Do you remember my article last year, “If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens”?
By Nolan Rappaport

I made two predictions. First, that if elected, Donald Trump would use section 212(f) of the Immigration and Nationality Act (INA) to establish a temporary ban on Muslim alien admissions.

Second, that he would base the ban on the provision in the INA for excluding nationals from the Visa Waiver Program who have been present in Iraq, Syria, or other designated countries at any time on or after March 1, 2011, instead of imposing a ban on all Muslim aliens.

The article also provides information about the nature of the 212(f) authority and a brief history of how previous presidents have used it.

If he is elected to the presidency, Donald Trump will have statutory authority to
suspend the entry of all Muslim aliens (April 20, 2016).
By Nolan Rappaport

In a news release on December 7, 2015, Donald J. Trump called for “a total and complete
shutdown of Muslims entering the United States until our country's representatives can
figure out what is going on.”

To put this in perspective, this is just a campaign talking point. It is by no means a certainty that he actually would do this if he were to be elected. Nevertheless, he may intend to impose a temporary ban of some kind on Muslim admissions to the United States if he is elected and our country's representatives still have not figured out “what is going on.” Would he have the authority to do it? Yes, in fact, the discretionary power of the president to suspend alien admissions to the United States is much greater than his prosecutorial discretion over the enforcement of the immigration laws. The president has explicit statutory authority to suspend all or any class of alien admissions by issuing a proclamation saying he has found that the suspended alien admissions were detrimental to the interests of the United States, and his suspension can last as long as he deems necessary. Moreover, waivers are not available. This authority is provided by section 212(f) of the Immigration and Nationality Act (INA), which reads as follows:

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.
Whenever the Attorney General finds that a commercial airline has failed to
comply with regulations of the Attorney General relating to requirements of
airlines for the detection of fraudulent documents used by passengers traveling to
the United States (including the training of personnel in such detection), the
Attorney General may suspend the entry of some or all aliens transported to the
United States by such airline (Emphasis added).

The fraudulent document part of this provision was added by section 124(b) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

Although section 212(f) has been in the INA since it was enacted in 1952, it only has
been employed in relatively limited circumstances. Usually, it has been used to bar the
entry of persons who have engaged in conduct deemed contrary to United States interests,
such as undermining democratic institutions in a particular country, or engaging in
human rights abuses, or other conduct deemed objectionable. It also has been employed,
however, in other types of situations, such as interdicting Haitian nationals on the high
seas and returning them to Haiti.

Read more at – http://www.ilw.com/articles/2016,0420-Rappaport.pdf

About the Author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
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