Exactly how much immigration authority does Trump have? Well…

President Donald Trump’s immigration executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” imposes a 90-day suspension on admitting aliens from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen into the United States.  

These countries were taken from a list compiled for section 217(a)(12) of the Immigration and Nationality Act (INA), which excludes aliens who have been present in a specified country from participating in the Visa Waiver Program.

{mosads}The order also requires the creation of a list of countries that refuse to provide information needed to determine that an individual seeking to enter the United States “is who the individual claims to be and is not a security or public-safety threat.”

The countries on this list will be considered “for inclusion on a presidential proclamation that would prohibit the entry of foreign nationals … from countries that do not provide the” requested information “until compliance occurs.”

President Trump bases these actions on his authority under the provisions of section 212(f) of the INA, the pertinent part of which reads as follows:

“(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.”

But according to a January 23, 2017, report from the Congressional Research Service (CRS), “Neither the text of Section 212(f) nor the case law to date suggests any firm legal limits upon the president’s exercise of his authority to exclude aliens under this provision.”

“Trump’s immigration ban Executive Order is clumsy, but perfectly legal” https://t.co/vYSmiwZoXA pic.twitter.com/pGXq9lJL0h

— The Hill (@thehill) January 30, 2017

The only constraint in the language of the provision is that the president must have found that the entry of any alien or class of aliens would be “detrimental to the interests of the United States.”

Section 212(f) does not state:

1. What the president should consider in determining whether the entry of the aliens in question is “detrimental” to U.S. interests;
2. When or how proclamations should be issued;
3. What the president should consider in determining whether particular restrictions are “appropriate;” or
4. Impose any restrictions on how long they should last.

But in no case to date has a president excluded aliens based on their religion.  An argument could be made that this would be unconstitutional.

While it is true that the seven countries subject to the 90-day suspension have large Muslim populations, that is not why they were chosen.  The pertinent part of Trump’s order reads as follows:

“I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a) (12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order….”

Congress put Iraq and Syria on this list, and the Obama administration added Iran, Sudan, Libya, Somalia, and Yemen as “countries of concern.”

The criterion in section 217(a) (12) for designating a “country or area of concern” is a determination that:

1. The “presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;”
2. “A foreign terrorist organization has a significant presence in the country or area;” and
3. “The country or area is a safe haven for terrorists.”

I experienced the power of section 212(f) when I was an immigration counsel on the House Judiciary Committee.  

One of the constituent cases I worked on involved a man who had had his visa revoked pursuant to President Bill Clinton’s Proclamation No. 7062 as a member of the military junta in Sierra Leone.  He was placed in exclusion proceedings and detained when he returned from a trip abroad.  I worked with Ladan Mirbagheri Smith, an immigration lawyer in private practice, to keep him in the United States but no one but President Clinton had the power to help him.

He established a well-founded fear of persecution in Sierra Leone, but his asylum application was denied because the proclamation prevented him from being allowed to remain in the United States.  

He was a man without a country.  He could not stay in the United States and he was afraid that he would be killed if he returned to Sierra Leone.

He was deported to a country near Sierra Leone.  No one ever heard from him again.     

Section 212(f) is not the only provision in the INA that authorizes the president to restrict alien admission into the country.  

Section 215(a)(1) provides that “it shall be unlawful for any alien” to enter or depart the United States “except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the president may prescribe.”  President Carter cited this provision in Executive Order 12172 when he revoked visas issued to Iranians during the Iran Hostage Crisis.

So while his critics push back against Trump’s executive order, the president remains on firm, if controversial, legal grounds.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

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