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Law360 (December 1, 2020, 7:51 PM EST ) The Trump administration urged the D.C. Circuit to keep intact a presidential order blocking certain visa holders from moving to the U.S., saying the visa ban was necessary to shore up the U.S. response to the coronavirus-fueled economic downturn.
U.S. President Donald Trump fulfilled the "sole prerequisite" that the Supreme Court set on his authority to block noncitizens from entering the country when he explained that the domestic job market, plagued with rising unemployment as a result of the pandemic, had to be shielded from foreign workers, the administration said Monday in response to immigrants' claims that the ban's economic rationale didn't hold up.
"Here, the president made specific findings about the detrimental impact of allowing entry to aliens when unemployment rates are historically high and the economy is suffering the effects of the COVID-19 pandemic. Section 1182(f) [of the Immigration and Nationality Act] requires no more: The proclamations are lawful," said Trump, the U.S. Department of Homeland Security and the State Department in their brief Monday.
In September, a lower federal court ruled that the visa ban was constitutional, while also finding that the State Department had illegally stopped processing certain visa applications under the visa ban.
The Trump administration filed a notice to appeal the portion of the ruling faulting the State Department.
But work visa and family visa holders urged the D.C. Circuit to review the lower court's visa ban finding, arguing that preventing foreign workers from entering the U.S. wouldn't address the ongoing economic recession.
Trump and his administration countered by saying the economic reasoning needed to be assessed in light of the health emergency.
"Plaintiffs' challenge to the soundness of the policy choices made by the president is wrong and ignores the extraordinary economic circumstances that this country faces," they said.
The government acknowledged that there wouldn't be a "perfect alignment" between the foreigners barred from entering the country and the American residents who lost their jobs during the pandemic, but that it would, "in some measure," offer U.S. workers a reprieve.
In 2018, the Supreme Court ruled that Section 1182(f) of the Immigration and Nationality Act allows the president to block noncitizens from entering the country, if the president deems them a threat to the national interest. That split high court decision upheld Trump's previous bar on entry for individuals from several Muslim-majority countries, restrictions commonly referred to as a "Muslim ban."
Trump highlighted that 2018 ruling to the D.C. Circuit, saying under the decision, the Supreme Court barred any suits to his exclusion power challenging his reasoning for wielding it. If accepted, Trump's argument would put a hammer to a significant portion of the immigrants' visa ban challenge.
Jesse Bless of the American Immigration Lawyers Association, counsel for the immigrants, called Trump's arguments a "vigilant defense" during a Tuesday call with Law360.
"Our position, fundamentally, is that there are parameters on the president's powers ... to ban the entry on noncitizens," Bless said.
In court filings, the suing immigrants and businesses and third-party states and local jurisdictions said the visa ban would frustrate businesses' ability to recruit highly skilled workers and would set back the U.S.' economic recovery.
The immigrants have further tried to distinguish the disputed visa ban from the Muslim ban by saying the visa ban concerns the domestic issue of unemployment, but the Muslim ban implicated foreign policy security concerns. The president may exclude foreigners for foreign policy reasons, but not for domestic ones, the immigrants claim.
Trump refuted that domestic-foreign distinction, saying immigration law doesn't draw a line between the two. Judge Mehta also rejected that argument, but a California federal judge accepted it in a separate challenge against the visa ban and shielded the plaintiffs — a business coalition including technology giants Apple Inc. and Google LLC — from the visa ban.
The Ninth Circuit is reviewing the California order.
The immigrants are represented by Jesse M. Bless of the American Immigration Lawyers Association, Karen C. Tumlin and Esther H. Sung of the Justice Action Center, Stephen W. Manning of Innovation Law Lab, Andrew J. Pincus of Mayer Brown LLP, Cleland B. Welton II of Mayer Brown Mexico SC and Laboni A. Hoq of the Law Office of Laboni A. Hoq.
Trump is represented by Aaron Goldsmith, Joshua Press, Thomas York and James Wen of the U.S. Department of Justice's Office of Immigration Litigation.
The case is Domingo Gomez et al. v. Trump et al., case number 20-5292, in the U.S. Court of Appeals for the D.C. Circuit.
--Editing by Stephen Berg.
For a reprint of this article, please contact reprints@law360.com.
