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IMMIGRATION SEPTEMBER 04, 2026 | The Indian Eye 43

stated that the “Nationality-Based Pause lenges to the lawfulness of agency policies try ban. It is a reminder that, even in im- enacted and exceeded the Secretary’s law-
cannot be fairly read as implementing governing visa issuance are different from migration law, where executive author- ful authority.
the public-charge provision,” and instead attempts to overturn individual consular ity can be broad, Congress still controls Nationals of the listed countries may
found that the policy contravened other determinations in particular cases. the legal framework for visa issuance. no longer be refused immigrant visas
INA provisions, especially the nationali- The court vacated the policy under The broader significance of the deci- solely because of the 75-country nation-
ty-discrimination rule and the visa-refusal § 706(2)(A) of the Administrative Pro- sion is that it reaffirms several basic lim- ality-based pause. On the other hand, a
rules. The court’s objection was not that cedure Act, 5 U.S.C. § 706(2)(A), and its on executive control over immigrant separate 39-country security-based ban
the administration applied public-charge ordered that any immigrant visa refusal visa issuance. Congress placed consular implemented through a Presidential Proc-
rules too aggressively. It was that the based solely on the policy be set aside and officers at the center of immigrant visa lamation under INA § 212(f) remains in
government used public-charge rheto- remanded for further proceedings consis- adjudication, required visa refusals to rest effect. Although the two measures overlap
ric as the rationale for a different kind of tent with the opinion. At the same time, on recognized legal grounds, prohibited in part, they are distinct policies. Accord-
measure entirely: a categorical nationali- the court limited that relief to policy-based discrimination in immigrant visa issuance ingly, the ruling’s practical effect is great-
ty-based immigrant-visa ban that the stat- refusals. Refusals supported by other valid based on nationality and related classifica- est for nationals whose eligibility was re-
utory scheme does not authorize. grounds were not disturbed. That reme- tions, and withheld from the Secretary of stricted only by the 75-country pause. For
The court’s analysis of Secretary Ru- dy reflects the logic of the opinion itself: State the power to dictate which individ- nationals who remain subject to the sepa-
bio’s authority under 8 U.S.C. § 1104(a) the court did not say that immigrant visa ual visa cases must be granted or denied. rate 39-country security-based restriction,
was equally important. Although the applicants from the listed countries were By replacing case-by-case adjudication the vacatur of the 75-country pause does
Secretary of State has broad authority to automatically entitled to visas, but it did with a blanket, nationality-based ban, the not, by itself, eliminate any independent
administer immigration laws through dip- hold that the government could not law- 75-country policy conflicted with each of restrictions that continue to apply under
lomatic and consular channels, the INA fully use this nationality-based policy those limits. For that reason, the court the proclamation.
reserves to consular officers the functions to deny them. That is why the decision concluded that the policy was incompat- * Damira Zhanatova is an Associate at
relating to the granting or refusal of visas. matters beyond this particular 75-coun- ible with the statutory scheme Congress Cyrus D. Mehta & Partners PLLC.
The court concluded that the January ________________________________________________________________________________________________________________________________________________________________________________________________
2026 cable crossed that line because it did Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
not merely guide officers in how to apply
existing law. It commanded them to reach & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
a predetermined result. As the opinion mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
put it, the policy “overrides consular dis-
cretion and decision-making and dictates Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
whether immigrant visas shall be granted
or denied.” That, the court held, exceeded of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
the Secretary’s lawful role. Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
The court also rejected the govern-
ment’s threshold arguments that the case Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
could not be heard at all. It concluded that on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
the policy was final agency action because
it reflected the government’s settled and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
operative position and immediately al- and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
tered the framework governing immigrant
visa adjudications for applicants from the immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
covered countries. It also rejected the the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
government’s reliance on consular non-
reviewability, reasoning that facial chal- in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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