Law & Public Policy Blog

Immigrant and Nonimmigrant Rights in Light of a Presidential Proclamation to Suspend Immigration

Ashley Rotchford ’18, Law & Public Policy Scholar

As nonimmigrants and immigrants alike fear for their status, employment, and ability to qualify for any type of federal or state benefit during this pandemic, the Administration decided to add to these well-founded fears by proffering the following from President Trump’s personal Twitter account a little after 10:00 PM on April 20, 2020: “In light of the attach from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!” No additional information or plans have been released by the Administration or the Department of Justice at this time. This short and vague announcement has understandably caused widespread panic throughout the immigration community. It has also raised concerns about the President’s executive authority when it comes to immigration.

Section 212(f) of the Immigration and Nationality Act (“INA”) confers near-plenary power upon the President to restrict the entry of noncitizens via Presidential Proclamation when he or she finds that such entry would be “detrimental to the interests of the United States” for as long a period as he or she deems necessary. It has been used by many past Presidents, but it gained notoriety under the Trump Administration because of the so-called Muslim Ban, which was originally signed on March 6, 2017 but then expanded by the President’s Proclamation on January 31, 2020.

While the President failed to expound upon the groups of persons that may be impacted by his proffered position, it is helpful to detail some of the possibly affected noncitizen groups, as well as the protections—if any—to which these groups are entitled. These groups are as follows: (1) Legal Permanent Residents (also referred to as Green Card Holders and LPRs), (2) nonimmigrants, (3) undocumented immigrants, and (4) prospective immigrants or nonimmigrants.

It should first be noted that admission into the United States is a privilege for nonimmigrants and immigrants alike, and exclusion is considered a fundamental act of sovereignty. Accordingly, a foreign national has no constitutional or other right to enter the United States. That being said, case law limits the application of this policy to a foreign national’s initial admission. Once a foreign national gains admission to the United States, he or she gains certain constitutional rights as a “resident” of the United States. These rights include protections under the First, Fifth, and Fourteen Amendments to the United States Constitution. Importantly, these constitutional protections extend to undocumented immigrants.

The New York Times has interpreted the tweet to potentially include a bar to the issuance of new green cards and work visas. As noted above, a person outside the United States who has never sought entry before has no right to be admitted. Moreover, nonimmigrants are not entitled by law to adjust their status to that of an LPR—such an adjustment is within the discretion of the federal government. However, it is important to note that nonimmigrants—specifically those present in the United States pursuant to valid nonimmigrant worker visas—and LPRs are entitled to the protections. Furthermore, the issuance of nonimmigrant visa extensions is codified in federal law, which may accordingly prevent a sweeping proclamation suspending or preventing the issuance of extensions to status.

Due to the vague and uninformative nature of the President’s tweet, everything at this point is just mere speculation. It is unclear how broad or widespread his immigration suspension may be and which foreign nationals it will impact. What is clear and unambiguous is that noncitizen residents have certain constitutional rights and are entitled to certain constitutional protections, and any Presidential Proclamation broadly suspending immigration will be swiftly met with litigation by any number of advocacy organizations.