On February 21, after Russian President Vladimir Putin ordered his armed forces to invade two breakaway regions of Ukraine after recognizing them as independent, President Biden issued an executive order declaring that:
The unrestricted immigrant and nonimmigrant entry into the United States of [any individual determined by the Secretary of the Treasury (SOT), in consultation with the Secretary of State (SOS) to be or have been since the date of this order:
a leader, official, senior executive officer, or member of the board of directors of an entity operating in the “Donetsk People’s Republic” or “Luhansk People’s Republic” regions of Ukraine, or to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any such individual or any entity whose property and interests in property are blocked pursuant to this order]
would be detrimental to the interests of the United States.
Biden’s order then suspended “the entry of such [individuals] into the United States, as immigrants or nonimmigrants ... except where the SOS or the Secretary of Homeland Security [SHS], as appropriate, determines that the person’s entry would not be contrary to the interests of the United States.”
Back in 2014, following Russia’s invasion and annexation of Ukraine’s Crimean Peninsula, President Obama issued a proclamation declaring that:
I hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of aliens determined [by the SOT, in consultation with the SOS:
to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any individual or entity whose property and interests in property are blocked pursuant to this order, or to have acted or purported to act for or on behalf of, directly or indirectly, any individual or entity whose property and interests in property are blocked pursuant to this order]
would be detrimental to the interests of the United States.
The proclamation then similarly “suspend[ed] entry into the United States, as immigrants or nonimmigrants, of such [individuals].”
On what basis did Presidents Biden and Obama issue these directives? Given Putin’s ongoing invasion of the whole of Ukraine and his attempt to overthrow its democratically elected government, what further actions could President Biden take to limit the entry of Russian nationals into the United States or remove those who are already here?
These questions are of more than just academic interest. Fairly large numbers of Russian nationals come to the U.S. on temporary (nonimmigrant) visas, though relatively fewer Russians receive green cards (immigrant visas).
The State Department (DOS) reports that in 2019 (and 2020, though, of course, the numbers declined during the Covid pandemic), Russian nationals were issued 179,905 (85,290) nonimmigrant visas — approximately 2 percent of all such visas issued in those years. These totals include 141,696 (69,319) B visas (tourists and business visitors), 16,358 (8,622) C-1/D visas (crewmembers or in-transit through the U.S.), 5,080 (1,386) F visas (students), 910 (417) H visas (high-skilled, agricultural, seasonal and other temporary workers), 7,108 (1,580) J visas (exchange program visitors), 962 (330) K visas (fiancés), 2,124 (831) L visas (intracompany transferees), 754 (367) O visas (aliens with extraordinary ability/achievement), and 1,767 (833) P visas (athletes, artists, and entertainers).
The Department of Homeland Security (DHS) reports that in 2019 (and 2020), Russian citizens were admitted to the U.S. as nonimmigrants 301,321 (145,050) times (including multiple entries by individual aliens). These totals include 256,118 (123,548) admissions of Russians as B visa nonimmigrants, 17,998 (6,640) as student and exchange visitors and their spouses and children, and 15,137 (7,501) as temporary workers and accompanying family members. Of the temporary workers and their family members, 1,726 (853) were admitted as H-1B nonimmigrants, 2,155 (1,168) as O nonimmigrants, 2,147 (1,476) as P nonimmigrants, and 4,030 (1,742) as L nonimmigrants.
In 2019 (and 2020), 9,822 (7,967) Russians by birth received green cards — less than 1 percent of all green cards issued in those years. These totals include 4,441 (2,964) as immediate relatives (spouses, unmarried minor children and parents) of U.S. citizens, 555 (425) sponsored by their U.S. citizen or legal permanent resident relatives, 2,082 (2,203) employment-based, 2,190 (1,593) diversity visa lottery winners, and 534 (771) refugees and asylees adjusting status to permanent residence.
President Biden, like Presidents Trump, Obama, and others before them, has relied on a provision of the Immigration and Nationality Act of 1952 (INA), now found at § 212(f):
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.
In 1952, during House floor consideration of H.R. 5678, to be enacted as the (McCarran-Walter) Immigration Act of 1952, the bill’s author, Francis Walter, entered into a debate regarding an amendment (later decisively defeated) to limit the bill’s grant to the president of this power. Abraham Multer, the amendment’s author, stated that:
[The bill] provides that at any time the President finds the entry of any aliens or class of aliens would be detrimental to the interests of the United States he may by proclamation suspend the entry of those aliens. The first part of my amendment simply provides that instead of being able to do that at any time, the President may make a proclamation and effectuate such a suspension only in the event of a national emergency, or a state of war.
Walter responded in opposition to the amendment that:
We believe that this language "whenever the President finds that the entry of any aliens or class of aliens in the United States would be detrimental to the interests of the United States" is absolutely essential because when there is an outbreak of an epidemic in some country, whence these people are coming, it is impossible for Congress to act. People might conceivably in large numbers come to the United States and bring all sorts of communicable diseases with them. More than that, suppose we have a period of great unemployment? In the judgment of the committee, it is advisable at such times to permit the President to say that for a certain time we are not going to aggravate that situation.
Yes, § 212(f) is the provision that President Trump relied upon to institute his so-called “Muslim Ban” or “Travel Ban” — actually, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”. In Trump vs. Hawaii, the Supreme Court brushed aside statutory and constitutional challenges to the third iteration of President Trump’s proclamation and emphasized the extraordinary potency of the power that Congress granted the executive branch:
[§ 212(f)] exudes deference to the President in every clause. ... It is therefore unsurprising that we have previously observed that [it] vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. ... [We have found] it “perfectly clear” that the President could “establish a naval blockade” to prevent illegal migrants from entering the United States.
[President Trump’s] Proclamation falls well within this comprehensive delegation. The sole prerequisite ... is that the President “find” that the entry of the covered aliens “would be detrimental to the interests of the United States.”
[T]he premise that [§ 212(f)] not only requires the President to make [this] finding [of detriment] ... but also to explain that finding with sufficient detail to enable judicial review ... is questionable. ... But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of the President’s findings cannot be sustained. The ... Proclamation ... is more detailed than any prior order a President has issued under [§ 212(f)]. ... President Clinton ... explain[ed] in one sentence why suspending entry of members of the Sudanese government and armed forces “is in the foreign policy interests of the United States”. ... President Reagan ... explain[ed] in five sentences why measures to curtail “the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States” are “necessary”.
Moreover, plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. [As we have concluded, “w]hether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is “irrelevant to the scope of his [§ 212(f)] authority.”
[T]he word “class” comfortably encompasses a group of people linked by nationality. ... [T]he language ... is clear, and the Proclamation does not exceed any textual limit on the President’s authority.
The Court went on to point out that “Presidents have repeatedly suspended entry not because the covered nationals themselves engaged in harmful acts but instead to retaliate for conduct by their governments that conflicted with U.S. foreign policy interests.” In fact, the Court cited President Obama’s suspension of entry of “Russian nationals working in the financial services, energy, mining, engineering, or defense sectors, in light of the Russian Federation’s ‘annexation of Crimea and its use of force in Ukraine’” that I have mentioned. The Court also cited President Reagan’s invoking of § 212(f) to suspend entry “‘as immigrants’ by almost all Cuban nationals, to apply pressure on the Cuban Government”.
The Court also dismissed the plaintiffs’ argument that:
[T]he President’s entry suspension [to the extent it bars the entry of aliens with immigrant, as opposed to temporary, visas] violates [INA] § 202(a)(1)(A), which provides that “no person shall ... 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.” [Plaintiffs] contend that we should interpret the provision as prohibiting nationality-based discrimination throughout the entire immigration process [including a visa applicant’ eligibility for admission and the subsequent question whether the holder of a visa may in fact enter the country], despite the reference ... to the act of visa issuance alone.
[This] ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. ... [I]f a consular officer issues a visa, entry into the United States is not guaranteed. As every visa application explains, a visa does not entitle an alien to enter the United States “if, upon arrival,” an immigration officer determines that the applicant is “inadmissible[”].
Sections (f) and  thus operate in different spheres: [the former] defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). ... Once §  sets the boundaries of admissibility into the United States, § (a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. ... Had Congress instead intended in §  to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end.
Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality.
On plaintiffs’ reading ... the President [would not] be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war.
The Security and Foreign Policy Grounds of Inadmissibility
As to the general security ground of inadmissibility, § 212(a)(3)(A) of the INA provides that:
Any alien who a consular officer or the [SHS] knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in—
(i) any activity
(I) to violate any law of the United States relating to espionage or sabotage or
(II) to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,
(ii) any other unlawful activity, or
(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means, is inadmissible.
As to the foreign policy ground, § 212(a)(3)(C)(i) of the INA provides that “[a]n alien whose entry or proposed activities in the United States the [SOS] has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.” However, clause (iii) provides that:
An alien ... shall not be excludable or subject to restrictions or conditions on entry into the United States [on a foreign policy ground] because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the [SOS] personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.
DOS’s Foreign Policy Manual (FAM) for consular officers specifies that “compromise a compelling United States foreign policy interest is a significantly higher standard than the [‘]have potentially serious adverse foreign policy consequences standard[’] generally required for a finding of inadmissibility under [the foreign policy ground of inadmissibility].” The FAM goes on to state that:
An applicant who is an official of a foreign government or purported government, or who is a candidate for election to a foreign government office, may not be excluded under INA 212(a)(3)(C) solely because of any past, current, or expected beliefs, statements, or associations which would be lawful in the United States. In such cases, exclusion must be based on factors related to the applicant’s entry or proposed activities which go beyond the applicant’s beliefs, statements, and associations, and which have the requisite potential for serious adverse foreign policy consequences.
Of course, this exclusion of officials and candidates for elected office is not required by the INA and can be rescinded by DOS.
Pursuant to § 221(i) of the INA, “after the issuance of a visa ... to any alien, the consular officer or the [SOS] may at any time, in his discretion, revoke such visa”. DOS regulations also provide that DOS “may provisionally revoke an immigrant visa while considering information related to whether a visa holder is eligible for the visa. Provisional revocation shall have the same force and effect as any other visa revocation under INA 221(i).” There is similar regulatory authority for nonimmigrant visas.
As to immigrant visas, DOS instructs its consular officers that such visas can be revoked in the “[r]are [c]ircumstances [where the consular officer] know[s], or after investigation [is] satisfied, that the visa was procured by fraud, a willfully false or misleading representation, the willful concealment of a material fact, or other unlawful means[, or] obtain[s] information establishing that the individual was ineligible to receive the visa at the time it was issued[.]”Additionally, it instructs that “[a]n immigrant visa may not be revoked once [U.S. Customs and Border Protection] has admitted the visa holder into the U.S.” DOS, of course, could reconsider these policy decisions.
As to nonimmigrant visas, DOS instructs its consular officers that they can revoke visas when:
The individual is not eligible for the visa classification ... or [t]he individual is subject to an IDENT Watchlist record in System Messages for an arrest or conviction of driving under the influence ... that occurred within the previous five years.
However, a consular officer does not have the authority to revoke a visa based on a suspected ineligibility or based on derogatory information that is insufficient to support an ineligibility finding, other than a revocation based on . . . DUI. A consular revocation must be based on an actual finding that the individual is ineligible for the visa. ... Under no circumstances should [a consular officer] revoke a visa when the individual is in the United States, or after the individual has commenced an uninterrupted journey to the United States, other than a revocation based on [a DUI]. Outside of the DUI exception, revocations of individuals in, or en route to, the United States may only be done by the Department's Visa Office of Screening, Analysis, and Coordination.
However, the FAM also notes the power of “prudential” revocation of nonimmigrant visas:
Although consular officers generally may revoke a visa only if the individual is ineligible under INA 212(a) [grounds of inadmissibility], or INA 214(b) [immigrant intent], or is no longer entitled to the visa classification, the Department may revoke a visa if an ineligibility or lack of entitlement is suspected, when an individual would not meet requirements for admission, or in other situations where warranted. This is known as a “prudential revocation.” In addition ... the Department may revoke a visa when it receives derogatory information directly from another U.S. Government agency, including a member of the intelligence or law enforcement community.
The FAM goes on to advise consular officers on how to deal with visa revocation for a public figure:
The revocation of the visa of a public official or prominent local or international person can have immediate and long-term repercussions on our political relationships with foreign powers and on our public diplomacy goals in a foreign state. ... Precipitant action must ... be avoided in such high profile visa cases and post should seek the Department’s guidance prior to any visa revocation unless unusual and exigent circumstances prevent such a consultation.
Constitutional Challenges to Visa Denials and Revocations
Under the long-standing doctrine of consular non-reviewability, federal courts have no jurisdiction over visa denials to aliens overseas, as consular officers have complete discretion over the issuance and denial of visas. Federal courts have extended this doctrine to cover the revocation of visas. However, in 1972, the Supreme Court held in Kleindienst v. Mandel, that federal courts have jurisdiction to consider whether the reason an alien’s application for a waiver of visa ineligibility is facially legitimate and bona fide when U.S. citizens’ constitutional rights are threatened by the denial of the waiver. While the Court did not elaborate as to the meaning of “facially legitimate” or “bona fide,” the Court did state that it could not look behind the exercise of discretion if the government satisfies such standards. Federal courts have since extended the principle to cover visa denials, and they would likely reason that they have the same ability to review revocations.
U.S. citizens have generally asserted two relevant constitutional rights in litigation — first, that a U.S. citizen spouse has a cognizable Fifth Amendment due process interest in the refusal of a visa to her noncitizen spouse. In the case of Kerry v. Din, Supreme Court Justices Scalia, Kennedy, and Thomas concluded in 2015 that there was no such due process interest, while Justices Kennedy and Alito assumed in a concurring opinion, without deciding the issue, that a citizen spouse does have such an interest. The second asserted right is that a citizen has a First Amendment right to hear an alien’s viewpoint, which would be frustrated by a visa denial.
As the 2nd Circuit asked in American Academy of Religion v. Napolitano, “what will render the Government's reason ‘facially legitimate and bona fide’ [and] does the prohibition on ‘look[ing] behind’ the decision mean that a reviewing court may not determine, after considering evidence, whether the facts support the Government's reason?” The court ruled that:
[T]he identification of both a properly construed statute that provides a ground of exclusion and the consular officer's assurance that he or she “knows or has reason to believe” that the visa applicant has done something fitting within the proscribed category constitutes a facially legitimate reason. ... We also conclude, in agreement with the Ninth Circuit, that the absence of an allegation that the consular officer acted in bad faith satisfies the requirement that the reason is bona fide.
[W]e have to take literally the statement in Mandel that courts may not “look behind” exclusion decisions, whether the decision is the ... exercise of discretion to waive inadmissibility or the consular officer's decision that a statutory ground of inadmissibility applies to the visa applicant, at least in the absence of a well supported allegation of bad faith, which would render the decision not bona fide.
In surveying the decisions of other circuit courts, the 2nd Circuit noted that:
The decisions entertaining First Amendment challenges to visa denials after Mandel have concerned statutory grounds of inadmissibility. In Bustamante [v. Mukasey, 531 F.3d 1059 (9th Cir. 2008)], the visa was denied pursuant to § (a)(2)(C), which renders inadmissible an alien whom the consular officer has reason to believe has trafficked in a controlled substance. ... The Ninth Circuit ruled that this was a facially legitimate reason because it was a statutory basis for inadmissibility. ... The Court also ruled that the requirement of a “bona fide” reason was satisfied by the absence of an allegation that the consular officer “did not in good faith believe the information he had.”
In Abourezk[ v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986)], the visas were denied pursuant to [a since repealed provision] which rendered inadmissible aliens who “seek to enter the United States ... to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety or security of the United States.” The State Department determined that the aliens fit within that category “because of their personal status as officials of governments or organizations which are hostile to the United States.” ... The D.C. Circuit appeared to assume that a statutory ground of inadmissibility and conduct by the visa applicant fitting within the statute would satisfy the Mandel standard.
Mandel appears to foreclose any inquiry as to supporting evidence by stating that courts will not “look behind” the decision of the Executive Branch. ... The court of appeals' decisions entertaining First Amendment challenges to visa denials have varied as to the appropriateness of an evidentiary inquiry into whether the facts support the consular officer's reason. In Bustamante, the Ninth Circuit made no inquiry as to whether the facts supported the consular officer's conclusion that the visa applicant was a drug trafficker.
Also helpful are three statements in Justices Kennedy’s and Alito’s concurrence in Kerry v. Din:
[Mandel’s] reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions pertaining to visa applications by noncitizens who seek entry to this country.
Given Congress' plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” ... it follows that the Government's decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.
Under Mandel, respect for the political branches' broad power over the creation and administration of the immigration system extends to determinations of how much information the Government is obliged to disclose about a consular officer's denial of a visa to an alien abroad.
It is likely that federal courts would extend Mandel’s “facially legitimate and bona fide” standard to a contested visa revocation. However, it is not clear how a court would apply the test in the circumstance in which a visa was revoked not on the basis of a ground of inadmissibility or that an alien was not entitled to the nonimmigrant visa classification they received, but for a prudential reason.
In 2004, Congress provided DHS with specific authority to remove an admitted alien whose temporary visa has been revoked. The House bill would have completely barred judicial review. However, at the insistence of the Senate, § 221(i) of the INA now provides a right to judicial review for aliens already present in the U.S.:
There shall be no means of judicial review ... of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 237(a)(1)(B) [making deportable any alien whose nonimmigrant visa has been revoked].
The House Committee Report explained that:
[Visa] revocation is problematic ... when the alien has entered the U.S. by the time the visa has been revoked because there is no provision that allows DHS to remove an alien whose visa has been revoked. If DHS has information that establishes that the alien is otherwise removable (such as for a crime, or illness), it will place the alien in removal proceedings on those grounds. However, DHS bears the burden of proof in deportation proceedings, and if the agency cannot prove that the alien is deportable, it must allow the alien to remain until the alien’s period of authorized admission ends. This policy is a particular problem in terrorism cases because information linking an alien to terrorism is often classified, and classified information cannot be used to prove deportability. In October 2002, GAO reported that the State Department had revoked 105 visas that had been erroneously issued to aliens about whom there were questions about possible terror ties before their background checks had been completed. The GAO found that immigration agents did not attempt to track down those aliens whose visas had been revoked because of the difficulty in removing those aliens from the United States.
The Biden administration might consider requesting that Congress pass the original House-passed language and completely bar judicial review of visa revocations, in order to make such revocations usable options in cases involving classified information.