Judge strikes down Trump administration’s immigrant visa freeze for 75 countries

A federal judge struck down a Trump administration policy Aug. 21 that paused immigrant visa issuance for nationals of 75 countries while the State Department reviewed whether its screening procedures adequately identified applicants likely to rely on public benefits in the U.S. 

U.S. District Judge Jeannette Vargas, an appointee of former President Joe Biden, ruled that the State Department policy was “contrary to law” and exceeded Secretary of State Marco Rubio’s authority under federal immigration law. 

“The Policy is thus patently unlawful and must be vacated under the Administrative Procedure Act,” Vargas wrote in the 61-page decision.

The ruling set aside the nationwide policy and any visa refusals based solely on it, requiring the State Department to resume individualized consideration of affected applications.

The administration announced the pause Jan. 14 and implemented it Jan. 21 while the State Department reviewed its screening and vetting procedures. As Zeale News previously reported, the policy covered immigrant visas, which are generally issued to foreign nationals seeking to live permanently in the U.S. It did not apply to temporary visas, including tourist visas. 

The State Department said that nationals of the affected countries posed a high risk of relying on welfare or becoming a “public charge,” a term generally referring to someone likely to depend primarily on government support.

The list included Afghanistan, Brazil, Colombia, Cuba, Egypt, Ethiopia, Ghana, Iran, Iraq, Jamaica, Nigeria, Pakistan, Russia, Somalia, Syria, Thailand, Uganda, Uruguay, and Yemen, among others.

Under the directive, applicants could continue submitting applications, attending interviews, and undergoing reviews for other grounds of ineligibility. Consular officers were instructed to deny applicants found likely to become public charges under existing law. If an applicant cleared the public-charge review and all other eligibility requirements, officers were still directed to refuse the visa under Section 221(g) of the Immigration and Nationality Act while the department developed additional screening tools.

Vargas ruled that the policy conflicted with federal immigration law, which gives consular officers “exclusive authority and discretion” to determine whether an applicant is eligible for a visa. The judge also cited a provision of federal law stating that a person may not be discriminated against in the issuance of an immigrant visa because of nationality, race, sex, place of birth, or place of residence.

The lawsuit was brought by Catholic Legal Immigration Network, African Communities Together, several visa applicants, and U.S. citizens seeking visas for relatives abroad.

Andrew Arthur, resident fellow in law and policy at the Center for Immigration Studies, told Zeale News that the court may have intervened before the State Department completed its policy review. 

“The major issue is that by its terms this wasn’t a final agency action, and therefore wasn’t appropriate for judicial review,” Arthur said. 

The Administrative Procedure Act generally allows courts to review “final agency action.” Arthur argued that the visa refusals were part of an ongoing review rather than the administration’s final decision because consular officers continued interviewing applicants and examining their eligibility.

“This is an ongoing process, and the judge has interposed the court in the middle of this ongoing agency policy determination,” he said. 

The State Department directive instructed officers to document each case and refuse otherwise eligible applicants under Section 221(g) while the department developed additional screening and vetting procedures. Arthur noted that the department could later reconsider those applications.

Arthur also questioned the court’s conclusion that Rubio exceeded his authority. Although consular officers have exclusive authority to approve or deny individual visa applications, Arthur said they make those decisions under policies and guidance established by the State Department.

He said the administration could challenge on appeal both Vargas’ conclusion that the directive constituted final agency action and her interpretation of the secretary of state’s authority to issue guidance to consular officers.

Arthur acknowledged that the case presents legitimate legal questions, noting that it is not “one of those glaringly wrong opinions.” Nevertheless, he predicted that an appellate court would ultimately resolve the principal issues in the administration’s favor.