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  • Article: Going Beyond IRAP v. TRUMP: Challenging “Bad Faith” Governmental Actions Denying Non-Citizens Admission Into The United States By Cyrus D. Mehta

    Going Beyond IRAP v. TRUMP: Challenging “Bad Faith” Governmental Actions Denying Non-Citizens Admission Into The United States

    by


    The Fourth Circuit’s decision in International Refugee Assistance Project v. Trump upholding the preliminary injunction against President Trump’s travel ban, on the ground that it violated the Establishment Clause of the US Constitution, holds out hope for other similar challenges that have otherwise faced a high bar to overcome the Executive branch’s unbridled discretion to keep out non-citizens of the United States.

    In a lengthy majority opinion, Chief Judge Roger Gregory asked whether the Constitution “protects Plaintiffs’ right to challenge an Executive Order that in the text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

    Courts have continuously applied the “facially legitimate and bona fide” test of Kliendienst v. Mandel to challenges to individual visa denials. Although Mandel sets a high bar to plaintiffs, the Fourth Circuit’s majority opinion emphasized that the government’s action must both be facially legitimate as well as be bona fide. The government’s action, such as with the executive order banning nationals from six Muslim majority countries in the name of national security may have been facially legitimate, but may not have been bona fide as the President used it as a cover to fulfill his promise to ban Muslims from the United States. This constituted bad faith, according to the majority opinion, and thus the EO was not bona fide. Where the good faith has “seriously been called into question,” the court concluded it should be allowed to “look behind the stated reason for the challenged action.” The court used the test in Lemon v. Kurtzman to establish that the travel ban violated the Establishment Clause of the US Constitution by disfavoring Muslims. Relying on statements that President Trump made both during his campaign and after he became President, the travel ban was in effect a legal attempt to effectuate Trump’s promised Muslim ban rather than advance national security.

    The Fourth Circuit opinion broke new ground by challenging the long-held notion that the courts must always give deference to the government’s national security justification. The following extract from the majority opinion is worth noting:

    The Government argues that we should simply defer to the executive and presume that the President’s actions are lawful so long as he utters the magic words “national security.” But our system of checks and balances established by the Framers makes clear that such unquestioning deference is not the way our democracy is to operate. Although the executive branch may have authority over national security affairs, see Munaf v. Geren, 553 U.S. 674, 689 (2008) (citing Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988)), it may only exercise that authority within the confines of the law, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645–46, 654–55 (1952) (Jackson, J., concurring); and, of equal importance, it has always been the duty of the judiciary to declare “what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

    To what extent can IRAP v. Trump be extended to other situations where a visa may be denied in bad faith and thus not meet the “facially legitimate and bona fide” test of Mandel? In Kerry v. Din, the Supreme Court upheld the visa refusal of the beneficiary of an I-130 petition filed by his US citizen spouse under the terrorism ground of inadmissibility pursuant to INA 212(a)(3)(b). According to the concurrence by Justice Kennedy, the beneficiary, an Afghan national, who once worked for the Taliban government in Afghanistan, received sufficient notice by being provided the section number of the INA under which he was found inadmissible, and thus the government met the “facially legitimate and bona fide test” of Mandel. However, Justice Kennedy did indeed emphasize, “Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on §1182(a)(3)(B) encompassed.”

    In IRAP v. Trump, the plaintiffs successfully showed bad faith by President Trump who violated the Establishment Clause of the US Constitution. What other sorts of bad faith may a plaintiff show to convince a court to look behind the “facially legitimate and bona fide” test? Perhaps, if the facts in Kerry v. Din showed that the beneficiary was unlawfully detained for hours in the US Consulate during his visa interview and forced to admit that he was involved in terrorist activities on condition of being released, even though he was not, that could arguably be tantamount to bad faith? In this hypothetical situation, the constitutional violation which gives rise to bad faith would be the violation of the beneficiary’s due process rights rather than the violation of the Establishment Clause. The beneficiary, in this situation, could potentially cite to landmark cases such as Zadvdas v. Davis (finding that the power of the Executive is “subject to important constitutional limitations,” holding that LPRs are entitled to due process rights, and that their indefinite detention is a violation of those rights), Hamdi v. Rumsfeld (noting that the President’s Article II powers are subject to review, holding that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention), Boumediene v. Bush, (specifically noting that the political branches cannot “switch the Constitution on or off at will” and providing the right of habeas review to a non-citizen outside the US) and INS v. Chadha (noting that Courts are empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.”).

    Finally, the plaintiff would also need to demonstrate standing in order to bring the claim. To establish Article III standing, a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). In IRAP v. Trump, the government in an effort to object to standing to the plaintiffs asserted that in Saavedra Bruno v. Albright, a consular official’s decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise. However, the court noted that Saavedra also stands for the proposition that when cases are brought by U.S. citizens, or when statutory claims are combined with constitutional ones, judicial review is permitted.

    In a fact pattern similar to Kerry v. Din, the I-130 petitioner, a US citizen, would have standing to bring the action. What about an H-1B visa holder, with three months remaining on that visa, applies for a renewal of that visa at the US consulate? The consular officer, animated by the new rhetoric flowing from the administration that H-1B workers steal jobs of US workers, badgers the H-1B applicant, under threat of many years of imprisonment, to falsely admit she is not performing the duties indicated in the perfectly bona fide H-1B petition and revokes the existing visa as well as refuses to issue a new H-1B visa. Would the H-1B worker have standing to allege bad faith on the part of the consular officer? The H-1B plaintiff can potentially assert that she is residing in the US, and also enjoys “dual intent” under the H-1B visa. [Under INA 214(b), an H-1B beneficiary is allowed to harbor an intent to remain in the US permanently even though the H-1B visa is temporary]. If the H-1B holder has also been sponsored for a green card through the employer, this would further bolster her standing, as she had not just harbored an intent to reside permanently but has taken concrete steps to do so. Finally, the US employer can also file an action as the petitioner of the H-1B who will be affected if she is unable to resume employment in the US. Still, being overaggressive, coercive, and sloppy, even to an extent that would violate due process rights assuming the targets of one’s over-aggressiveness had standing to assert such rights, may not necessarily imply bad faith, such as having a hidden agenda like Trump’s travel ban. Nevertheless, the evolving jurisprudence in IRAP v. Trump does give other plaintiffs food for thought to blow a hole through the “facially legitimate and bona fide” wall set forth in Mandel.

    The government may have maximum power to deny non-citizens admission into the US, but that power is not absolute. IRAP v. Trump, and many other successful challenges to Trump’s travel ban, may provide a pathway for a plaintiff to seek judicial review of governmental actions that have been conducted in bad faith.

    This post originally appeared on The Insightful Immigration Blog.


    About The Author

    Cyrus D. MehtaCyrus D. Mehta is the Founder and Managing Partner of Cyrus D. Mehta & Partners PLLC. He is a prolific speaker and writer on contemporary immigration topics. He graduated with law degrees from Cambridge University and Columbia Law School.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 3 Comments
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      It is disturbing to see people agreeing with Judge Gregory's decision. Particularly people like Cyrus who should be able to see what is happening here.

      Gregory found nothing wrong with the travel ban order. In fact, he said if there hadn't been allegations of bad faith, his inquiry would have ended there. Allegations of bad faith? That's all you need to avoid the ruling in Mandel? By that standard, Mandel is meaningless. You can always look behind the executive order, no matter what it says or does. You just have to get some schmuck to say he thinks it was issued in bad faith.

      But Gregory goes much further. He finds support for the allegations of bad faith in Trump's campaign statements. According to Northwestern Law School Professor Eugene Kontorovich, “there is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.”
      https://www.washingtonpost.com/news/...=.ac6a12a73743

      If the supreme court doesn't save us from Gregory and the other judges who have made such holdings, Trump will not be able to issue any executive order dealing with terrorism in a Muslim country, no matter what it says or does. But maybe that's what the people who like Gregory's decision want.

      I do a much better job of explaining this in my article, "Trump May Face A Constitutional Crisis Over Fourth Circuit’s Travel Ban Decision." http://www.huffingtonpost.com/entry/...b08861ed0cca0e

      Nolan Rappaport
    1. MKolken's Avatar
      MKolken -
      This is all about politics and not the practical realities of the confines of the existing immigration law. Trump doesn't need a "travel ban" to prevent individuals from being admitted to the United States, and anyone who is intellectually honest in the immigration law community knows it.

      As for whether Trump will ultimately prevail, I'll defer to Harvard constitutional law professor Alan Dershowitz who explained: “The idea of focusing so heavily on campaign rhetoric and essentially saying, look, if Obama had issued the very same order with the same words it would be constitutional, but if Trump issues it, it’s unconstitutional because he said some things about Muslims in the run-up to the campaign... That's not the way the law is supposed to operate."
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      With all due respect to those who think that Trump's campaign statements, which tell the obvious truth about his real reasons for the six Muslim country entry ban, as opposed to concocted national security pretexts made up after the decision to issue the ban had already been made (as the record cited by Judge Gregory clearly shows) should be obliterated in an Orwellian "Memory Hole", there is also a record of actions after Trump was elected or inaugurated as president that show a clear continuity between his post presidential ban orders and his previous inflammatory anti-Muslim campaign statements.

      To give just two examples, after his election, Trump appointed two of America's most vocal and best known haters (this is the only word that makes any sense to use) of Islam as a religion, Michael Flynn (who called the Muslim religion a "cancer", and Stephen Bannon, who has stated that the (white) "West" is in locked in a "War of Civilizations" with the Muslim world, as his top advisers. There cannot be any doubt that Bannon especially played a major role in developing the entry ban orders, much more than Trump's real national security experts, who according to every report that I have seen, were shunted aside in what was obviously a purely political move, in which "national security" was only an empty facade.

      As virtually every legal scholar agrees, the controlling standard governing the ban order is whether there is an "affirmative showing of bad faith" Kerry v. Din, (2015) in issuing the order. No one disputes that this is a very high bar to meet. It would not be surprising if when Justice Kennedy enunciated this standard, he might never have expected that any visa denial or any other executive action barring an immigrant or immigrants from entering the United States would even come close to meeting this standard.

      By his (and by extension, the DOJ's) egregious bad faith in prevaricating about the obvious and real reasons for this ban, bad faith which arguably borders on attempting an actual fraud on the court, Donald Trump has, once again, defied expectations. If the Supreme Court upholds his ban and endorses his distortion and twisting of the truth about the motives for his order, America may see many other examples during this presidency of presidential abuses of power which were once unthinkable.

      Roger Algase
      Attorney at Law
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