The Practical Realities of the Immigration Law and Trump’s Executive Orders (OPINION)

Feb 2, 2017
9:06 AM

U.S. President Donald Trump signing the Protecting the Nation from Foreign Terrorist Entry into the United States order (Public Domain)

The question I keep getting asked over the past week is whether President Trump’s executive actions temporarily suspending immigration from seven predominantly Muslim countries is legal. The short answer, generally, is yes. Practically speaking, the immigration law was designed to give as much discretionary authority to the executive branch as humanly possible, and to preclude the judicial branch from being able to review those decisions.

Now for the long answer.

The Department of State (DOS) has been afforded unfettered discretionary decision-making power over the issuance of visas, their decisions in most instances are unreviewable in a court of law, and DOS doesn’t have to give a reason for a denial to afford due process.

Furthermore, even if a visa is issued, that does not confer a noncitizen a Constitutional right to entry. Visas may be revoked at any time, which includes at the time of the application for admission in the discretion of the inspecting officer, and very little if any explanation for the revocation is required as the applicant maintains the burden of proof.

Moreover, at the time of the application for admission at the port-of-entry there is no right to counsel unless and until an immigrant is being charged with a violation of criminal law, and the inspecting officer in most instances is conferred the power to detain and deport you through a process called expedited removal, which is a summary decision by an immigration officer, not an immigration judge. That decision is also unreviewable in a court of law. Any immigrant whose inadmissibility is being questioned or who has become subject to an expedited removal order is detained. If the inspecting officers deem that the applicant for admission is inadmissible under other grounds contained in section 212(a) of the Act, they are required to take the immigrant into custody to institute deportation proceedings.

Once deportation proceedings are instituted, the Department may add whatever other charges they want, and are not limited by what was alleged in the charging document called a Notice to Appear (NTA). The NTA provides due process to a noncitizen by giving them notice of the charges against them, and the scheduling of the hearing is their opportunity to be heard to assert defenses to removal. Frequently, the charges lodged against an immigrant in the NTA are legally deficient, and must be corrected by government’s counsel in the context of the deportation proceeding. Meanwhile, the immigrant arriving at the border generally is detained, and when charged as an arriving alien, or deemed a threat to national security, no immigration judge has the power to set a bond so you may be stuck in deportation detention for the entirety of your immigration court case, which can take months, if not years.

As for being able to restrict access to the country, INA § 212(f) provides that the President may through proclamation suspend the entry of noncitizens whenever “entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.” The President may also impose restrictions on entry deemed appropriate. Since the Department doesn’t have to give the reasons for the basis for the denial of admission, it will be very difficult for any Court to assess if the denial of a visa, or refusal of admission is based on a Constitutionally impermissible basis.

Here’s the bottom line. President Trump has the legal, and Constitutional authority to instruct his officers to deny admission to any noncitizen (including Green Card holders) so long as the reason for so doing is related to a threat to national security, although the burden of proof shifts to the Department for Green Card holders, which is likely why the Trump administration clarified the executive orders as applied to lawful permanent residents.

And I’m not the only one who has come to this conclusion.

Nolan Rappaport, who previously served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years, and who wrote decisions for the Board of Immigration Appeals for 20 years shares my opinion that President Trump’s executive order does not exceed his statutory authority.

Immigration lawyer Scott Hicks also surmised that “Most of what the President is doing is in fact within his authority to execute the laws. This means that for real change to occur it must take place in Congress.” He further explained that “The President is essentially taking the most aggressive interpretations and approach to enforcing laws that are already in the books.” We are not alone in our thinking, although many like-minded immigration lawyers are staying silent to avoid the derision of the established partisan group think of the private immigration law bar.

That said, the American Civil Liberties Union (ACLU) disagrees, stating that Trump’s orders violate the establishment clause. I believe such argument is spurious at best as the three most populous Muslim countries in the world, Indonesia, home to 12.7% of the world’s Muslims, Pakistan (11.0%), and India (10.9%), are not banned from admission.

Protest at John F. Kennedy International Airport (JFK) against Donald Trump’s executive order (CREDIT: Rhododendrites)

Lawsuits have already been filed challenging the executive orders, and maybe I’m wrong, but something tells me that with the balance of the Supreme Court soon to be returned to the conservative wing, the likely result will be that Trump’s orders will be deemed Constitutional.

We shall have to wait and see.


Matthew Kolken is an immigration lawyer and the managing partner of Kolken & Kolken, located in Buffalo, New York. His legal opinions and analysis are regularly solicited by various news sources, including MSNBC, CNN, Fox News, The Washington Post, Forbes Magazine, and The Los Angeles Times, among others. You can follow him @mkolken.