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Most media coverage of the legality of the Trump travel bans has centered on whether they violate the constitutional separation of church and state.

However, David Bier of the Cato Institute has argued the relevance of the following USC clause (originating with the 1965 immigration law):

...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.

This clause seems to state that a blanket immigrant/refugee ban on any country would be illegal.

Has this argument been employed in any of the travel ban-related legal proceedings so far? If not, why not?

Edit (June 2018): How does the recent supreme court ruling deal with this issue?

  • That law certainly has come up in filings and opinions related to the travel ban, but it does not apply to refugees because they do not enter the US with immigrant visas. – phoog Sep 25 '17 at 5:35
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    @phoog I believe refugee visas are immigrant visas. – Colin Sep 25 '17 at 13:46
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    They are not. An immigrant arriving with an immigrant visa becomes a "lawful permanent resident" immediately upon entry into the US, while a refugee is admitted in refugee status and must apply to adjust status to that of a lawful permanent resident after a year. Lists of immigrant visa classes also conspicuously omit "refugee." Refugees are distinct fromimmigrants under the INA. – phoog Sep 25 '17 at 16:59
  • @phoog It isn't clear to me that the September 2017 decree is limited to refugees. – ohwilleke Sep 27 '17 at 11:35
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    @ohwilleke it's certainly not limited to refugees, but the question mentions refugees, so I wanted to point out that the law in question does not apply to refugees. The proclamation does apply to immigrants, and the question is certainlyrelevant in such cases. – phoog Sep 27 '17 at 15:34
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In Trump v. Hawaii, the Supreme Court majority concluded that 8 USC §1152(a)(1)(A), which you quoted, does not apply here, because the ban is on admission, not visa issuance. From page 22 of the decision:

The distinction between admissibility—to which §1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry. Had Congress instead intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end.

So the government may not discriminate when issuing immigrant visas. However, a visa does not guarantee entry to the US, and according to the majority, the government may discriminate in determining who actually gets to enter.

Moreover, much of the forbidden travel would have taken place on non-immigrant visas in any case (e.g. business, tourism, students, temporary work visas including H-1B), and the Court argued that this clause applies only to immigrant visas. You can see a list of immigrant and non-immigrant visa types here. Page 21 of the decision:

As an initial matter, this argument challenges only the validity of the entry restrictions on immigrant travel. Section 1152(a)(1)(A) is expressly limited to the issuance of “immigrant visa[s]” while §1182(f ) allows the President to suspend entry of “immigrants or nonimmigrants.” At a minimum, then, plaintiffs’ reading would not affect any of the limitations on nonimmigrant travel in the Proclamation.

The dissents don't mention this statute. However, they do seem to take the view that discrimination in admission simply violates the First Amendment.

  • so the government must continue to issue immigrant visas normally? (but these visas can't be used until the ban ends) – Colin Jun 27 '18 at 6:18
  • @Colin: Yes, I think that's their reading. – Nate Eldredge Jun 27 '18 at 6:18

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