The President’s recent executive order on immigration triggered heated debate in the immigration community and throughout the nation, and left many questioning the President’s authority to issue such a sweeping ban on foreign nationals entering the US.
In support of his authority to issue the executive order, the President cites Immigration and Nationality Act (INA) 212(f), which states:
"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."
While little executive branch guidance exists to interpret this broad authority, the Foreign Affairs Manual (FAM) provides further insight into the application of this executive power at 9 FAM 302.14-3(B)(1).
9 FAM 302.14-3(B)(1) (U) In General
a. (U) Basis for Suspension of Entry: INA 212(f) authorizes the President to suspend entry into the United States of any aliens or any class of aliens or to "impose on the entry of aliens any restrictions he may deem appropriate" for such period as he deems necessary upon determining that their entry would be detrimental to the interests of the United States.
b. (U) Presidential Proclamations: The President exercises this authority by issuing a Presidential Proclamation ("PP") barring certain aliens or a class of aliens ineligible for entry into the United States or imposing appropriate restrictions on their entry.
(1) (U) A Presidential Proclamation typically grants the Secretary of State authority to identify individuals covered by the presidential proclamation and waive its application for foreign policy or other national interests.
(2) (U) Some Presidential Proclamations bar entry based on affiliation, such as:
(a) (U) PP 7062 (suspends the entry of members of the military junta in Sierra Leone and members of their families); and
(b) (U) PP 6958 (suspends the entry of members of the Government of Sudan, officials of that Government, and members of the Sudanese armed forces).
(3) (U) Other Presidential Proclamations suspend the entry of persons based on objectionable conduct. Examples include:
(a) (U) PP 7524 (suspends the entry of persons responsible for actions that threaten Zimbabwes democratic institutions and transition to multi-party democracy); and
(b) (U) PP 7750 (suspends the entry of certain persons engaged in or benefitting from corruption).
The above FAM guidance suggests that a President may exercise his or her broad authority under INA 212(f) through Presidential Proclamations which bar certain aliens or a class of aliens ineligible for entry into the U.S. or impose restrictions on their entry. It further notes that a proclamation typically grants the Secretary of State authority to identify individuals covered by the proclamation, and waive its application for foreign policy and other national interests. In addition, the guidance gives examples of bases for suspending entry to foreign nationals based on affiliation, including suspending entry of members of the military in Sierra Leone and members of the government of Sudan, and based on persons’ objectionable conduct, including persons responsible for actions that threaten Zimbabwe’s democratic institutions, and persons engaged in or benefitting from corruption.
The recent executive order generally comports with this guidance. Although not officially titled a Presidential Proclamation, the order “proclaims” that the entry of immigrants and nonimmigrants of covered countries, Syrian refugees, and more than 50,000 refugees in fiscal year 2017, would be “detrimental to the to the United States” and suspends entry of these individuals. In addition, the order grants the Secretary of State and Secretary of Homeland Security the authority to identify countries covered in Section 3(c) of the order by referring to 8 USC 1187(a)(12), and grants the Secretary of State and Secretary of Homeland Security the authority to waive, on a “case-by-case” basis, and “when in the national interest” the order’s application to foreign nationals identified in Section 3(c) and Section 5(a) of the order. Unlike the FAM, however, which narrowly identifies covered individuals based on their affiliations or objectionable conduct, the executive order provides, as a sole basis for suspension, an individual’s nationality or status as a refugee.
While the full impact of the executive order is yet to be confirmed, a glimmer of hope lies in Secretary John Kelly’s announcement that, “In applying the provisions of the president’s executive order…entry of lawful permanent residents is in the national interest,” and “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” One can hope such discretion will continue to be applied liberally to the provisions of the executive order.