1)............................................................................................ 14
EO 12172, Delegation of Authority With Respect to Entry of Certain Aliens Into
the United States .................................................................................................. 11
EO 12206, Amendment of Delegation of Authority With Respect to Entry of
Certain Aliens Into the United States (Apr. 7, 1980)........................................... 11
Gordon et al., Immigration Law & Procedure, §12.06.12[b] (Apr. 2016). ............ 17
H.R. Rpt. 1365, 82d Cong., 2d Sess., at 53 (Feb. 14, 1952)................................... 12
https://www.state.gov/j/ct/list/c14151.htm (visited February 8, 2017). ................. 20
Manuel, K.M., Executive Authority to Exclude Aliens: In Brief, Table 1, CRS (Jan.
23, 2017)................................................................................................................13
P.L. 110-181, title XII, subtitle C, §1243 (2009) ......................................................7
Pub. L. 104-208, 110 Stat. 3009-546 (1996), ......................................................... 10
viii

U.S. Const. art. I, § 8, cl. 4 ...................................................................................... 23
U.S. Const. art. I, § 9, cl. 1 ...................................................................................... 23

ix

INTEREST OF AMICUS CURIAE
The Immigration Reform Law Institute (IRLI) is a non-profit 501(c)(3)
public interest law firm dedicated to litigating immigration-related cases on behalf
of, and in the interests of, United States citizens and legal permanent residents, and
also to assisting courts in understanding and accurately applying federal
immigration law. IRLI has litigated or filed amicus curiae briefs in a wide variety
of cases, including Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 74
F. Supp. 3d 247 (D.D.C. 2014); Save Jobs USA V. U.S. Dep’t of Homeland Sec.,
No. 16-5287 (D.C. Cir. filed Sept. 28, 2016); Matter of Silva-Trevino, 26 I. & N.
Dec. 99 (B.I.A. 2016); Matter of C-T-L-, 25 I. & N. Dec. 341 (B.I.A. 2010); and In
re Q- T- -- M- T-, 21 I. & N. Dec. 639 (B.I.A. 1996).
IRLI submits this amicus curiae brief to assist this Court in understanding
the comprehensive statutory scheme that undergirds the President’s instant exercise
of authority, and to show, against this backdrop, that Plaintiffs are exceedingly
unlikely to succeed in their lawsuit.
STATEMENT OF AMICUS CURIAE
All of the parties in this case have communicated to amicus curiae, in
writing, that they do not oppose the filing of this brief. No counsel for a party
authored this brief in whole or in part and no person or entity, other than amicus

curiae, its members, or its counsel, has contributed money that was intended to
fund preparing or submitting the brief.
INTRODUCTION
To prevail in their motion for a temporary restraining order (TRO), Plaintiffs
must show that they are likely to succeed on the merits of their claims. Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). They have utterly failed to
make that showing.
Aside from their constitutional claims, Plaintiffs argue that President
Trump’s March 6 Executive Order (“March 6 EO”) both exceeds and violates his
extremely broad statutory authority to regulate the admission of aliens into the
United States. Plaintiffs’ Brief in Support of their Motion for a TRO, Dc. No. 65-1
(“Pls’ Br.”) at 23-37. Both of these statutory arguments betray a fundamental
misunderstanding of the comprehensive statutory scheme Congress has enacted in
the Immigration and Nationality Act (“INA”). The INA, moreover, contains
numerous sources of authority for the March 6 EO that Plaintiffs fail to discuss at
all, or even acknowledge. These glaring defects make Plaintiffs highly unlikely to
succeed on the merits of their statutory claims. In addition, because Plaintiffs’
constitutional arguments, if successful, would invalidate wide swaths of a
comprehensive statutory scheme Congress has enacted pursuant to its plenary

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authority over immigration, Plaintiffs also are highly unlikely to succeed on the
merits of their constitutional claims.
BACKGROUND
During his campaign, President Donald Trump promised that he would focus
on the country’s national security and securing the safety of the American people.
On January 27, 2017, President Trump kept that promise by signing Executive
Order 13769 (“January 27 EO”). The January 27 EO’s purpose is clear: the United
States government would focus on “detecting individuals with terrorist ties and
stopping them from entering the United States.” The January 27 EO sought to
ensure that those entering the United States did not “engage in acts of bigotry or
hatred . . . or oppress Americans of any race, gender, or sexual orientation.”
On January 30, 2017, the state of Washington filed suit in the Western
District of Washington. The state of Hawai’i then brought the present action on
February 3, 2017, for Declaratory and Injunctive Relief against the January 27 EO.
Prior to the adjudication of the present case, the Western District of Washington
granted the state of Washington’s temporary restraining order. The Government
then requested a stay of the Western District of Washington’s order in the Ninth
Circuit, but the stay was denied on February 9, 2017.
On March 6, 2016, President Trump signed a new executive order entitled
“Protecting the Nation from Foreign Terrorist Entry into the United States.” The

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March 6 EO revoked the January 27 EO in order to clarify and narrow the
categories of aliens affected. The March 6 EO prioritized the safety of Americans
by hoping to improve the “screening and vetting protocols and procedures
associated with the visa-issuance process and USRAP [the United States Refugee
Admission Program].” Second Am. Compl. Ex 1, at 2.
The March 6 EO identified characteristics of six countries that demonstrate
that their nationals, if admitted to the United States, pose an enhanced risk to our
nation’s security, including being designated a state sponsor of terrorism;
containing active combat zones that make it impossible to provide security against
extremist groups; providing terrorists a safe haven; and (combined with conditions
such as the foregoing) having such a chaotic governmental structure that
background checks on would-be entrants to the United States are extremely
difficult or impossible to conduct. Id. at 4-5. President Trump directed a review of
what additional information would be needed to adjudicate applications by
nationals from these countries to ensure “that the individual is not a security or
public-safety threat.” Id. at 6.
The March 6 EO also recognized that terrorists have used the refugee
programs of other nations to commit acts of terror. Id. at 3. To ensure that such
heinous acts are not committed on U.S. soil, the March 6 EO directed the review of
USRAP to ensure those who seek admission to our country as refugees do not pose

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a threat to the security and well-being of our citizens. See id. at 10-11. The March
6 EO becomes effective at 12:01 am, eastern daylight time on March 16, 2017. In
response to the March 6 EO the state of Hawai’i amended its complaint and filed a
motion for a temporary restraining order against it on March 8, 2017.
ARGUMENT
I.

THE MARCH 6 EXECUTIVE ORDER DOES NOT CONFLICT WITH
EITHER THE IMMIGRATION AND NATIONALITY ACT OR THE
ADMINISTRATIVE PROCEDURE ACT.
Plaintiffs allege that the March 6 EO, “together with statements made by

Defendants concerning their intent and application, discriminate on the basis of race,
nationality, place of birth, and/or place of residence in the issuance of visas” in
violation of 8 U.S.C. § 1152(a)(1)(A), INA 202(a)(1), which “prohibits
discrimination in the issuance of immigrant visas on the basis of race, nationality,
place of birth, or place of residence.” Amended Complaint, Doc. No. 64, ¶¶ 127-31.
This is the only specific immigration statute which Plaintiffs allege has been violated
by the provisions of the March 6 EO.
As a general matter, Plaintiffs’ contention that Congress’s shift from
national origin-based immigration quotas in 1965 was meant to bind the
President’s hands in a situation such as this – where nationals of certain countries,
taken at random, have an enhanced likelihood of being terrorists dedicated to the
indiscriminate killing of Americans, and where conditions in those countries make

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background checks on applicants for entry extremely difficult or impossible – is
extremely implausible. Indeed, it was to meet just such then-unforeseen situations
as the present one that Congress gave the President such textually-unrestricted
power to exclude classes of aliens in the national interest.
Furthermore, § 1152(a)(1)(A) only applies to visa petitioners who have sought
immigration status under INA § 204.

Also, Plaintiffs have ignored that §

1152(a)(1)(A), by its terms, exempts multiple large and varied classes of aliens from
its statutory anti-discrimination protections. These exempted alien classifications
include, inter alia, LPRs who are designated special immigrants (“section[]
101(a)(27)”1), immediate relatives (“section … 201(b)(2)(A)(i)), family and
employment-based allocation preferences and diversity visa beneficiaries (“section
… 203”), and aliens barred by restrictions based on per country quotas (“paragraph
2”). Plaintiff Elshikh claims to be harmed by discrimination against his Syrianorigin wife. However, her Syrian national mother is in the process of applying for
an immigrant visa as an immediate relative – a classification excluded from §
1152(a)(1)(A) protection. Amended Complaint, ¶¶ 25-27, 85-87. Disparities in
immigrant visa issuance based on religion that might constitute a “disparate impact”

INA § 101(a)(27)(A) (“Definitions”), codified at 8 U.S.C. § 1101(a)(27)(A), designates “an
immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit
abroad” as a “special immigrant.”
1

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if applied to citizens in the domestic context are also exempted by the omission of
the word “religion” from the anti-discrimination rule.2
Next, Plaintiffs alleged generally that in implementing sections 2 and 6 of the
March 6 EO, defendants “have exceeded their statutory authority, engaged in
nationality and religion-based discrimination, and failed to vindicate statutory rights
guaranteed by the INA,” and thus “acted arbitrarily and capriciously” in violation of
the Administrative Procedure Act. Amended Complaint, ¶¶ 137-41. This APA
claim is non-justiciable. The APA does not provide a cause of action, “to the extent
that there is involved a … foreign affairs function of the United States, or where
agency action is committed to agency discretion by law.” 5 U.S.C. §§ 553(a)(1),
701(a)(2).
Also, § 701(a)(2) of the Administrative Procedure Act precludes judicial
review where agency action is committed to agency discretion by law. The strong
presumption of reviewability under the APA notwithstanding, see Abbott Labs. v.
Gardner, 387 U.S. 136, 140 (1967), agency action is committed to the agency’s
discretion and unreviewable when “statutes are drawn in such broad terms that in a
given case there is no law to apply,” Citizens to Preserve Overton Park, Inc. v. Volpe,
2

For example, the 2008 National Defense Appropriations Act designates Iraqi members of a
religious or minority community that has been identified by the Secretary of State as a
persecuted group and whose members have immediate relatives or family-preference relatives in
the United States as refugees eligible for priority (P-2) visa processing. This would also be
prohibited discrimination under Plaintiff’s theory of the case. See P.L. 110-181, title XII,
subtitle C, §1243 (2009).
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401 U.S. 402, 410, (1971), or there is “no meaningful standard against which to
judge the agency's exercise of discretion.” Id.
Neither § 1152(a)(1)(A) nor any of the statutes governing the suspension of
entry or the revocation of visas summarized infra imposes any such limitations on
the discretion offered the President, including discretion exercised by his Secretaries
of Homeland Security or State. See e.g. 8 U.S.C. §§ 1182(f), 1185(a), 1201(i).
Rather, they explicitly confer the widest discretion.
Similarly, while the APA generally requires notice and comment before
implementation of a federal action, 5 U.S.C. § 553, in this case the proclamation
clearly falls under not one but two statutory exemptions to the notice and comment
rule; the “good cause” and “foreign affairs function” exceptions to these APA
requirements. See 5 U.S.C. §§ 553(a)(1), 553(b)(3)(B). The exemptions reflect the
maxim of international law that the “power to exclude aliens is inherent in
sovereignty, necessary for maintaining normal international relations and defending
the country against foreign encroachments and dangers – a power to be exercised
exclusively by the political branches of government.” Kleindienst v. Mandel, 408
U.S. 753, 765, (1972) (quoting The Chinese Exclusion Case, 130 U.S. 581, 609,
(1889)). Plaintiffs are thus unlikely to succeed on their procedural claim that
defendants “did not follow the rulemaking procedures required by the APA…” See
Amended Complaint, ¶¶ 142-48.

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II.

A COMPREHENSIVE STATUTORY SCHEME CONFERS BROAD
POWER ON THE PRESIDENT TO PROMULGATE THE MARCH 6
EXECUTIVE ORDER.

The INA is “the comprehensive federal statutory scheme for regulation of
immigration and Nationality.” De Canas v. Bica, 424 U.S. 351, 353 (1976). These
immigration provisions constitute an integral statutory scheme. See K-Mart
Corporation v. Cartier, 486 U.S. 281 (1988) (the language of a statute should be
construed with regard to the wording and design of the statute as a whole); United
States v. Hockings, 129 F.3d 1069, 1071 (9th Cir. 1997) (same). In the INA,
Congress has exercised its plenary authority to delegate enforcement of the
comprehensive system of federal immigration laws.
A. General INA provisions authorize presidential action by proclamation
to suspend and restrict the entry of any alien under the dual visa and
admission stages of lawful entry.
The general rules setting forth executive authority delegated by Congress to
the President to restrict the entry or reentry of any alien are found in six
interrelated general provisions of the INA:
(1)

INA § 215 (a)(1) (“Travel Control of Citizens and Aliens” /
“Restrictions and Prohibitions”),

(2)

INA § 212(f) (“Excludable Aliens”/ “Suspension of entry or
imposition of restrictions by President”),

(3)

INA § 235(a)(1) (“Inspection by Immigration Officers” / “Aliens
treated as applicant for admission”),

(4)

INA § 221(h) (“Issuance of Visas” / “Nonadmission upon arrival”),
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(5)

INA § 212(a)(7) (“Excludable Aliens” / “Documentation
Requirements”), and

(6)

INA § 221(i) (“Issuance of Visas” / “Revocation of visas or
documents”).

The first general rule undergirding the EO is INA § 215 (a)(1), a sweeping
general exercise of congressional plenary power. 8 U.S.C. § 1185(a)(1). In
relevant part, INA § 215 (a)(1) makes it “unlawful for any alien … to enter or
attempt … to enter the United States except under such reasonable rules,
regulations, and orders, and subject to such limitations as the President may
prescribe.” Both the rescinded and current EOs are clearly “order[s]” from the
President that include multiple “limitations” on the legal capacity of certain aliens
“to enter the United States.” Since the enactment of the Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. 104-208, 110 Stat.
3009-546 (1996), however, the term “entry” has been replaced with the term
“admission.” 8 U.S.C. § 1101(a)(13). IIRIRA made millions of aliens unlawfully
present in the United States excludable: “An alien present in the United States
without being admitted or paroled, or who arrives in the United States at any time
or place other than as designated by the Attorney General, is inadmissible.” INA §
212(a)(6)(A)(i).
There is a long modern history of presidential use of § 215(a)(1). For
example, in 1979 President Jimmy Carter issued an executive order applying entry
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restrictions only on “Iranians.” EO 12172, Delegation of Authority With Respect
to Entry of Certain Aliens Into the United States.3 EO 12172, along with a
subsequent April 1980 EO that expanded the presidential exclusion action by
removing a limitation that the original EO applied only to “Iranians holding
nonimmigrant visas”; both were expressly implemented pursuant INA § 215.4
The second general rule, INA § 212(f), is a sweeping plenary act by
Congress delegating to the President the authority to “suspend the entry of any
aliens or any class of aliens” by “proclamation.” 8 U.S.C. § 1182(f), Mow Sun
Wong v. Campbell, 626 F.2d 739, 743 (9th Cir. 1980). Suspension of entry may
occur “whenever the President finds that [such] entry would be detrimental to the
interests of the United States” and continue “for such period as he may deem
necessary.” Section 212(f) was enacted as part of the 1952 Immigration and
Nationality Act (“INA”).

“By virtue of the authority vested in me as President by the Constitution and laws of the United
States, including the Immigration and Nationality Act, as amended, 8 U.S.C. § 1185 and 3
U.S.C. § 301, it is hereby ordered as follows: SECTION 1-101. Delegation of Authority. The
Secretary of State and the Attorney General are hereby designated and empowered to exercise in
respect of Iranians holding nonimmigrant visas, the authority conferred upon the President by
section 215(a) (1) of the Act of June 27, 1952 (8 U.S.C. § 1185), to prescribe limitations and
exceptions on the rules and regulations governing the entry of aliens into the United States.
SEC. 1—102. Effective Date. This order is effective immediately. JIMMY CARTER, The
White House, November 26, 1979. [Filed with the Office of the Federal Register, 10:45 a.m.
November 27, 1979].”
3

4

EO 12206, Amendment of Delegation of Authority With Respect to Entry of Certain Aliens
Into the United States (Apr. 7, 1980).
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The legislative history supports a finding that its scope was intentionally
broad. See H.R. Rpt. 1365, 82d Cong., 2d Sess., at 53 (Feb. 14, 1952) (“The bill
vests in the President the authority to suspend the entry of all aliens if he finds that
their entry would be detrimental to the interests of the United States, for such
period as he shall deem necessary.”). As with § 215, since 1996 the meaning of
“entry” in § 212(f) has also been changed by the repeal of the entry definition and
its replacement with “admission.”
While the suspension of entry authority only applies to entry “as immigrants
or nonimmigrants,” § 212(f) further authorizes the President to “impose on the
entry of aliens any restrictions he may deem to be appropriate.” 8 U.S.C. §
1182(f). So long as those “restrictions” do not constitute a suspension of all
admissions for the affected class, this restriction authority thus applies on its face
to any entry, and to classes of aliens who are not immigrants or nonimmigrants.
To date, no court has identified any limits on Presidential § 212(f)
proclamation authority. In none of the approximately 43 uses of § 212(f)
proclamation authority between the Reagan and Obama administrations
documented by the Congressional Research Service, has any court ever questioned
the discretion of the president to make the prerequisite finding for a § 212(f)
proclamation – that the entry of the disfavored aliens would be “detrimental to the

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interests of the United States.” 8 U.S.C. § 1182(f); Manuel, K.M., Executive
Authority to Exclude Aliens: In Brief, Table 1, CRS (Jan. 23, 2017).
The only Supreme Court case to address the scope of the § 212(f)
proclamation power held that Executive Order 12807 (effective June 1, 1992)
(suspending the entry of aliens coming to the United States by sea without required
documentation) was authorized pursuant to § 212(f) and did not conflict with U.S.
obligations towards refugees under the INA or the United Nations Convention
Relating to the Status of Refugees. Sale v. Haitian Centers Council Inc., 509 U.S.
155, 172 (1993) (“The 1981 and 1992 Executive Orders expressly relied on
statutory provisions [§212(f)] that confer authority on the President to suspend the
entry of ‘any class of aliens’ or to ‘impose on the entry of aliens any restrictions he
may deem to be appropriate.’”) That Order had “suspend[ed] the entry” of aliens
fleeing Haiti, and ordered interdiction at sea and direct repatriation only for Haitian
nationals, without affording them an opportunity to raise claims for asylum or
withholding of removal.
Prior to the Sale decision, the Eleventh Circuit had upheld the President’s
exercise of §212(f) authority under a 1981 executive order suspending entry
through interdiction referenced by the Supreme Court in Sale. Haitian Refugee
Center Inc. v. Baker, 953 F.2d 1498 (11th Cir 1992). Section 212(f) “clearly

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grants the President broad discretionary authority to control the entry of aliens into
the United States.” Id. at 1507.
In the Ninth Circuit, the U.S. District Court for the Northern District of
California similarly emphasized the breadth of the executive’s power over entry
under § 212(f) in a post-IIRIRA 1996 decision, stating,
The exclusion of aliens is a fundamental act of sovereignty. The right to
do so stems not alone from legislative power but is inherent in the
executive power to control the foreign affairs of the nation. When
Congress prescribes a procedure concerning the admissibility of aliens,
it is not dealing alone with a legislative power. It is implementing an
inherent executive power.
Encuentro del Canto Popular v. Christopher, 930 F. Supp. 1360, 1365 (N.D. Cal.
1996) (citing Knauff v. Shaughnessy, 338 U.S. 537 (1949)).
At the agency level, the Department of State has construed the application of
§ 212(f) proclamations over departmental functions to be very broad. The State
Department’s Foreign Affairs Manual considers § 212(f) proclamations as giving
the Secretary “authority to identify individuals covered by the presidential
proclamation and waive its application for foreign policy or other interests.” 9
FAM 302.11-3(B)(1).
Although the § 212(f) proclamation power expressly applies to “any class of
aliens as immigrants or nonimmigrants,” there may be an effective limitation on its
application to lawful permanent resident aliens (LPRs). When IIRIRA enacted the
admission definition at INA § 101(a)(13), it also carved out a set of exceptions to
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the requirement for mandatory inspection (as “applicants for admission” under
INA 235(a)) applicable to most LPRs returning from a visit abroad of less than 180
days. See 8 U.S.C. § 1101(a)(13)(C). The exceptions are relatively narrow,
however, as aliens with immigrant visas who apply for admission for the first time
are not yet LPRs, and thus remain subject to the presidential proclamation powers
in both INA § 212(f) and § INA 215.
In any case, Section 3 of the March 6 EO, unlike rescinded EO 13769,
expressly excludes “any” LPR from its coverage.
Next, Congress has mandated not one but two overlapping statutory
processes for the regulation of entry. Issuance of a visa only enables an alien to
appear at a port of entry for inspection, and to prove his right to admission, if any.
U.S. ex rel. Strachey v. Reimer, 101 F.2d 267, 269 (2d. Cir. 1939). This dual
character of the entry process is implemented by a third general provision, INA §
235(a)(1). Section § 235(a)(1) mandates that every alien “who arrives in the
United States … shall be deemed for purposes of this Act an applicant for
admission.” 8 U.S.C. § 1225(a)(1). Closely related is INA § 212(a)(7), a fourth
general rule that any applicant for admission who is not in possession of a “valid”
visa, or has not been granted a waiver from these documentary requirements, is
inadmissible. 8 U.S.C. § 1182(a)(7). Related INA § 235(b)(7) further mandates
that arriving aliens are “to be removed from the United States without further

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hearing” if they are inadmissible for failure to comply with the documentation
requirements in INA § 212(a)(7) – for example, possession of a valid passport and
visa.
These provisions confirm the two-stage nature of alien entry; travel to a port
of entry under a visa issued by the Department of State, followed by inspection and
admission by the Department of Homeland Security. See, e.g., Knoetze v. U.S.
Dep’t of State, 634 F.2d 207, 212 (5th Cir. 1981) (visa revocation and removal
distinct statutory functions of separate departments). In that regard this Court’s
attention is invited to INA § 221(h), a fifth general provision establishing that no
alien who has been issued an immigrant or nonimmigrant visa is thereby entitled to
admission, if found inadmissible upon arrival at a port of entry under “any
provision of law.” 8 U.S.C. § 1201(h).
Most significant for the exercise of presidential exclusionary power by
proclamation is a sixth general statute, INA § 221(i). Section 221(i) is a plenary
delegation power by Congress to the Secretary of State of general authority to
revoke “at any time, in his discretion” a visa or other entry documentation issued to
an alien. 8 U.S.C. § 1201(i). Notice of revocation must be “communicated” to the
Secretary of Homeland Security. Upon such communication, the visa becomes
invalid from the date of issuance. On its face, § 221(i) “confines neither the
consular officer nor the Secretary of State to any reason for revoking, and requires

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no notice to the alien, no opportunity to respond, nor any procedure for the
revocation.” Gordon et al., Immigration Law & Procedure, §12.06.12[b] (Apr.
2016).
There is a relevant distinction between revocation of a visa by a consular
officer, who must provide a ground for revocation pursuant to regulations at 8
C.F.R. §205, and revocation by the Secretary of State or her delegate, who is not
bound by those regulatory limitations. Noh v. INS, 248 F.3d 938, 941 (9th Circuit
2001). As the Secretary of State is in turn a delegate of the President, and was
directed to act in sections 5, 6, 7, and 9 of the March 6 EO, the general revocation
power applies.
Section 221(i) is also a court-stripping provision, whereby Congress has
barred judicial review of a revocation by any means (including habeas corpus),
with one narrow exception: Visa revocations occurring “in the context of a
removal proceeding if such revocation provides the sole ground for removal under
section 237(a)(1)(B).” 8 U.S.C. § 1201(i). When exercised through the
Department of State, the president’s power of visa revocation by proclamation thus
applies to both arriving applicants and admitted aliens alike.
Visa revocation does not strip aliens who were previously lawfully present
of a due process right to a deportation hearing in many cases. See e.g. INA §
237(a)(1)(B): (“Deportable Aliens”/ “Present in violation of law”) (providing that

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any alien whose nonimmigrant visa has been revoked per § 221(i) after admission
to the United States is deportable.) 8 U.S.C. § 1227(a)(1)(B). As noted supra,
however, the March 6 EO specifically excludes from its scope, inter alia, LPRs
and “any foreign national who is admitted to or paroled in the United States on or
after the effective date of this order.” March 6 EO § 3(a)-(b).
B. Additional specific laws enhance the executive’s general authority for
designated classes of immigrants, non-immigrants, and visa waiver
program users.
IRLI also invites this Court’s attention to relevant laws that support the
general scheme outlined above, but apply only to certain alien immigrants, nonimmigrants, or arriving aliens under the Visa Waiver Program (VWP). These
provisions modify or limit congressional delegation to the President of authority
under the six INA provisions summarized above.
First, INA § 205 (“Revocation of Approval of Petitions”/“Notice of
Revocation; Effective Date”), codified at 8 U.S.C. § 1155, is a specialized plenary
enactment by Congress authorizing the Secretary of Homeland Security to “revoke
the approval of any petition approved by under [INA] section 204.” A “petition” is
an application for an immigrant visa pursuant to detailed procedures in INA § 204.
Congress provided that revocation may be ordered “at any time, for what he deems
good and sufficient cause” and “shall be effective as of the date of approval.”

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Significantly, visa revocation may occur whether or not the alien is in the United
States.
As with the relevant statutes governing issuance and revocation of
immigrant visas, Congress has also qualified its plenary delegation of executive
branch authority over non-immigrant visas in two miscellaneous INA provisions,
as well as two other specific statutes that limit the eligibility of aliens for travel to
the U.S. or admission under the Visa Waiver Program (VWP).
Next, INA § 217(a)(6) (“Visa Waiver Program for Certain Visitors” / “Not a
safety threat”), bars entry under the VWP for any alien who has not been
“determined not to represent a threat to the … safety or security of the United
States.” 8 U.S.C. § 1187(a)(6). The plain language of the text requires an
affirmative discretionary act by the Secretary of Homeland Security. A related
provision invoked by the President, INA § 217(a)(12) (“Visa Waiver Program for
Certain Visitors”/“Not present in Iraq, Syria, or any other country of concern”),
codified at 8 U.S.C. § 1187(a)(12), bars entry under the VWP after March 1, 2011
to nationals of or visitors to Iraq, Syria, and designated “countries of concern,”
including Iran, Libya, Syria, Sudan or Yemen, absent a waiver by the Secretary of
Homeland Security. That waiver in turn requires a Secretarial determination “that
such a waiver is in the law enforcement or national security interests of the United
States.” INA §§ 217(a)(12)(A), (C), (D).

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For purposes of exclusion by proclamation, the INA § 217(a)(12) ban on
VWP entries from the six nations under statutory scrutiny for concerns about
inability to screen potential terrorists is closely related to another relevant statute
codified in Title 8 but not part of the INA: 8 U.S.C. § 1735 (“Restriction on
issuance of visas to nonimmigrants from countries that are state sponsors of
terrorism.”) Section 1735 restricts the issuance of visas to “any alien from a
country that is a state sponsor of terrorism,” unless the Secretary of State has
determined, in consultation with the Attorney General and heads of other
appropriate United States agencies, that such alien does not “pose a threat to the
safety or national security of the United States.” Id. Currently, Syria (1979), Iran
(1984) and Sudan (1993) are designated state sponsors of terrorism. See
https://www.state.gov/j/ct/list/c14151.htm (visited February 8, 2017).
Finally, INA § 207(c)(1) (“Annual Admission of Refugees and Admission of
Emergency Situation Refugees” / “Admission of Attorney General of refugees”),
conditions the entry of refugees and derivative relatives upon, inter alia, the
determination by the President of a quota for so-called normal refugee admission,
and the discretion of the Secretary of Homeland Security to admit special
humanitarian refugees. 8 U.S.C. § 1157(c)(1). Refugee applications from nondesignated countries are not accepted. That discretionary power over the

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admission of refugees (120-day suspension of USRAP) is evoked by Section 6 of
the March 6 EO.
A refugee is only conditionally admitted to the United States, and may be
placed in removal proceedings even if his refugee status has not been terminated.
Matter or Smirko, 23 I. & N. Dec. 836, 840 (B.I.A. 2005). Conditionally admitted
refugees must resubmit to inspection and admission within one year before earning
automatic adjustment of status to LPR. INA § 209(a).
Department of Homeland Security policy does not permit aliens to
circumvent statutory refugee application procedures by applying for asylum after
travelling to a port of entry on a refugee visa. See Matter of Pula, 19 I. & N. Dec.
467 (B.I.A. 1987). The Secretary need not grant asylum even if an applicant meets
the definition of refugee. INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987).
The Secretary of Homeland Security may bar the admission of an alien applying
for asylum at a U.S. port of entry who did not apply for refugee status, if he
“determines that there are reasonable grounds for regarding the alien as a danger to
the security of the United States.” INA § 208(a)(2)(A)(iv), 8 U.S.C. §
1158(a)(2)(A)(iv).
The Attorney General has construed this exclusion to apply where the record
as a whole demonstrates that the applicant presents “any non-trivial risk” to the
national defense, foreign relations, or economic interests of the United States.

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Matter of A-H-, 23 I. & N. Dec. 774, 788, 790 (Att’y Gen. 2005). As that
determination is by default made pursuant to individualized expedited screening
procedures prescribed for arriving aliens under INA § 235(b)(1), it would be
improper for this court to nullified its operation through the extremely broad grant
of temporary injunctive relief requested by Plaintiffs.5
In summary, for virtually all classes of aliens – other than lawfully admitted
permanent residents who are expressly excluded from the classes of aliens subject
to the March 6 EO – multiple layers of express statutory authority exist to support
all of the temporary restrictions on entry proclaimed by the President under the
March 6 EO, and even LPRs (who are not subject to the EO) could not claim
general exemption from the President’s exclusion-by-proclamation authority.
III.

THE STATUTORY SCHEME FOR EXPELLING ALIENS BY
EXECUTIVE PROCLAMATION DERIVES FROM PLEANARY
POWER ASSIGNED IN THE CONSTITUTION TO CONGRESS AND
DELEGATED TO THE PRESIDENT, AND IS PRESUMPTIVELY
CONSTITUTIONAL.
The United States Constitution, and the Supreme Court’s constitutional

jurisprudence construing the separation of powers among the three branches of
government, strongly undergirds Congress’s comprehensive legislative scheme to

5

INA § 208(a)(2)(C) further authorizes the Secretary of Homeland Security to
“establish additional limitations and conditions, consistent with this section, under
which an alien shall be ineligible for asylum under paragraph (1)” -- that is, in
addition to status as a refugee. These additional conditions may only be imposed
by regulation, and thus do not extend to the EO at issue. 8 U.S.C. § 1158(a)(2)(C).
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regulate immigration. The Constitution assigns almost all immigration-related
powers to Congress.
The conditions for entry of every alien, the particular classes of aliens
that shall be denied entry altogether, the basis for determining such
classification, the right to terminate hospitality to aliens, [and] the
grounds on which such determination shall be based, have been
recognized as matters solely for the responsibility of the Congress….
Harisiades v. Shaughnessy, 342 U.S. 580, 596-97, (1952) (Frankfurter, J.,
concurring)6 Under Art. I, § 8, cl. 4, the plenary authority of Congress over aliens
is not open to question. INS v. Chadha, 462 U.S. 919, 940 (1983).
Congress has “plenary power to make rules for the admission of aliens and
to exclude those who possess those characteristics which Congress has forbidden.”
Kleineinst v. Mandel, 408 U.S. 753, 766 (1972) (quoting Boutilier v. INS, 387 U.S.
118, 123 (1967)).
“When Congress delegates this plenary power to the Executive, the
Executive's decisions are likewise generally shielded from administrative or
6

See also Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581, 604-05,
609 (1889) (finding congressional plenary power over immigration based on a cumulative range
of enumerated powers over other issues, the structure of the Constitution, and the international
law of sovereignty), Fong Yue Ting v. United States, 149 U.S. 698, 703 (1893)("the power to
exclude or to expel aliens ... is to be regulated by treaty or by act of Congress."); see, e.g., U.S.
Const. art. I, § 9, cl. 1 ("The Migration or Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one
thousand eight hundred and eight ... ."); Art. I, § 8, cl. 4 (granting Congress the power "to
establish a uniform Rule of Nationality"); Zivitofsky v. Clinton, 132 S. Ct. 1421, 1436 (2012)
(Art. I, § 8, cl. 3, granting Congress the power "to regulate Commerce with foreign Nations, and
among the several States” includes the power to regulate the entry of persons into this country);
Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (citing Art.I, § 8, cl. 4 as giving rise to the
power over immigration).
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judicial review.” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016).
In particular, the Supreme Court has “long recognized” that “the power to expel or
exclude aliens as a fundamental sovereign attribute exercised by the Government's
political departments largely immune from judicial control." Fiallo v. Bell, 430
U.S. 787, 792 (1977) (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)).
The Constitution itself confers no enumerated powers over immigration
upon the President. But under Constitution Art. II §§ 1and 2, the President has
power to supervise conduct of the executive branch, including the agencies
regulating immigration. INS v. Legalization Assistance Project, 510 U.S. 1301
(1993). INA §103 assigns to the Secretary of Homeland Security a mandatory
duty to enforce all laws relating to immigration, and to guard against “the illegal
entry of aliens.” 8 U.S.C. § 1103(a)(1), (5). The legislative scheme delegates
carefully circumscribed enforcement duties to the executive branch and provides
statutory remedies for aliens seeking affirmative relief from removal.
If Plaintiffs were correct in their constitutional claims, large swaths of this
comprehensive statutory scheme, repeatedly upheld by the Supreme Court, would
be invalid. This result is immensely unlikely. Plaintiffs, therefore, are no more
likely to succeed on their constitutional claims than on their statutory ones.

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CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for a temporary restraining order
should be denied.
DATED: Honolulu, Hawaii, March 12, 2017.

\s\ Denise M. Hevicon___________.
DENISE M. HEVICON
\s\ Christopher J. Hajec___________.
CHRISTOPHER J. HAJEC
Attorneys for Amicus Curiae

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