Visas: The Historical and Legal Precedent

Posted in: Immigration Law

In early February, various visa holders, including Iranians, sued to block President Trump’s executive order regarding immigration and visas. The plaintiffs were lawful permanent residents, two of whom employed at the University of Massachusetts-Dartmouth. The government detained them at Boston Logan International Airport when they returned from an academic conference outside the United States. The court refused to grant them any relief. You probably did not hear about that case because the media focused on the case in Washington State where the trial judge issued a nationwide injunction against President Trump’s order limiting immigration.

Why the difference? Judge Gorton, of the District of Massachusetts followed the federal statute while Judge Robart of Western District of Washington and the Ninth Circuit did not even mention the statute.

First, the statute, 8 U.S.C. § 1182(f), which provides, in part:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

This statute grants the president almost carte blanche power, including the power encompassed within the executive order. If this stature is unconstitutional, it means that the full power of Congress under Article I of the Constitution, combined with the full power of the president under Article II, is not enough to suspend the entry of any or all aliens coming here as visitors or immigrants.

The District of Massachusetts discusses this provision. What does the Ninth Circuit say about it? Nothing.

President Jimmy Carter used this provision to revoke the visas of Iranian students who were in the United States during the Iranian Hostage crisis, in 1979, when the new government of Iran held American embassy personnel hostage.

Professor John Eastman, my colleague at Chapman University, pointed out that some of the Iranian students who “were in Canada on a field trip when their visas were revoked,” and who were denied re-entry into the United States, were the subject of the 1987 movie, Checkpoint.

In Narenji v. Civiletti Confederation of Iranian Students (D.C. Cir. 1979), Iranian students sued to overturn President Carter’s order. The lower court held that the order was unconstitutional because it violated equal protection and made distinctions based on nationality. The D.C. Circuit promptly reversed, with no dissent.

It is common for another circuit to cite an opposing opinion in a different circuit and explain why one circuit does not follow the other. What did the Ninth Circuit say about the D.C. Circuit’s opinion? Nothing. Absolutely nothing.

This case and historical precedent is no orphan in the law. President Obama used this executive power to deny entrance to immigrants nearly 20 times during his eight years in office. In 1992, President George H.W. Bush issued an executive order that barred refugees fleeing Haiti, returned them to their home country, and did not allow them to raise asylum claims that they argued violated both federal statutes and the United Nations Convention Relating to the Status of Refugees. When President Clinton assumed office, he kept this executive order and vigorously enforced it. The Supreme Court upheld it in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).

What did the Ninth Circuit say about that? Nothing. It neither mentioned the historical examples of Presidents Carter, Bush, Clinton, or Obama, nor cited the Sale case.

Then there is the Fifth Circuit, Knoetze v. United States (5th Cir. 1981). Knoetze, a world-class boxer from South Africa, came to the United States on a non-immigrant visa to take part in a prize fight. He then discovered through the news media that his visa had been revoked. He sued, claiming a basic violation of due process. The Fifth Circuit response: “We reject Knoetze’s contention that the revocation of his visa without notice violated constitutionally mandated due process of law. We therefore affirm.” What does the Ninth Circuit say about Knoetze? Nothing.

Let’s us not forget U.S. Supreme Court case law that appears to be directly on point. First, United States ex rel. Knauff v. Shaughnessy (1950). The United States excluded—without a hearing, without any due process—the alien wife (war bride) of an American citizen solely because the Attorney General announced that her admission would be prejudicial to the interests of the United States. The Court agreed the congressional statutory scheme was constitutional and authorized this action. The citizen could not bring his wife into the country and could not find out why she was excluded. The Court held, “Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” It added, “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned” (emphasis added).

The attorney general permanently excluded the alien from the United States on undisclosed grounds. It is disquieting, but it is Supreme Court precedent, which the Supreme Court and the lower federal courts have cited over 300 times, with the latest citations in 2017, by the Ninth Circuit, in a different case, United States v. Peralta-Sanchez.

As for the Ninth Circuit, what did it say about this case? Nothing. It does not even cite its own precedent, perhaps because it is inconsistent with the result that it reached.

Several years after Knauff, the Court decided Shaughnessy v. United States ex rel. Mezei (1953). Mezei, an alien immigrant, lawfully lived in the United States from 1923–1948 and then left for Hungary to visit his dying mother. He tried to return, with a visa issued by the American Consul in Budapest. The United States denied him entry on the “basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest.” The attorney general argued that his continued exclusion of the alien without a hearing was constitutional. The Supreme Court agreed: “It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional notions of due process of law. But an alien on the threshold of initial entry stands on a different footing.”

Over 500 cases have cited Mezei with approval, including the Ninth Circuit, which quoted it in United States v. Peralta-Sanchez: “This deference is particularly powerful in the area of immigration and naturalization because the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”

What did the Ninth Circuit say about Mezei or its own precedent when it came to President Trump’s Executive Order? Nothing. Absolutely nothing.

These cases focus on procedural due process, found in the Fifth Amendment. What of the First Amendment? Same result. A leading case is Kleindienst v. Mandel (1972), which over 600 cases have cited. There, the attorney general denied a visa to an alien who supported “the economic, international, and governmental doctrines of World communism.” U.S. citizens argued that their First Amendment rights were abridged by denying Mandel’s request for a visa. The Court rejected the argument and said explicitly that it would not look at the reasons for the Executive’s exercise of discretion “nor test it by balancing its justification against the First Amendment.”

What did the Ninth Circuit say about this case? It actually cited it but only for the proposition that it does not preclude judicial review. Yet, on the merits, that case rejected the plaintiffs’ complaint and held that the government denial of the visa was proper.

What if the United States discriminates because of sex? In Fiallo v. Bell (1977), the law granted an illegitimate child immigration preference by virtue of his relationship with his natural mother, but no preference to an illegitimate child seeking preference by virtue of his relationship with his natural father. So, the law discriminated based on sex and illegitimacy. The Court rejected the constitutional challenge.

The appellants in Fiallo argued that there was “double-barreled” discrimination, based on sex and illegitimacy—and the children had no control over the actions of their parents in conceiving them as illegitimates. Thus, they argued, the law violated “the fundamental constitutional interests of United States citizens and permanent residents in a familial relationship.” The Court rejected that. The appellants then argued the Court should intervene unless there is “specifically and clearly perceived to pose a grave threat to the national security.” The Court rejected that as well.

What does the Ninth Circuit say about Fiallo? It quotes a case that quoted Fiallo, for the proposition that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Then the Ninth Circuit rejects that “fundamental sovereign attribute.”

5 responses to “Visas: The Historical and Legal Precedent”

  1. Great coverage of actions that make the 9th circuit judge a bit suspicious. I would suspect that this judge had some ex parte communication with marching orders. ( A judge shall not initiate, permit, or consider ex parte communications). I know of this happening in a case between a federal judge and a congressperson by phone in the 9-th district. Not very fair to say the least and hard to prove without knowledge of wiretap.

  2. Daniel Baker says:

    I cannot dispute Professor Rotunda’s exposition of the law. I’m not certain that Mezei is tenable any more since Zadvydas v. Davis, but since Trump’s order does not call for incarcerating anybody indefinitely, the other precedents Professor Rotunda cites clearly justify the District of Massachusetts’s ruling.

    Trump is the left’s Osama bin Laden. The worst thing that bin Laden did to America was not to murder thousands of us, but to convince many on the right to abandon the rule of law, allowing torture and the abandonment of basic concepts of due process in order to defeat him. Likewise, Trump to the left is an evil so absolute that defeating him justifies a wholesale violation and abandonment of decades’ worth of established law. And as with bin Laden, the worst damage to our society is not his own hateful and fanatical actions, but the damage he provokes his opponents to do to the law.

  3. g kelly says:

    Sounds like a set-up for an in banc hearing and/or an appeal to the US Supreme Court. Without having looked at any of these cases, it appears that the Trump’s order was far broader than the orders you discussed, and prohibits the entry of broad classes of individuals who have already been vetted, while the cases Prof. Rotunda cites dealt with the exclusion of individuals.

    But I’m sure this is only a way station in a broader lawsuit, and eventually the Supreme Court will deal with the matter.

    Readers should also be mindful that during the Obama Administration, the courts reached a number of decisions limiting the president’s discretion on immigration issues.

    • jagiela says:

      The law is more likely to look with favor the exclusion of whole classes rather than single individuals. The latter would be arbitrary while the former follows set rules

      In any event, the Iranian visa case clearly applied to a class of individuals from a specific country- just like Trump’s ban on travel from the six terror states

      The Democrats have lost every election for a decade and cling only to a few radical judges to keep themselves in power