A federal judge in Manhattan on Friday struck down the State Department’s suspension of immigrant visa issuances for nationals of 75 countries, ruling that the nationality-based policy violated federal immigration law and exceeded Secretary of State Marco Rubio’s authority.
U.S. District Judge Jeannette A. Vargas vacated the policy, which took effect Jan. 21, and set aside immigrant visa refusals based solely on the suspension. Those cases must be returned to consular officers for further proceedings, although applicants are not automatically entitled to visas.
The ruling came in Catholic Legal Immigration Network Inc. v. Rubio, a lawsuit brought by immigration advocacy organizations, visa applicants and U.S. citizens seeking to bring relatives to the United States.
The State Department announced Jan. 14 that it would pause immigrant visa issuances for nationals of 75 countries because it considered immigrants from those nations to be at high risk of using public benefits or becoming public charges. A cable sent the same day instructed consular officers to refuse immigrant visa applications under Section 221(g) of the Immigration and Nationality Act, or INA, if an applicant was a national of one of the designated countries and had not been refused on another ground of ineligibility.
The designated countries included South Asian nations such as Afghanistan, Bangladesh, Bhutan, Nepal and Pakistan, as well as countries in Africa, the Caribbean, Latin America, the Middle East and Europe. The full list included Afghanistan, Bangladesh, Bhutan, Cambodia, Colombia, Haiti, Iran, Jamaica, Nepal, Nigeria, Pakistan, Russia, Somalia, Syria, Thailand and Yemen, among others.
Vargas said the policy effectively barred the issuance of immigrant visas to nationals of nearly 40% of the world’s countries, regardless of whether individual applicants otherwise qualified under U.S. immigration law.
“The Policy, which categorically prohibits the issuance of immigrant visas based upon the nationality of the applicant, represents a direct abrogation of this statutory scheme,” Vargas wrote in the 61-page opinion.
Court finds nationality discrimination
The judge concluded that the policy violated an INA provision that generally prohibits discrimination in the issuance of immigrant visas based on a person’s race, sex, nationality, place of birth or place of residence.
The law, 8 U.S.C. § 1152(a)(1)(A), broadly provides that no person may receive preference, priority or discriminatory treatment in immigrant visa issuance based on nationality, subject to limited exceptions that the court held did not apply.
Vargas rejected the government’s reliance on the Supreme Court’s 2018 decision in Trump v. Hawaii, which upheld a presidential entry restriction affecting nationals of several countries. That decision distinguished between restricting entry to the United States and restricting visa issuance, the judge said.
“The Supreme Court’s holding rested upon the ‘distinction between admissibility — to which [Section] 1152(a)(1)(A) does not apply — and visa issuance — to which it does,’” Vargas wrote. “There is no question that the Policy at issue here regulates visa issuance.”
The policy ordered consular officers to continue interviewing applicants and assessing all possible grounds for visa ineligibility, including the public-charge provision. However, it required officers to refuse applicants under Section 221(g) if no other ground of ineligibility was found.
Vargas said that mandate was unlawful because Section 221(g) permits visa refusals only when an applicant is ineligible under immigration law, has submitted an incomplete or noncompliant application, or is otherwise barred by law. The regulation governing visa refusals also states that a visa may be refused only on grounds specifically set out in law or implementing regulations.
“Whether the Policy is construed as mandating a finding of ineligibility, thus overriding the consular officer’s contrary determination, or as requiring consular officers to refuse visas to eligible applicants where no grounds exist in the law, the Policy violates Section 1201(g) and 22 C.F.R. § 40.6,” Vargas wrote.
Limits on Rubio’s authority
The court also ruled that Rubio exceeded his authority under the INA.
Federal law assigns the secretary of state responsibility for administering immigration laws involving diplomatic and consular officers, but specifically excludes the “powers, duties, and functions” assigned to consular officers regarding the granting or refusal of visas.
The judge found that the cable’s mandatory language — directing officers that they “must refuse” immigrant visas for nationals of designated countries — improperly predetermined visa outcomes and displaced consular officers from their legal role.
“The outcome is predetermined. The visa will be refused,” Vargas wrote. “The Policy thus displaces consular officers from the role Congress assigned them in the visa issuance process.”
The court found that the plaintiffs had legal standing because the policy separated U.S. citizens from relatives seeking immigrant visas and deprived applicants of a meaningful opportunity to obtain a visa. It also rejected the government’s argument that the doctrine of consular nonreviewability prevented judicial review.
The lawsuit challenged a departmentwide policy rather than the merits of individual visa decisions, Vargas said. While the doctrine generally prevents courts from reviewing a consular officer’s denial of a particular visa, it does not bar an Administrative Procedure Act challenge to a broader agency policy governing visa decisions.
What the order does
The decision vacates the State Department’s 75-country suspension of immigrant visa issuances and declares that the policy violated the INA’s visa-refusal provision, anti-discrimination provision and the regulation limiting grounds for visa refusals.
It also vacates any visa refusal based solely on the policy and remands those cases to consular officers for fresh consideration.
However, the ruling does not overturn visa denials based on other legal grounds, such as a determination that an applicant is inadmissible under the INA. A refusal remains in place if a consular officer independently found another ground of ineligibility, even if the decision or notification also referenced the now-vacated policy.
The ruling does not require consular officers to approve any application. Instead, it restores their authority to conduct individualized adjudications under existing immigration law.
Vargas declined to remand the policy itself to the State Department, writing that further agency deliberation could not cure what she described as fundamental legal defects. However, she ordered that individual visa matters affected solely by the policy be remanded for adjudication by consular officers.
The judge also granted declaratory relief, finding that the State Department’s nationality-based suspension of immigrant visa issuances was unlawful.
The court granted summary judgment to the plaintiffs on their claims that the policy was contrary to law and violated the agency’s governing regulations. It ruled for the government on the plaintiffs’ separate claim that the policy was adopted without required notice-and-comment rulemaking.
Vargas directed the parties to submit a joint letter by Sept. 11 outlining how they propose to proceed on the remaining claims in the case.