Can Trump Really Ban All Immigration to the United States?

TLDR version: No.

Update: As expected, a “U.S. Department of Homeland Security official who requested anonymity said it would only apply to people applying for permanent residence from outside the United States, not those already in the country seeking to adjust their status.” Source: MSN

President Trump sent immigration policy advocates, lawyers, and aspiring immigrants into a frenzy tonight with his hyperbolic tweet that he is looking into banning all immigration to the United States due to the threat of an “invisible enemy” and to protect American jobs.

For all means and purposes, immigration to the United States has already halted. There are various travel bans in place some which pre-dates the coronavirus outbreak. Consulates abroad are closed for the most part and not processing visa applications. USCIS has cancelled all in-person services. The Trump Administration has quietly put an end to asylum at the border by empowering the CDC to turn back asylum seekers using the coronavirus pandemic as an excuse to restrict asylum.

Rumor mills indicate that the proposed White House executive order is real, and has been in the works for several weeks. Much like the Muslim Ban (and various iterations of it) which suspended the physical entry of nationals from certain countries, this proposed order most likely governs and temporarily suspends the entry of immigrants and non-immigrants to the United States, with certain exceptions for U.S. citizens and green card holders. Without the actual text of the executive order released and signed into law, it is impossible to assess what it entails or pertains to, and as such, at this time, no further information is available as to the contents of the order. It is also important to note that at this time, the executive order is not in effect.

However, we can venture to guess what the Executive Order could propose and the underlying authority of it. The President’s authority to ban all immigration to the United States stems from INA 212(f), which provides:

“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.”

This authority has been upheld by the Supreme Court since the 1950s (Kleindienst v. Mandel), and even when there is no apparent detriment to our national interest, such as the Muslim ban cases (Trump v. Hawaii). It is important to note that INA 212(f) only gives the President the power to ban the actual entry of people into the United States. In other words, the new Executive Order is most likely to be yet another travel ban, at a time when most consulates are closed, and most travel is already suspended, which makes no sense other than to placate the President’s most ardent supporters.

The Executive Branch does not have the authority to unilaterally suspend the processing of petitions, adjustment of status, citizenship applications or any other change or extension of status applications.

As such, persons who are already physically present in the United States and who are already processing their applications for immigration benefits should continue to do so until further notice, and not make any plans to travel abroad during this pandemic. However, persons who are abroad (whether immigrants or non-immigrants) should probably tie up their affairs and return to the United States as soon as humanly possible in anticipation of a broader coronavirus travel ban.

We will keep you posted and let you know if anything in the proposed order pertains to you once it has been signed into law and available to the public.

More immigration-related news during these times is updated on this blog.

Photo Credit: Neil Cummings

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[…] story short, he doesn’t have the authority to do that under any statute except for Section 212(f) of the Immigration and Nationality Act (INA), which allows him to impose a temporary¬†travel […]

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