Understanding INA Section 212(f): The President’s Authority to Suspend the Entry of Migrants

Typically, presidents have used INA § 212(f) to suspend the entry of noncitizens who have an affiliation with a group that the U.S. government opposes, or who are engaged in objectionable conduct. Some examples include President Biden suspending the entry of certain immigrants and nonimmigrants who immigration officials determine to be “enabling corruption.” Similarly, President Trump suspended the entry of certain persons “contributing to the situation in Mali,” following the breakdown of a ceasefire agreement in that country. President Obama suspended the entry of certain persons who conducted “grave human rights abuses by the governments of Iran and Syria via Information Technology,” and President Bush suspended the entry of immigrants or nonimmigrants “engaged in or benefiting from corruption,” to name a few.

The Trump administration used this authority more broadly, to execute several large-scale restrictions on entry of noncitizens. In a series of orders known collectively as “the Muslim Ban” or “the travel ban,” President Trump used this authority to ban the entry of people from seven predominantly Muslim countries, even those who already had lawful permanent resident status. Courts found that this order was likely to deprive individuals of their due process rights by failing to give them such notice or a hearing prior to restricting their ability to travel. In response, the Trump administration introduced a revised 90-day travel ban of individuals from the same countries, but exempted those with green cards and added restrictions on North Koreans and certain Venezuelan government officials. This was largely seen as an attempt to circumvent constitutional challenges to the initial ban that it was based on racial or religious animus. Ultimately the third version of the travel ban was upheld by the Supreme Court in Trump v. Hawaii (2018). Notably, even in that decision, the court affirmed that 212(f) could not be used to “expressly override” other provisions of the INA.

In one of the most sweeping uses of the authority, President Trump used 212(f) to suspend the entry of noncitizens at the U.S. southern border between ports of entry in October 2018. This proclamation was almost immediately challenged in the courts by several legal service providers in East Bay Sanctuary Covenant v. Trump. The Ninth Circuit Court of Appeals blocked the ban from being implemented. Another ban, commonly known as the “third-country transit ban,” was then introduced by Trump in 2019 in an attempt to prevent individuals from claiming asylum in the United States if they first transited through a third country. This ban was also challenged in the courts by the East Bay Sanctuary Covenant and related organizations. The litigation is ongoing, as subsequent rules limiting access to asylum in the United States continue to be challenged.

Some other uses remain legally uncertain. There is an ongoing debate about the extent to which the president can use this authority to restrict immigration in response to perceived domestic issues. In April of 2020, the Trump administration issued a proclamation temporarily suspending the entry of people with non-immigrant visas, ostensibly to curb unemployment during the COVID-19 pandemic. Some courts found that since unemployment within the United States was a purely domestic issue, the authority to suspend immigration should not apply, while other courts disagreed and held that this was within the president’s authority. A similar debate played out in court regarding a different suspension of entry signed by President Trump which banned the entry of certain noncitizens who lacked specific health insurance plans. Both proclamations were later revoked by President Biden before these disagreements reached the Supreme Court, and the question of whether the authority may be used to address purely domestic policy concerns remains an unsettled area of law.

Historically, the suspension of entry authority has typically applied to people at United States embassies and consulates applying for visas. If a consular officer determines that a person seeking a visa is subject to a 212(f) restriction, they typically refuse to issue a visa.

Increasingly, however, the restrictions have been implemented by U.S. Customs and Border Protection at the U.S. southern border, or by asylum officers in determining asylum eligibility at initial screenings.

Because of the broad discretionary authority granted by 212(f), the executive branch has had wide latitude in deciding when people can have their entry “suspended,” and who is authorized to make those determinations. In particular, people denied entry often do not have the power to challenge their denials in federal court (this is known as the “plenary power” doctrine).

However, as broad as this power may be, it is not limitless. It is notable, for example, that federal courts have held in the Trump “Muslim Ban” cases that the power to suspend entry does not allow the executive branch to completely ignore due process. And it is clear that the “plenary power” ends where other Congressionally-enacted law begins—such as with the INA’s asylum provisions.