Sally Yates misquoted the law to Ted Cruz
In testimony on May 8, 2017 before the Senate Judiciary Subcommittee on Crime and Terrorism, former deputy attorney general Sally Yates briefly discussed an issue that is part of the ongoing litigation over President Donald Trump's Executive Order No. 13769 of January 27, 2017 and Executive Order 13780 of March 6, 2017 limiting entry of refugees from some of the countries that are openly hostile to the United States and/or are incapable of helping us adequately vet the refugees. (Section 1[i] of the latter executive order revoked the earlier executive order.) In her discussion about the issue with Senator Ted Cruz (R-Texas), which begins at 1:33:50 here, she misquotes a United States Code section.
One of the issues in the lawsuits against the executive orders is the effect of 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.
In its decision against the Jan. 27, 2017 executive order, a three-judge panel of the United States Court of Appeals for the Ninth Circuit did not cite, discuss, or quote from section 1182(f). A vote to have the matter reheard by the full Ninth Circuit was unsuccessful, but on March 15, 2017, five judges of the Ninth Circuit who dissented from the denial of the rehearing found that the executive order was authorized by section 1182(f). Their dissent is at page 4 here.
When asked by Sen. Ted Cruz whether she was familiar with section 1182(f), Yates said: "Not off the top of my head, no." After Sen. Cruz quoted the section to her, she said she was familiar with the section and added:
I'm also familiar with an additional provision of the INA [Immigration and Nationality Act] that says "no person shall receive preference or be discriminated against in issuance of a visa because of race, nationality, or place of birth," that I believe was promulgated after the statute that you just quoted, and that's been part of the discussion with the courts with respect to the INA, is whether this more specific statute trumps the first one that you just described.
Although she did not give the citation for the section she was quoting, she must have been quoting from Title 8 United States Code, section 1152(a)(1)(A). Section 1152(a)(1)(A) 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.
Ms. Yates did not accurately quote section 1152(a)(1)(A). She omitted the phrase "or priority" from her quotation, but that is not important here. Most significantly, the section involves the "issuance of an immigrant visa[.]" Ms. Yates changed that phrase to "issuance of a visa[.]" Thus, Ms. Yates gave the false impression that section 1152(a)(1)(A) has wider application than it does. This is because there are immigrant visas and nonimmigrant visas. U.S. Customs and Border Protection explains the difference:
What is the difference between an Immigrant Visa vs. Nonimmigrant Visa?
The type of visa is determined by the purpose of your travel to the United States.
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.
Contrary to Ms. Yates's erroneous quotation, section 1152(a)(1)(A) applies only to "immigrant" visas. Therefore, even if section 1152(a)(1)(A) makes section 1182(f) inapplicable to the executive orders, it does so only as to immigrant visas. This means that section 1152(a)(1)(A) cannot have any effect on the authorization in section 1182(f) for the executive orders as applied to nonimmigrant visas. Ms. Yates's misquotation implied that section 1152(a)(1)(A) "trumps" section 1182(f) as regard to all visas, when that is not the case.
More importantly, section 1152(a)(1)(A) does not reduce section 1182(f)'s power as a source of authority for the executive orders whether the visas are immigrant or nonimmigrant. This is because the executive orders do not state that they are stopping the issuance of visas. The January 27, 2017 executive order states in section 3(c): "I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order." Section 5, subsections (c) and (d) of the executive order also suspends entry.
The March 6, 2017 executive order does not state that it is stopping the issuance of visas. It 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.
Section 2(c) of the March 6, 2017 executive order states:
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 March 6, 2017 executive order without directing that issuance of visas be stopped. Therefore, the executive orders expressly state that they pause or suspend entry into the United States. They do not state that they stop issuance of visas.
The law misquoted by Ms. Yates, section 1152(a)(1)(A), states that "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa[.]" It does not prohibit discrimination regarding entry into the United States. This is consistent with the nature of a visa. Obtaining a visa and obtaining permission to enter the United States are two different things. According to the Office of Visa Services, in the Consular Affairs Bureau, United States Department of State, here, and in its glossary under the definitions for Admission and Visa, a visa allows a foreign citizen to travel to the United States and request permission to enter. Issuance of a visa does not guarantee entry to the United States. A Customs and Border Protection inspector at a U.S. port of entry determines whether the visa holder may enter the U.S.
The argument that section 1152(a)(1)(A) reduces the president's authority granted in section 1182(f) ignores key rules of statutory interpretation that were stated by the Ninth Circuit in the 1995 case entitled In re Transcon Lines, 58 F.3d 1432, 1440 (9th Cir. 1995):
[W]e are mindful of the fact that we must, whenever possible, attempt to reconcile potential conflicts in statutory provisions. We have repeated time and time again that "Congress must be presumed to have known of its former legislation ... and to have passed ... new laws in view of the provisions of the legislation already enacted."
When these rules are applied to sections 1152(a)(1)(A) and 1182(f), the result is that section 1152(a)(1)(A) is consistent with section 1182(f) because section 1152(a)(1)(A) controls only the issuance of visas and does not interfere with the president's authority over entry into the United States.
It has been argued that by preventing entry, the president can prevent issuance of an immigrant visa. This is true. The U.S. Citizenship and Immigration Services states:
All persons applying for an immigrant visa or adjustment of status must prove to the satisfaction of immigration or consular officials that they are admissible (eligible for admission) to the United States.
Therefore, one effect of the suspension of entry in the executive orders is to make it impossible for the affected prospective visa applicant to prove that he is admissible to the United States. Absent such proof, any visa application should be denied.
However, this does not alter the analysis. 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.
Additionally, this entire analysis does not address the issue of whether the president's authority over entry as expressed in section 1182(f) is based in the Constitution and would exist in the absence of section 1182(f) and thereby be immune from impingement by section 1152(a)(1)(A) should it be deemed to conflict with section 1182(f).
It is unclear whether Ms. Yates intended for her misquotation of section 1152(a)(1)(A) to give a veneer of respectability to the argument that the section restricts the authority over entry given the president by section 1182(f). In any case, the argument deserves to be rejected by the courts.
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).