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    IMMIGRATION                                                       SEPTEMBER 11, 2026       |  The Indian Eye 46

                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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