Federal court in New York canceled The ban imposed by the Donald Trump administration on the issuance of immigrant visas to citizens of 75 countries, including Russia, Belarus and Kazakhstan. The court also vacated all visa denials based solely on this prohibition and ordered the State Department to return to the legally required individual review of each visa application.
In January, the State Department suspended the issuance of immigrant visas to citizens of almost all countries of the former Soviet Union: Russia, Belarus, Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan and Uzbekistan. The list also included many African countries, including Somalia, Egypt and Nigeria, as well as, for example, Iran, Afghanistan, Yemen, Uruguay, Brazil, Thailand and Albania. The department noted that the measures are associated with the danger of “abuse of generosity.”
The State Department's policy was challenged by the non-profit organizations Catholic Legal Immigration Network and African Communities Together, as well as 11 individuals. According to CNN, six plaintiffs went to court after their relatives from Ghana, Jamaica, Guatemala and Ethiopia were denied visas. Another five Colombian citizens were outside the United States applying for work-based immigrant visas.
US law does allow a foreigner to be denied entry if the authorities determine that he or she is likely to become a “public charge”, that is, will be dependent on government assistance. However, such a decision is made individually, taking into account the applicant’s financial situation, age, health, professional skills, family circumstances and other factors.
The case file included a memo that Secretary of State Marco Rubio sent to American diplomatic and consular missions. According to the document, employees were instructed to refuse to issue visas to citizens of countries on the list, even in cases where the applicants could confirm their financial independence.
“The Court ordered that the policy of unconditionally suspending the issuance of immigrant visas to applicants from 75 designated countries be quashed and declared invalid as being contrary to law and beyond the scope of the law. “Further, the court orders that all immigrant visa denials based solely on this policy be vacated and that the relevant agency decisions be remanded for reconsideration in accordance with this order,” the court said in its decision.
Judge Jeanette Vargas also said the ban violated congressional procedures for deciding visa applications, in which consular officers play a key role.
“Congress has given these officers the sole authority and discretion to determine whether an immigrant is eligible for a visa based on specific and detailed criteria set forth in law,” the case notes.
On one, narrower issue, the court sided with the administration. Vargas decided that the State Department was not required to conduct the standard notice-and-comment process before enacting the measure. The judge found that the disputed document was internal instructions for consular officers, and not an independent regulatory rule creating new legal rights or obligations, for the adoption of which such a procedure is considered mandatory.
