On June 12, 2017, three judges on the United States Court of Appeals for the Ninth Circuit ruled that President Donald Trump’s second executive order imposing a temporary ban on “entry” into the United States should be read as if it stated that the ban was on “the issuance of an immigrant visa.”  This made it possible for Judges Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, all appointed by President Bill Clinton, to hold that the temporary ban was subject to a statutory prohibition on discrimination because of a person’s nationality “in the issuance of an immigrant visa.”  There is no statutory prohibition on nationality-based discrimination in the president’s determination of whether a person can enter the United States.  In addition, these judges “interpreted” the law to mean something that the law does not state, so that even if the executive order were to be interpreted accurately, it would run afoul of the law.

As previously explained at AT, when ruling on President Trump’s first executive order regarding a temporary ban on “entry” into the United States, three other Ninth Circuit judges ruled against the first executive order without making any reference to Title 8 United States Code, section 1182(f), which states:

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.  

President Trump’s second executive order states in Section 2(c):

I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C.  1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States.  I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.

Suspension of “entry” also is discussed in sections 3(a)-(c) and 6(b) and (c) of the second executive order, without directing that issuance of visas be stopped. 

The second executive order also states at section 1(f):

Accordingly, while that assessment is ongoing, I am imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers, as described in section 3 of this order.

Therefore, the second executive order expressly states that it temporarily suspends and pauses “entry” into the United States.  It does not state that it stops issuance of visas.

In the newest Ninth Circuit opinion, the judges used the law that former Deputy Attorney General Sally Yates misquoted when testifying to the Senate Judiciary Subcommittee on Crime and Terrorism on May 8, 2017, Title 8 United States Code, section 1152(a)(1)(A).  This statute was enacted in 1965, and section 1182(f) was enacted in 1952.  Section 1152(a)(1)(A) states that subject to a few exceptions that are not relevant in these circumstances:

... no person shall receive any preference or priority or 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.

As explained by U.S. Customs and Border Protection:

An immigrant visa (IV) is issued to a person wishing to live permanently in the U.S.

A nonimmigrant visa (NIV) is issued to a person with permanent residence outside the United States, but wishes to be in the U.S. on a temporary basis for tourism, medical treatment, business, temporary work or study, as examples.

Section 1152(a)(1)(A) does not state that it prohibits nationality-based discrimination regarding entry into the United States.  It states that it prohibits nationality-based discrimination regarding “the issuance of an immigrant visa.”

Judges Hawkins, Gould, and Paez correctly ruled in footnote 19 of their opinion that “[w]hile a foreign national may properly obtain a visa, this does not guarantee entry into the United States because they may otherwise be inadmissible.”

They also correctly ruled that according to 8 U.S.C. section 1182(a), aliens deemed inadmissible under section 1182(f) “are ineligible to receive visas.”

However, at pages 48-56 of their opinion, Judges Hawkins, Gould, and Paez ruled that the second executive order’s suspension of entry “in substance operates as a ban on visa issuance,” and that to rule otherwise “would enable the President to restore discrimination on the basis of nationality that Congress sought to eliminate.”  At one point the judges refer to “the President’s asserted ability to deny immigrant visas on the basis of nationality.”  But the executive order never states that the president has this ability.  Any such ability is indirect because under the laws that Congress wrote, the president has the ability to deny “entry” under certain circumstance, and when entry has been denied, no immigrant visa should issue. 

The judges’ job was to take the executive order as it is, under the law as written, not as the executive order operates “in substance.”  If the law, as written by Congress, does not go as far as the judges would like it to go, it is improper for the judges to pretend that the law states what they think it should have stated.  President Trump cannot “restore discrimination on the basis of nationality that Congress sought to eliminate,” when Congress did not seek to eliminate nationality-based discrimination regarding “entry” into the United States.

The judges further stated: “Under the Government’s argument, the President could circumvent the limitations set by § 1152(a)(1)(A) by permitting the issuance of visas to nationals of the six designated countries, but then deny them entry.”  This only makes sense if it is assumed that the limitations “set by § 1152(a)(1)(A)” include a ban on nationality-based discrimination regarding “entry” into the United States.  The plain text of § 1152(a)(1)(A) contains no such ban.

The three judges then quoted approvingly from a “friend-of-the-court” brief and stated:

To avoid this result, and to give effect to § 1152(a)(1)(A), the section “is best read to prohibit discrimination throughout the visa process, which must include the decision whether to admit a visa holder upon presenting the visa.”  Brief of Former Immigration and Homeland Security Officials as Amici Curiae, Dkt. No. 176 at 9.  In prohibiting nationality-based discrimination in the issuance of immigrant visas, Congress also in effect prohibited nationality-based discrimination in the admission of aliens. 

These judges determined that although Congress did not include a ban on nationality-based discrimination regarding “entry” into the United States in section 1152(a)(1)(A), or in any other law, in order “to give effect to” this section, it “is best read” to include such a ban.  Therefore, the judges ruled that section 1152(a)(1)(A), “in effect” includes a ban on nationality-based discrimination regarding entry into the United States.  Under our Constitution, the statute is “best read” by reading it as written, not as one would like for it to have been written.

The judges stated: “It is our duty, if possible, to reconcile the President’s statutory authority under § 1182(f) with the non-discrimination mandate of § 1152(a)(1)(A).”  But on its face, the non-discrimination mandate of section 1152(a)(1)(A) only extends to issuance of immigrant visas.  The president’s statutory authority under section 1182(f) only extends to “entry” into the United States.  There is no conflict.  There is nothing to reconcile.

The judges stated that their decision is justified by the principle that “a later enacted, more specific statute generally governs over an earlier, more general one.”  They stated that section 1152(a)(1)(A) (ban on nationality-based discrimination in issuance of immigrant visas) was more specific than section 1182(f) (presidential authority to deny entry).  However, this principle is usually applied when there is a conflict in the statutes.  There is no conflict here.  Section 1182(f) is very specific about the president’s authority to deny “entry” under the stated circumstances.  Section 1152(a)(1)(A) does not state anything about “entry” and only addresses issuance of immigrant visas.

The judges stated: “Second, § 1152(a)(1)(A) specifically identifies exemptions from the non-discrimination mandate, implying that unmentioned sections are not exempted.”  However, any such exemptions are irrelevant given that section 1152(a)(1)(A), which only applies to issuance of immigrant visas, is inapplicable on its face to the executive order, which only involves “entry” into the United States.

As previously explained at AT:

When Congress enacted section 1152(a)(1)(A), it knew the difference between entry and visa issuance.  It also knew of the president's authority over entry based on section 1182(f).  If Congress wanted to affect that authority over entry, it could have done so by expressly addressing entry in section 1152(a)(1)(A).  It did not do so.  Congress did not interfere with the authority granted in section 1182(f), even knowing that the exercise of such authority could have the secondary effect of causing denial of a visa application.

When it enacted section 1152(a)(1)(A), Congress gave no indication that it wanted to interfere with the president’s authority under section 1182(f) to protect the nation, even if that authority was exercised in a manner that made distinctions based on nationality.  Yet, Judges Hawkins, Gould, and Paez obviously believe that Congress should have interfered with that authority.   Therefore, they have decided the case as if Congress had done so.

As a judge, if you want a particular outcome to a case, and your desired outcome is not possible with the applicable facts and law, and you are determined to achieve your desired outcome, you must either distort the law, or the facts, or both.  In this case, these judges distorted the facts by “interpreting” President Trump’s second executive order as if it stated something other than what it actually states.  At the same time, they distorted the law by “interpreting” it so that it applies to the executive order, even if the executive order would have been interpreted accurately.

Allan J. Favish is an attorney in Los Angeles.  His website is allanfavish.com.  James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled "Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).