Justice Department in Transition Defends Trump’s Visa Ban

A Justice Department lawyer said Friday that recent court rulings make clear the president has sweeping authority to ban immigration, including to prevent noncitizens from competing with Americans for scarce jobs during a recession.

In this Feb. 19, 2019 file photo, children line up to enter a tent at the Homestead Temporary Shelter for Unaccompanied Children in Homestead, Fla. (AP Photo/Wilfredo Lee)

SAN FRANCISCO (CN) — Despite a recent change in leadership, the U.S. Justice Department on Friday defended former President Donald Trump’s ban on the entry of foreign nationals that “present risk” to unemployed Americans during economic recovery from the Covid-19 pandemic.

Trump issued a proclamation on April 23, 2020, banning immigrant visas for all noncitizens outside the U.S., with exceptions for legal permanent residents, children of U.S. citizens under age 21 and EB-5 visa applicants, among others. The 60-day ban was extended through the end of 2020 and later continued through March 31 this year.

More than 260 noncitizens and their U.S. sponsors sued the Trump administration in November. They seek a preliminary injunction to invalidate the proclamation and make the State Department start processing visa applications and requests for entry for a class of hundreds of thousands of immigrants. 

The proposed injunction would apply to all immigrants seeking entry to the U.S. through family-based visa applications, employment-based visas and the diversity visa program.

During a virtual hearing Friday, plaintiffs’ attorney Charles Kuck argued the law does not permit the president to ban immigrant visas without support to back up his claim that noncitizens threaten unemployed Americans’ job prospects.

“There was literally no basis for claiming that barring entry of the U.S. for someone’s aged parent or minor child of a permanent resident would result in the displacement of U.S. workers,” Kuck said.

Several other judges have overturned Trump’s proclamations that sought to restrict immigration to prevent foreign workers from competing for American jobs. In October last year, U.S. District Judge Jeffery White in Oakland, California, found Trump overstepped his authority by suspending certain types of non-immigration work visas.

The Justice Department maintains that the president has “broad discretion” to restrict immigration. That’s what the Supreme Court found when it upheld Trump’s travel ban on several Muslim-majority nations in the 2018 ruling, Trump v. Hawaii

The plaintiffs argued that was a different situation because it involved national security issues and not domestic policy concerns, but a recent Ninth Circuit decision may have undermined that argument.

On Dec. 31, the Ninth Circuit found Trump was acting within his authority when he issued a separate proclamation barring entry to immigrants without health insurance or the means to pay for hospital bills.

U.S. District Judge Richard Seeborg said that decision in Joe Doe #1 v. Trump appears to have expanded the president’s power to suspend immigration for reasons beyond national security.

“Doesn’t Doe #1 put you in a jam here,” Seeborg asked.

Kuck said that decision does not bind the court because no mandate has been issued yet and an en banc rehearing could reverse the result. Even if that decision applies, Kuck said the plaintiffs would still prevail because in this case Congress already considered the effect of immigration on the labor market and prioritized family unification and diversity over those concerns when it passed the Immigration and Nationality Act.

“Here the proclamation jettisoned Congress’s policy judgment and ignored that Congress already implemented safeguards in the employment sector,” Kuck argued.

Defending Trump’s visa ban, Assistant U.S. Attorney Valerie Smith argued an injunction would not address the plaintiffs’ complaint because other obstacles prevent them from obtaining visas and entering the country.

U.S. embassies and consular offices have been operating at limited capacity since the start of the pandemic, she said. All federal agencies were directed to take steps to slow the spread of the virus, and many consular offices are not interviewing visa applicants at this time, which would make it harder to obtain a visa.

The judge did not appear convinced that separate obstacles to obtaining a visa could prevent the court from halting a potentially unlawful suspension of immigration.

“Don’t you have standing because it’s part of the process that’s being thwarted here,” Seeborg asked.

Smith suggested that granting an injunction would be tantamount to the court telling the State Department’s consular offices how they should be run during a pandemic.

Seeborg disagreed.

“I wouldn’t be telling them how to operate,” Seeborg said. “I would simply be saying the presidential proclamation is no longer in place to affect your operations.”

Smith insisted that any court action would interfere with consular officers’ sole discretion to issue or withhold visas. How consular officers choose to interpret the presidential proclamation and handle visa applications are protected by an “extension of the non-reviewability doctrine,” she said.

Kuck replied that consular non-reviewability “simply doesn’t apply here.”

“They haven’t made a decision,” Kuck said. “The doctrine of consular non-reviewability is simply irrelevant to this process.”

After more than two hours of debate, Seeborg took the arguments under submission.

Seeborg asked both sides to keep him abreast of any pertinent changes, such as a potential recission of the proclamation by President Joseph Biden’s administration. On Wednesday, Biden revoked Trump’s travel ban affecting mostly Muslim-majority and African nations on his first day in office.

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