Two New Pieces From N. Rappaport: Perhaps “Lost In The Shuffle” — Trump’s Plans For An Expanded Travel Ban & “Super Expedited” Removals!

Nolan is one of the “hardest working op-ed writers”in the field! Here’s the intro to what he had to say in HuffPost about an expanded “travel ban.”

“Too much attention is being paid to a 90-day travel ban in President Donald Trump’s Executive Order Protecting the Nation From Foreign Terrorist Entry into the United States (Order). While it is a serious matter, the temporary suspension of admitting aliens from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen into the United States is just the tip of the iceberg. Other provisions in the Order may cause much more serious consequences.

Section 3(a) of the Order directs the Secretary of the Department of Homeland Security (DHS), in consultation with the Secretary of the Department of State (DOS) and the Director of National Intelligence, to determine what information is needed “from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” This applies to all countries, not just the seven that are subject to the 90-day suspension.

Those officials have 30 days from the date of the Order to report their “determination of the information needed for adjudications and a list of countries that do not provide adequate information (emphasis supplied).”

Section 3(d) directs the Secretary of State to “request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.” Section 3(e) explains the consequences of failing to comply with this request. Note that this also applies to all countries, not just the seven that are subject to the 90-day delay.

(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, …) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs (emphasis supplied).

This is far more serious than the 90-day ban on immigration from the seven designated countries. With some exceptions, President Trump is going to stop immigration from every country in the world that refuses to provide the requested information. And this ban will continue until compliance occurs.

Does the President have the authority to do this? Yes, he does. The main source of the president’s authority to declare such suspensions can been found in section 212(f) of the Immigration and Nationality Act, 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.

The Order permits the Secretaries of DOS and DHS to waive the restrictions on a case-by-case basis when it is in the national interest.

DHS Secretary John Kelly has applied this waiver to the entry of lawful permanent residents. In a statement released on January 29, 2017, he says, “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

The ACLU Executive Director, Anthony D. Romero, claims that the Order is “a Muslim ban wrapped in a paper-thin national security rationale.”


I understand Nolan’s point that President Trump could be within his rights to invoke the travel ban.  Nevertheless, in a recent blog on this site, former State Department visa officer Jeff Gorsky pointed out that historically the section 212(f) sanction of suspension of visa issuance has been used in a very narrow and focused manner.

The prospect of large-scale visa suspensions in the current context also seems like unusual policy to me. Let’s take the most obvious example: Iran, a country with which we have famously strained relations.

Why would Iran want to provide us with any useful information about its nationals? And, if they did, why would we trust it?

For example, if there is a real “Iranian spy” out there I’m sure the Iranian Government will give him or her a “clean bill of health.” On the flip side, if there are some Iranian democracy advocates who are annoying to the Iranian Government but want to travel to the U.S., Iran would likely plant false information to make us believe they were “terrorists.

Hopefully, in Iranian visa cases we are getting our “vetting” information largely from sources other than the Iranian Government. Consequently, like so many of the Trump Administration’s actions, it is hard to take a threat to ban visa issuance as a serious effort to protect national security. It’s likely that national security is just a “smokescreen” for other possible motives. Who knows?

I’m incurred to think that if Trump decides to “go big” with 212(f) visa suspensions, at least some lower Federal Courts are likely to adopt the “Gorsky view” that “he can’t do that.”

You should read Nolan’s complete article in HuffPost at the above link!


Next, Nolan writes about the Administration’s “expedited removal campaign” in The Hill:

As of the end of January 2017, the immigrant court’s backlog was 542,411 cases.  Even if no additional cases are filed, it would take the court two-and-a-half years to catch up with its backlog.

President Trump finessed his way around this problem by expanding the use of expedited removal proceedings with his Executive Order, Border Security and Immigration Enforcement Improvements.

In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, will be deported without a hearing before an immigration judge, unless he requests an asylum hearing.


Asylum hearings, which are conducted by immigration judges, are available to aliens who establish a credible fear of persecution.  An asylum officer determines whether the alien has a credible fear of persecution.

The alien cannot have assistance from an attorney in these proceedings, and, because detention is mandatory, his ability to gather evidence in support of his case is severely restricted.

Moreover, Section 208(a)(2)(B) of the Immigration and Nationality Act (INA) limits asylum to aliens who have been in the United States for less than a year (with some exceptions).

If the asylum officer rejects the credible fear claim, the alien can request an expedited review of his credible fear case by an immigration judge, which usually is held within 24 hours but in no case later than seven days after the adverse credible fear determination.

Federal court review is available, but it is restricted to cases in which the alien makes a sufficient claim to being a United States citizen, to having lawful permanent resident status, or to having been admitted previously as a refugee or an asylee.

A federal judge recently held that asylum denials in expedited removal proceedings are not reviewable in federal court and the Supreme Court let the decision stand.

Previous administrations limited expedited removal proceedings to aliens at the border and aliens who had entered without inspection but were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

The Executive Order expands expedited removal proceedings to the full extent of the law. Section 235(b)(1)(A)(iii)(ll) of the INA authorizes expedited removal proceedings for aliens who have been physically present in the United States for up to two years.

It is likely to be very difficult for aliens to establish physical presence of more than two years, and if they do, they will be faced with the one year deadline for asylum applications, which in many cases is the only form of relief available to an undocumented alien.

President Trump will be able to use expedited removal proceedings to deport millions of undocumented aliens without hearings before an immigration judge.

The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that meets the political needs of both parties, and time is running out.”


I’m all for comprehensive immigration reform. But, if it doesn’t happen, I’m not so sure that Trump, Sessions & Co. won’t “push the envelope” on expedited removal to the point where  the Supremes “just say no.” After all, even noted conservative chief Justice John Roberts seemed unenthusiastic about giving the DHS total prosecutorial discretion in a recent citizenship case. See this earlier blog:



Former State Department Visa Guru Jeff Gorsky Says Travel Ban Exceeds President’s Statutory Authority — “No Precedent” For This Type Of Overly Inclusive Use!

From Lexis NexIs:

There is, however, another legal argument against the travel ban that does not require looking at evidence outside of the judicial record: The scope of the ban on its face is overly broad and exceeds the president’s legal authority under the Immigration and Nationality Act. Although the plaintiffs in the Hawaii case posed this argument, at this point none of the courts that have ruled on the legality of the executive order have analyzed this issue. The statutory authority for the travel ban derives from INA Section 212(f), 8 USC 1182(f), which authorizes the president by proclamation to suspend the entry or impose restrictions on the entry of any aliens or class of aliens to the United States. This is not a plenary grant of authority, but requires a finding that the entry of such aliens is “detrimental to the interests of the United States.” A ban that covers an entire nationality based on a concern that a few of those nationals pose a security or criminal threat to U.S. interest exceeds the statutory authority because there is no evidence or reasonable basis to believe that the entry of some or most of the nationals in the ban would be detrimental to U.S. interests.

During my 30-year career at the U.S. Department of State, I was involved in numerous 212(f) determinations. All were supported by carefully drafted memos and cited specific evidence of detriment to U.S. interests. The Trump travel bans do not. There is no dispute that the president has longstanding authority to deny or restrict the admission of certain aliens by proclamation; it is one of the oldest immigration provisions in U.S. law. The first law to authorize the president to limit immigration based on proclamation was the Alien Enemies Acts of 1798, one of the Alien and Sedition Acts enacted in the John Adams administration. That act empowered the president by public proclamation during a state of war to exclude enemy aliens as “necessary for public safety”.

This authority was not invoked until the 20th century, with the advent of World War I. An act of May 22, 1918, provided for the president to establish by proclamation immigration restrictions during a time of war for the purpose of public safety. Based on the Alien Enemies Act and the 1918 act, President Woodrow Wilson made a number of proclamations involving enemy aliens. While not a total ban on admission of aliens with Austrian-Hungarian nationality, these proclamations significantly restricted the admission of these enemy aliens.

This authority was revived during World War II, following the declaration of a national emergency on May 27, 1941. An amendment to the act provided that the president might, upon finding that the interests of the United States required it, impose additional restrictions and prohibitions on the entry into and departure of persons from the United States during the national emergency. This provision was upheld by the Supreme Court in the case United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537.

The 1950 “Report of the Senate Judiciary Committee,” the primary background document on the McCarran-Walter Act of 1952, discussed the history of the enemy aliens provisions at length, and concluded that this was a necessary authority. This authority was carried over into Section 212(e) (now f) and Section 215 of the INA.

In the past 35 years, this authority has been used 43 times but never as broad as with Trump’s executive orders. Most actions were limited to officials of foreign governments who engaged in specified policies considered detrimental to U.S. foreign policy or other U.S. interests — not blanket bans based solely on nationality.

The current travel ban, therefore, is unprecedented in its scope. Even if it is accepted that the specified countries pose a threat to the United States, the inclusion in the ban of all nationals from those countries is not reasonable, since there is no evidence that the admission of many or most such aliens would be detrimental to U.S. interests. For example, the ban includes babies and minor children, although they have neither the physical or legal capacity to commit acts of terrorism or criminality that would be detrimental to U.S. interests. While the executive order allows for a case-by-case discretionary waiver for minors, the availability of a discretionary waiver requiring a finding that the admission of such alien “would be in the national interest” does not cure the underlying lack of legal authority under 212(f) to bar persons such as young children who do not pose a credible threat to U.S. interests.

If the president can bar all nationals of a country based on speculative and vague concerns, absent any evidence relating to the specific individual who is barred admission, the president would have virtually absolute authority to bar all aliens from admission to the U.S. Every country in the world, including countries that would not normally be considered to pose a security threat to the U.S., like Japan and the United Kingdom, have some nationals who could theoretically pose a terrorist or criminal threat that could be used as a pretext to ban all nationals from that country. Such sweeping plenary authority does not exist in any other portion of the INA. In the over 200 years in which the president has had authority to limit the admission of aliens by proclamation, no president has ever before claimed this broad an authority.”


In prior lives, I had the pleasure of working with Jeff on a number of issues. Smart guy, nice guy, always very helpful. Doesn’t mean he’s right or wrong on this, but his point makes sense to me.