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IMMIGRATION SEPTEMBER 04, 2026 | The Indian Eye 42
Court Strikes Down 75-Country
Immigrant-Visa Ban as Unlawful
Nationality Discrimination
CYRUS MEHTA AND icy. In Catholic Legal Immi- tries posed a heightened pub- cumstances which would lead a 75-country policy regulated visa
gration Network, Inc. v. Rubio, lic-charge risk. The court treat- reasonable person to conclude issuance. In other words, this was
DAMIRA ZHANATOVA* Judge Jeannette Vargas held that ed the policy not as an ordinary that the applicant is ineligible to not a case about a President’s
the policy was unlawful and be- adjustment in screening, but as receive a visa as provided in the power to limit entry at the bor-
n January 14, 2026, the yond Secretary Rubio’s statuto- a categorical directive that pre- INA and as implemented by the der. It was a case about wheth-
Department of State an- ry authority because it replaced determined outcomes in immi- regulations.” The regulation thus er the State Department could
Onounced that, effective Congress’s individualized immi- grant-visa cases. reflects a basic premise of immi- deny immigrant visas themselves
January 21, 2026, it was paus- grant-visa system with a blanket The case also matters be- grant-visa law: refusals must be based solely on nationality. Be-
ing immigrant visa issuance to nationality-based refusal rule cause it was resolved as a facial anchored in legal ineligibility, cause 8 U.S.C. § 1152(a)(1)(A)
nationals of 75 countries. The that required consular officers to challenge to a government pol- not in a policy preference that forbids nationality discrimina-
Department publicly justified deny immigrant visas even when icy rather than as a review of has no basis in the statute or reg- tion “in the issuance of an im-
the policy on the ground that applicants were otherwise eligi- any one applicant’s visa denial. ulations. migrant visa,” the court treated
applicants from those countries ble. The court also said the INA That framing allowed the court The government relied this as a visa-issuance case and
posed a heightened risk of us- prohibits discrimination based to evaluate whether the State on INA § 221(g), codified at 8 applied that rule directly. Section
ing public benefits or becoming on nationality in the issuance of Department’s rule itself conflict- U.S.C. § 1201(g), as the mecha- 1152(a)(1)(A) states that “no
public charges. That same day, immigrant visas and “explicitly ed with the INA and the APA nism for carrying out the policy. person shall receive any prefer-
Secretary of State Marco Rubio strips the Secretary of State of without requiring the plaintiffs But the court held that § 1201(g) ence or priority or be discrimi-
sent a cable to consular posts authority over consular adjudica- to relitigate individual consular does not authorize categorical nated against in the issuance of
worldwide directing officers to tion of immigrant visas.” decisions one by one. The ruling refusals untethered to statutory an immigrant visa because of
implement the policy, and the As described in the court is significant because it treats the ineligibility. It “merely provides” the person’s race, sex, nation-
announcement gave no end date ruling, the Department of State pause not merely as a procedural that a visa will not be issued if a ality, place of birth, or place of
for the pause. announced an unqualified sus- delay but as an unlawful, nation- consular officer determines that residence”, except as specifically
On August 21, 2026, a fed- pension of immigrant visas for ality-based immigrant visa refus- the applicant is ineligible under provided elsewhere in the stat-
eral judge in the Southern Dis- nationals of 75 countries, re- al system. The decision there- § 1182 or another provision of ute. Judge Vargas concluded that
trict of New York struck down gardless of individual statutory fore turns on three overlapping law, or if the applicant fails to the policy ran directly into that
the Trump administration’s eligibility, on the stated premise limits: visa refusals must rest on comply with the INA. Read to- prohibition because it “requires
75-country immigrant-visa pol- that applicants from those coun- individualized statutory ineligi- gether with 22 C.F.R. § 40.6, the consular officers to discriminato-
bility, the Secretary of State provision permits refusal only rily refuse visas solely on the ba-
may not dictate case out- on a recognized legal ground. sis of the applicant’s nationality”
comes reserved to consular Because the challenged policy and that the text of § 1152(a)(1)
officers, and Congress has required refusals even when no (A) leaves “no doubt that Con-
prohibited discrimination in such ground existed, the court gress intended to abolish nation-
the issuance of immigrant concluded that the government ality-based discrimination in the
visas based on nationality had turned § 1201(g) into a tool immigrant visa process”.
and related protected char- for categorical denial rather than The discrimination point is
acteristics. case-specific adjudication. The broader than nationality alone.
The court’s starting opinion also stressed that Con- Section 1152(a)(1)(A) also bars
point was the structure of gress assigned individualized discrimination in immigrant
the immigration laws them- immigrant visa assessments to visa issuance because of race,
selves. Under the INA, im- consular officers, whereas the sex, place of birth, or place of
migrant visa adjudication is policy made those assessments residence, unless Congress
supposed to be individual- ultimately irrelevant for nation- has created a specific statutory
ized. Consular officers as- als of the listed countries. exception. Although the chal-
sess the applicant’s eligibil- One of the most important lenged policy operated through
ity, determine whether any parts of the ruling is the court’s nationality, the opinion matters
legal ground of ineligibility distinction between visa issuance because it confirms that the im-
applies, and then either is- and entry or admissibility restric- migrant visa process cannot be
sue or refuse the visa under tions. The opinion states that a reorganized around protected
the rules Congress enacted. visa “does not itself authorize classifications that Congress re-
The January 2026 policy did entry into the United States”. moved from visa allocation and
something very different. Instead, it allows the holder to issuance decisions. Judge Vargas
As the court described it, travel to a port of entry and re- stated: “The Policy’s categorical
the policy ordered consular quest admission. That distinc- ban on the issuance of immi-
officers to refuse immigrant tion became decisive when the grant visas to nationals of near-
visas to nationals of the list- government invoked Trump v. ly 40% of the world’s countries,
m of ed countries regardless of Hawaii. In Trump v. Hawaii, the see ECF No. 48-4 at 1, breaches
whether the officer, after
U.S. Supreme Court held that
the commitment of the United
CYRUS D. MEHTA & PARTNERS PLLC individualized review, had a presidential proclamation re- States to adjudicate visa applica-
determined that the appli- stricting entry of nationals from tions based solely on an individ-
cant was otherwise eligible. certain countries did not violate ualized assessment of the appli-
The court’s analysis of 8 U.S.C. § 1152(a)(1)(A) be- cant’s eligibility under the INA,
22 C.F.R. § 40.6 was central. cause that proclamation did not a principle embodied in the INA
That regulation provides: impose limits on visa issuance. generally and Section 1152(a)(1)
“A visa can be refused only The U.S. Supreme Court specif- specifically. The visa ban is thus
upon a ground specifically ically explained that § 1152(a)(1) contrary to law.”
set out in the law or im- (A) is “expressly limited to the tied the policy to public-charge
The administration publicly
regulations.”
issuance” of immigrant visas, not
plementing
It further states that the the broader question of entry or concerns, but the court did not
term “reason to believe,” admissibility. Judge Vargas used accept the idea that this trans-
2 6th Floor as used in INA § 221(g), that same distinction against the formed the policy into a lawful
requires “a determination government here. The court said implementation of the pub-
based upon facts or cir- there was “no question” that the lic-charge provision. The opinion
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