A Biden-appointed federal judge on Friday vacated the Trump administration’s suspension of immigrant visa issuance for nationals of 75 countries, using an APA vacatur to do so, sidestepping the Supreme Court’s recent limits on universal injunctions in Trump v. CASA.
Biden appointee U.S. District Judge Jeannette Vargas ruled that Secretary of State Marco Rubio exceeded his authority when he ordered consular officers to refuse visas based on an applicant’s nationality alone. She called the policy “patently unlawful.”
Rubio’s State Department announced the suspension on January 14, effective January 21. The department said those countries posed a high public-charge risk, citing federal welfare-use data.
It was a big list. Afghanistan, Brazil, Colombia, Cuba, Haiti, Iran, Iraq, Jamaica, Nigeria, Pakistan, Russia, Somalia, Syria, Thailand, Uganda, Uruguay, and Yemen were among the 75 countries covered. All told, it reached nearly 40 percent of the world’s countries.
The State Department put it plainly:
“The Trump administration is bringing an end to the abuse of America’s immigration system by those who would extract wealth from the American people.”
The January 21 order covered immigrant visas for people trying to move permanently to the United States. It did not cover the tourist and business visas used by most travelers. Interviews for the affected applicants continued, although the State Department had already told its officers how those cases had to end.
Long before Rubio sent the cable, visa officers could turn people away as likely public charges after reviewing their health, age, family, finances, schooling, and work skills.
Someone could clear that review and every other check. It made no difference. If the applicant came from one of Rubio’s list of countries, the cable instructed the officer to apply Section 221(g) and refuse the visa.
Congress did not give Rubio that call, Vargas found. It gave it to the officer who reviewed the application. She also pointed to the law’s prohibition on discrimination in the issuance of immigrant visas based on nationality.
“The outcome is predetermined. The visa will be refused.”
The administration argued that the refusals were legal because consular officers entered them under an existing section of immigration law. Vargas called that “an exercise in Orwellian logic.” Section 221(g), she wrote, allows the government to refuse ineligible applicants. It does not give the State Department a blank check to turn away eligible people from countries Rubio placed on a list.
Two left-wing immigration groups filed in Manhattan. Catholic Legal Immigration Network and African Communities Together. The Southern District is a reliable venue for this kind of challenge. They were joined by five immigrant visa applicants and six Americans sponsoring relatives abroad. The policy had already caught applicants from Ghana, Guatemala, Jamaica, and Colombia.
The Justice Department wanted the case tossed before Vargas touched the cable itself. Its lawyers raised standing, the rule against reviewing consular decisions, and whether the cable counted as final agency action. Vargas said she was not reopening one person’s visa case. Rubio had issued an order for the entire department, and that order could be reviewed.
The government kept one claim. Vargas ruled in the administration’s favor on notice-and-comment grounds, finding that Rubio’s cable was an internal directive to State Department employees, not a legislative rule requiring public input. A partial win for Rubio.
Rubio’s order is gone. So are visa refusals that relied on nothing else. Those files are returned to consular officers, and they can still say no on public-charge grounds, criminal history, security concerns, or other grounds already in federal law.
Nobody received a visa from Vargas on Friday. Those applicants simply get another decision without Rubio’s order dictating the answer before the interview is finished.
The parties have until September 11 to tell Vargas what they want to do with the remaining claims in the case. Until then, the visa officers Rubio tried to box in have the final call again. The Second Circuit is next.
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