Friday, February 10, 2017

A definition with a difference

I don't care to get political on my blog for the most part. I'm bending my usual course today for a very good legal reason, which I'll lay out below.

On January 27, President Trump signed an executive order temporarily staying entry under the Immigration and Nationality Act (INA) for aliens (i.e., non-citizens and non-nationals of the USA) from countries previously identified as being of higher risk due to harboring/sponsoring of terrorists. Here's the relevant paragraph:

    (c)  To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), 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 (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

The following day, a DHS spokesperson emailed a journalist that the order would bar green card holders (i.e., legal permanent residents or LPRs; the residency cards haven't been green for decades), which of course set off a panic with all the LPRs who rightfully thought they were done dealing with immigration roadblocks. So the following day, DHS said that it was in the national interest to use the flexibility of the order to not bar LPRs. What did DHS miss in all this? The definitions section of the INA specifically exempts LPRs from needing "admission" (which includes "entry" authorized by an immigration officer) under the immigration laws unless they've done something to lose their LPR status. Here's the relevant statute:

  INA Section 101(13)     (A) The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.          (C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-[and then there is a short list of things saying what an LPR can have done to lose LPR status, which is primarily commit a crime or overstay outside the USA].  

An LPR is considered already "admitted for permanent residence." They don't have to "enter" the USA under the umbrella of the immigration laws. Which makes sense because they already immigrated. Immigrate is a verb meaning to move to a place to settle down, and once you've done it, you don't have to do it again, so no more messing around with immigrant petitions, immigrant visas, or immigrant admission. LPRs are simply coming home when they return back to the USA after a short stay abroad. Hence the executive order doesn't do anything to bar LPRs because they require no "immigration benefits" to reenter the USA once inspection reveals that they are indeed LPRs who remain in status.

Why am I talking about all this now? Because no one, from DHS to the White House counsel to the DOJ to the Ninth Circuit Court of Apppeals seems to have caught this point of law. Yesterday's ruling from the Ninth Circuit openly and clearly makes this mistake, as seen on page 20 of its ruling:

In the district court, the States argued that the Executive Order violates the procedural due process rights of various aliens in at least three independent ways. First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. 

Do you see what the Ninth Circuit did there? They interpreted "immigrants" from the executive order to mean LPRs. This is a dumb mistake showing that of all the lawyers involved no one, even at the penultimately-supreme court level, has looked at INA Section 101 and realized that LPRs aren't treated by the law "as immigrants" when it comes to entering the USA. Any DHS agent working a port of entry knows that LPRs aren't the same thing as someone entering the USA with an immigrant visa in hand; the first category already did immigration paperwork in the past (huge hassle that it all was for them) at the border and/or in the USA, while the second is currently immigrating and has to be "processed" as an "immigrant" in "secondary." The executive order couldn't deny immigration benefits to LPRs entering the USA because they don't need immigration benefits to enter.

I know the INA is tricky, but this mistake should never happened. Every lawyer in the executive branch and courts who let this through should be embarrassed that they didn't check the INA definitions.

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