U.S. District Court finds the U.S. Department of State acted improperly in suspending visa issuance based on the Regional Ban Proclamations
On October 5, 2021, the U.S. District Court for the District of Columbia granted a group of non-citizens summary judgment in their suit against the U.S. Department of State (the “Department”), finding the Department acted improperly in suspending visa issuance pursuant to the Regional Ban Proclamations.
In response to the ongoing pandemic, both Former-President Trump and President Biden issued a series of COVID-19 Regional Proclamations that restrict entry into the U.S. for immigrants and nonimmigrants who have been in certain countries for a 14-day period preceding any attempt to enter. These proclamations were issued pursuant to 8 U.S.C. § 1182(f), which provides:
[w]henever 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 . . . 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 April 2021, the Department interpreted the Regional Ban Proclamations to place restrictions on visa issuance and entry into the U.S. for individuals physically present in the affected countries, including China, Iran, Brazil, UK, Ireland, South Africa, and the 26 countries in the Schengen area. As a result, visa applications for individuals from those countries have not been adjudicated, with limited exceptions.
That same month, Plaintiffs—which include over 180 noncitizens seeking immigrant or nonimmigrant visas, their U.S. citizen petitioners, as well as U.S. corporations and two U.S. associations—sued the Department and Secretary Antony Blinken, alleging the Department’s non-adjudication of visas for individuals from proclamation countries was unlawful because § 1182(f) only governs who is eligible to enter the country, and the issuance of visas is distinct from eligibility. Accordingly, Plaintiffs claimed that the Government’s “no-visa” policy for individuals from proclamation countries violated the Administrative Procedure Act and that the policy was otherwise ultra vires (i.e., beyond the Department’s legal authority).
On October 5, 2021, after dismissing most of the Plaintiffs’ claims as moot or for lack of standing, the District Court issued its decision based on eight remaining plaintiffs with live claims.
The U.S. District Court granted the relevant remaining Plaintiffs’ motion for summary judgment on October 5, 2021, after finding the Department’s interpretation of the Regional Ban Proclamations to prevent U.S. consulates and embassies in those countries from adjudicating visas was unlawful.
In defending its interpretation of the Regional Ban Proclamations, the Department emphasized, among other points, that the Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” The District Court ultimately rejected this rationale, distinguishing between visa issuance and entry into the U.S. The District Court relied on previous district court decisions finding against the Government regarding the suspension of visa adjudications and concluded that the Department cannot rely on the clear language of § 1182(f) to maintain a policy of not adjudicating nonimmigrant visas from proclamation countries.
In addition to asking the District Court to find the Department’s policy unlawful, Plaintiffs sought other relief, including “the immediate reissuance of visas” that have been issued but expired because of the Regional Ban Proclamations, the “immediate issuance of visas to plaintiffs who have been approved,” and the immediate rescheduling of interviews and extensions of other relevant deadlines so that Plaintiffs’ visas will not be delayed. The District Court found these requests too far reaching, stating the Court would not take a position on whether the Defendants must issue a visa to each Plaintiff. Instead, the Court simply held that the Department cannot rely on the Regional Ban Proclamations as a basis to cease visa adjudications for individuals from the proclamation countries.
Finally, the Court noted that the Biden Administration’s plan to ease pandemic-related travel restrictions on fully vaccinated travelers from proclamation countries beginning in “early November,” may ultimately render the Plaintiffs’ claims (and those who are similarly situated) as moot.
Although it appears that the Biden Administration is lifting the regional bans, this successful litigation is a bright light after months of back and forth and will hopefully put an end to the Department’s policy of suspending visa issuance based on a temporary ban on entry. Be sure to subscribe to our blog and follow our social media accounts for more important updates!