Executive Authority to Exclude Aliens: In Brief
Released: 2017-01-23T00:00:00

T he Immigration and Nationality Act (INA) provides that individual aliens outside the United States are "inadmissible"—or generally barred from admission to the country —on health, criminal, security, and other grounds set forth in the INA. However, the INA also grants the Executive several broad authorities that could be used to exclude certain individual aliens or classes of aliens for reasons that are not specifically set forth in the INA. Section 212(f) of the INA is arguably the broadest and best known of these provisions, but Sections 214(a)(1) and 215(a)(1) can also be seen to authorize the Executive to restrict aliens' entry or admission to the United States.

This report provides a brief overview of the Executive's authority under these provisions of the INA. It begins with and focuses primarily on Section 212(f). It also briefly notes other provisions.

Section 212(f) of the INA

The provisions currently in Section 212(f)—which have been part of the INA since its enactment in 1952 —state, in relevant part, that

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.

Legislative history materials from the time of the INA's enactment suggest that these provisions were seen to grant the President broad authority to bar or impose conditions upon the entry of aliens, and Presidents over the years have relied upon Section 212(f) to suspend or restrict the entry of various groups of aliens, often (although not always) in conjunction with the imposition of financial sanctions upon them. Among those so excluded have been aliens whose actions "threaten the peace, security, or stability of Libya"; officials of the North Korean government or the Workers' Party of North Korea; aliens who have participated in "serious human rights violations"; and others noted in Table 1 below.

Neither the text of Section 212(f) nor the case law to date suggests any firm legal constraints upon the President's exercise of his authority under Section 212(f), as is explained below. However, future executive actions under INA § 212(f) could potentially be seen to raise legal issues that have not been prompted by the Executive's prior exercise of this authority.

Statutory Language and Executive Branch Interpretations

On its face, Section 212(f) would appear to give the President broad authority to preclude or otherwise restrict the entry into the United States of individual aliens or classes of aliens who are outside the United States and lack recognized ties to the country. The central statutory constraint imposed on Section 212(f)'s exclusionary power is that the President must have found that the entry of any aliens or class of aliens would be "detrimental to the interests of the United States" in order to exclude the alien or class of aliens. The statute does not address (1) what factors should be considered in determining whether aliens' entry is "detrimental" to U.S. interests; (2) when and how proclamations suspending or restricting entry should be issued; (3) what factors are to be considered in determining whether particular restrictions are "appropriate"; or (4) how long any restrictions should last. There also do not appear to be any regulations addressing the exercise of presidential authority under Section 212(f).

The Department of State's Foreign Affairs Manual (FAM) seemingly provides the only publicly available executive branch guidance on the President's Section 212(f) authority. In relevant part, the FAM notes that Section 212(f) proclamations "typically" grant the Secretary of State authority to identify individuals covered by the proclamation and to waive its application for foreign policy or other national interests. The FAM also notes that such proclamations may bar entry based on either affiliation or "objectionable" conduct. In addition, it provides that Section 212(f) may reach persons who are inadmissible under other provisions of law, in which case, the "statutory inadmissibilities are to be considered prior to determining whether a Presidential Proclamation applies." However, the FAM is generally not seen as having the force of law to bind the executive branch. Thus, the Executive would not need to engage in notice-and-comment rulemaking in order to alter particular practices contained in the FAM that have historically been associated with exercises of Section 212(f) authority (e.g., not relying on a 212(f) proclamation to bar the admission of aliens who are inadmissible on other grounds).

Judicial Constructions of Section 212(f)

The limited case law addressing exercises of presidential authority under Section 212(f) also supports the view that this provision of the INA confers broad authority to suspend or restrict the entry of aliens. Key among these cases is the Supreme Court's 1993 decision in Sale v. Haitian Centers Council, Inc. , which held that the U.S. practice of interdicting persons fleeing Haiti outside U.S. territorial waters and returning them to their home country without allowing them to raise claims for asylum and withholding of removal did not violate either the INA or the United Nations Convention Relating to the Status of Refugees. The U.S. practice had been established by Executive Order 12807, which was issued, in part, under the authority of Section 212(f) of the INA and "suspend[ed] the entry of aliens coming by sea to the United States without necessary documentation." Although the Sale Court was primarily concerned with whether the INA and UN Convention provisions regarding withholding of removal applied extraterritorially, it is arguably important for understanding the scope of the President's Section 212(f) authority. In particular, the Sale decision arguably helped clarify the relationship between exercises of the authority granted by Section 212(f) and those granted by other provisions of the INA, as well as the meaning of entry for purposes of Section 212(f).

In particular, the Court rejected the view of the U.S. Court of Appeals for the Second Circuit ("Second Circuit") that interdiction was prohibited because of the INA's prohibition upon the then-Attorney General returning an alien to a country where he or she would be persecuted. The Second Circuit had reached this conclusion by noting that the Attorney General was the President's "agent" in matters of immigration. Therefore, it found that INA's prohibition on the Attorney General returning aliens to countries where the alien's life or freedom would be threatened because of the alien's race, religion, nationality, political opinion, or membership in a particular social group should be imputed to the rest of the executive branch. The Supreme Court disagreed, however, holding that the interdiction program created by the President did not "usurp[] authority that Congress has delegated to, or implicate[] responsibilities that it has imposed on, the Attorney General alone." The Court reached this conclusion, in part, because it viewed the INA as restricting only the then-Attorney General's immigration-related responsibilities under the act. It did not view the INA as restricting the President's actions in geographic areas outside of where Congress had authorized the Attorney General to act in the immigration context (i.e., outside the United States). The upshot of this reasoning was that the Court declined to find that the interdiction program implemented under the authority of Section 212(f) ran afoul of statutory or treaty-based restrictions.

The Sale decision also helped define what is meant by the term entry as that term is used in Section 212(f). At the time when Sale was decided, the INA explicitly defined entry to encompass "any coming of an alien into the United States, from any foreign port or place or from an outlying possession, whether voluntarily or otherwise ." Therefore, consistent with this definition, the Court distinguished between (1) aliens who are "on our shores seeking admission" or "on the threshold of initial entry," and (2) aliens who are within the United States after entry, regardless of the legality of that entry. While the statutory definition of entry that the Court relied upon was deleted from the INA as part of the amendments made by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 ( P.L. 104-208 ), the Sale Court's construction of entry has persisted in discussions of Section 212(f) and in other contexts.

Lower court decisions provide some further discussion of exercises of 212(f) authority that would seem to be consistent with Sale . The most recent of these, an unpublished 2003 decision by the Second Circuit in Sesay v. Immigration and Naturalization Service [INS] , granted deference to the Board of Immigration Appeals' (BIA's) determination that the alien petitioner was ineligible for asylum because a grant of asylum necessarily requires entry, and the petitioner's entry was barred by Presidential Proclamation 7062. Previously, in its 1992 decision in Haitian Refugee Center, Inc. v. Baker , the U.S. Court of Appeals for the Eleventh Circuit had noted various precedents characterizing the power to exclude aliens from the country as an "inherent executive power" when opining that Section 212(f) "clearly grants the President broad discretionary authority to control the entry of aliens into the United States." A lower court, the U.S. District Court for the Northern District of California, similarly emphasized the breadth of the executive's power over entry in conjunction with its discussion of Section 212(f) in its 1996 decision in Encuentro del Canto Popular v. Christopher , stating,

The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.

Collectively, Sale and these other decisions suggest that Section 212(f) gives the Executive significant power to bar or impose conditions upon the entry of aliens "on our shores seeking admission" or "on the threshold of initial entry." None of these decisions note any limitations upon the President's power under Section 212(f). This silence could, however, be seen, in part, to reflect the arguably limited nature of the Executive's use of its Section 212(f) authority to date. As Table 1 below illustrates, prior exercises of presidential authority under Section 212(f) have differed in terms of which and how many aliens are subject to exclusion. In no case to date, though, has the Executive purported to take certain types of action, such as barring all aliens from entering the United States for an extended period of time or explicitly distinguishing between categories of aliens based on their religion. Any such restrictions could potentially be seen to raise legal issues that were not raised by prior exclusions. For example, if the Executive were to seek to bar the entry of all aliens, as immigrants or nonimmigrants, for an extended time, questions could be raised about whether the President's action was consistent with Congress's intent in enacting statutes which prescribe criteria for the issuance of family- and employment-based immigrant and nonimmigrant visas and authorize the issuance of certain numbers of such visas each year. Similarly, if the President were to purport to exclude aliens based on their religion, an argument could potentially be made that this action is in tension with U.S. treaty obligations or the First Amendment. (Distinctions between aliens based on nationality, in contrast, have historically been viewed as a routine feature of immigration legislation and subjected to deferential "rational basis" review by the courts when challenged on constitutional grounds. )

Other Provisions of the INA

Beyond Section 212(f), other provisions of the INA can also be seen to authorize the Executive to restrict aliens' entry to the United States. Most notably, Section 214(a)(1) prescribes that the "admission of any alien to the United States as a nonimmigrant shall be for such time and under such conditions as [the Executive] may by regulations prescribe." (Nonimmigrants are aliens admitted to the United States for a specific period of time and purpose pursuant to one of the "lettered" visas set forth in Section 101(a)(15) of the INA. ) Section 215(a)(1) similarly provides that "it shall be unlawful for any alien" to enter or depart the United States "except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe." In the past, the Executive has relied upon Section 215(a)(1), in particular, to exclude certain aliens. For example, President Carter cited to Section 215(a) when authorizing the revocation of immigrant and nonimmigrant visas issued to Iranians during the Iran Hostage Crisis.

The current Section 215(a) was enacted as part of the INA in 1952. However, similar language appeared in earlier immigration-related statutes. Both the earlier language and the initial version of Section 215(a) granted the President the power to impose additional restrictions upon aliens' entry into and departure from the United States during times of war and, in some cases, "national emergency." The President's exclusion of certain aliens under this authority was upheld in several court cases, the most notable of which was arguably the Supreme Court's 1950 decision in United States ex rel. Knauff v. Shaughnessy . There, the Court rejected a challenge to the exclusion of a German "war bride" under regulations promulgated pursuant to Presidential Proclamation 2523, which was itself issued under the authority of a predecessor of Section 215(a). In so doing, the Court rejected the excluded bride's argument that both the regulations and the underlying statute constituted an impermissible delegation of legislative power, reasoning that "[t]he exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not from legislative power but is inherent in the executive power to control the foreign affairs of the nation." Therefore, in the Court's view, Congress could not have run afoul of the non-delegation doctrine by authorizing the President to exercise this power "for the best interests of the country" during wartime because the President already possessed such authority. The Knauff Court similarly rejected the argument that the regulations in question were not "reasonable," as required by the statutory authority under which they were issued—which in relevant part, made it unlawful for an alien to enter the United States "except under such reasonable rules ... as the President may prescribe." The Court did so because it viewed the regulations excluding aliens whose entry was "deemed prejudicial to the public interest" as "reasonable in the circumstances of the period for which they were authorized, namely, the national emergency of World War II."

The statutory language regarding war and national emergency—which arguably factored into the Court's decision in Knauff —was deleted from Section 215(a) in 1978. However, it seems unlikely that this deletion would serve as a basis for overruling the Knauff Court's conclusions about whether the power in question was impermissibly delegated to the Executive, or about what constitutes a "reasonable" regulation for purposes of Section 215(a). Knauff's statements about the inherent power of nations to exclude aliens outside the United States with no recognized ties to the country would also generally seem to remain good law.