Introduction

As 2017 began, thousands of refugees and other displaced persons abroad were on their paths to escaping the dangers of their home countries through one of several U.S. humanitarian migration pathways. 1Open this footnote Close this footnote 1 The term “refugee” as used in this Essay refers to those in overseas refugee processing. I use “refugee litigation” here to refer to litigation on behalf of refugees and other displaced persons abroad. …Open this footnote Close John Doe 1, an Iraqi citizen whose life was in danger because of his service as an interpreter for the U.S. Army, had been conditionally approved for refugee resettlement to the U.S., where he planned to reestablish his life with the support of his former military supervisor. 2Open this footnote Close this footnote 2 See Class Action Complaint for Declaratory and Injunctive Relief ¶¶ 7, 144-47, Jewish Family Serv. of Seattle v. Trump, No. 17-1707 (W.D. Wash. Nov. 13, 2017) [hereinafter JFS Complaint]. The pleadings for the lawsuits discussed in this Essay are available at Litigation, Int’l Refugee Assistance Project, https://perma.cc/XL93-6BAF (archived Jan. 29, 2019). …Open this footnote Close J.A., a young woman in El Salvador who had been repeatedly threatened by gang members, had completed every step of processing for her parole application under the Central American Minors program and had been told that she and her son would soon be on a flight to reunite with her mother, who has been living in the U.S. with lawful status. 3Open this footnote Close this footnote 3 See Class Action Complaint for Declaratory and Injunctive Relief ¶¶ 8, 93-97, S.A. v. Trump, No. 18-3539 (N.D. Cal. June 13, 2018) [hereinafter S.A. Complaint]. …Open this footnote Close

The inauguration of President Trump and the onslaught of executive actions that followed, however, trapped Doe 1, J.A., and countless others in an unforeseen nightmare. Their paths to safety were now beset with obstacles that they could not have anticipated—and for many, those paths led to dead ends, forcing them to restart at square one in seeking a safe refuge for themselves and their families.

This Essay examines a crucial question: What recourse, if any, do these overseas humanitarian migrants have in U.S. courts against an executive branch gone rogue?

When the International Refugee Assistance Project (IRAP) launched its litigation department in 2017 to bring cases to protect these clients, there was limited precedent for this type of litigation and plenty of misconceptions that foreign nationals abroad have no enforceable rights in U.S. courts. After all, the Supreme Court had renounced responsibility for protecting foreign nationals in some of the most infamous cases in its history by invoking the plenary power doctrine—the notion that the political branches have plenary power over the admission of foreign nationals. In The Chinese Exclusion Case, the Court upheld Congress’s exclusion of Chinese laborers, invoking a broad view of “[t]he power of the government to exclude foreigners from the country.” 4Open this footnote Close this footnote 4 See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 606-07, 609 (1889). …Open this footnote Close In United States ex rel. Knauff v. Shaughnessy, the Supreme Court held that the Attorney General could, consistent with a statutory delegation of power, exclude a foreign national without a hearing, even though she was married to a U.S. citizen. 5Open this footnote Close this footnote 5 See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 539, 542-43 (1950). …Open this footnote Close The Court stated that foreign nationals abroad “who seek[] admission to this country may not do so under any claim of right.” 6Open this footnote Close this footnote 6 Id. at 542. …Open this footnote Close A few years later, the Court held that a foreign national who was denied admission into the U.S. at the border and left stranded on Ellis Island for several years because no country would accept him had no statutory or constitutional right against his exclusion. 7Open this footnote Close this footnote 7 See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 207-08, 215 (1953). …Open this footnote Close The Court emphasized that even though a foreign national who has crossed the border into the U.S. has rights, “an alien on the threshold of initial entry stands on a different footing: ‘Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.’” 8Open this footnote Close this footnote 8 See id. at 212 (quoting Knauff, 338 U.S. at 544). …Open this footnote Close

But those cases, critically, addressed only the authority of Congress or of the executive acting consistently with the powers delegated to it by Congress. The plenary power doctrine does not grant executive agencies carte blanche to flout Congress in implementing programs intended to benefit specific populations of migrants—as the Trump Administration has done repeatedly.

This Essay describes the paths available in U.S. courts for enforcing the rights of overseas humanitarian migrants, drawing on lessons learned from four cases filed by IRAP: Jewish Family Service of Seattle (JFS) v. Trump, which challenges the Administration’s most recent ban on refugees; 9Open this footnote Close this footnote 9 JFS Complaint, supra note 2, ¶¶ 5, 196, 199-202. …Open this footnote Close Doe v. Nielsen, which challenges the denial of refugee status “as a matter of discretion” to Iranian religious minorities; 10Open this footnote Close this footnote 10 Complaint for Declaratory, Injunctive, and Mandamus Relief ¶ 1, Doe v. Nielsen, No.18-2349 (N.D. Cal. Apr. 18, 2018) [hereinafter Doe v. Nielsen Complaint]. …Open this footnote Close S.A. v. Trump, which challenges the termination of the Central American Minors parole program; 11Open this footnote Close this footnote 11 S.A. Complaint, supra note 3, ¶¶ 128-50. …Open this footnote Close and Afghan & Iraqi Allies Under Serious Threat Because of Their Faithful Service to the United States v. Pompeo, which challenges the delay in processing Special Immigrant Visas for Afghans and Iraqis who worked on behalf of the U.S. 12Open this footnote Close this footnote 12 Class Action Complaint ¶¶ 1, 68-92, Afghan & Iraqi Allies Under Serious Threat Because of Their Faithful Service to the U.S. v. Pompeo, No. 18-1388 (D.D.C. June 12, 2018) [hereinafter Afghan & Iraqi Allies Complaint]. …Open this footnote Close The Essay first summarizes the four cases and the humanitarian migration programs involved in them. It then disentangles the confusion that often exists when analyzing standing, reviewability, and claims available to foreign nationals abroad. By examining these issues separately, it becomes clear that, despite the plenary power doctrine, U.S. courts have an important role to play in protecting overseas humanitarian migrants.

I. Four Cases Protecting the Rights of Overseas Humitarian Migrants

Congress created several humanitarian migration pathways within the Immigration and Nationality Act (INA) 13Open this footnote Close this footnote 13 Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of the U.S. Code). …Open this footnote Close that embody the American commitment to helping those in need. These pathways, though limited, permit foreign nationals facing life-threatening danger in their home countries the opportunity to apply for admission to the U.S. and make safe and orderly travel arrangements. The four cases below were filed in response to the efforts of the Trump Administration to unilaterally shut down these pathways.

A. JFS v. Trump

JFS v. Trump, consolidated with Doe v. Trump, challenged the latest in the Trump Administration’s efforts to shut down the United States Refugee Admission Program (USRAP), America’s overseas refugee program. 14Open this footnote Close this footnote 14 Doe v. Trump, 288 F. Supp. 3d 1045, 1055, 1057-58 (W.D. Wash. 2017). …Open this footnote Close To qualify as a refugee, a person must show that they are unable to return to their country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 15Open this footnote Close this footnote 15 See 8 U.S.C. § 1101(a)(42) (2017). …Open this footnote Close Through the USRAP, the Secretary of Homeland Security has the discretion to admit any refugee who is not firmly resettled in another foreign country, is determined to be of special humanitarian concern to the U.S., and is admissible, subject to a certain numerical limitation set by the President each fiscal year. 16Open this footnote Close this footnote 16 See id. § 1157(c)(1). …Open this footnote Close

Refugees generally cannot choose to apply for the USRAP—rather, they are referred by the United Nations High Commissioner for Refugees or through several other designated channels. 17Open this footnote Close this footnote 17 See U.S. Citizenship & Immigr. Servs., United States Refugee Admissions Program (USRAP), https://perma.cc/C5UX-JY4X (archived Jan. 29, 2019). …Open this footnote Close Once they enter the USRAP, they must clear a series of processing steps, including interviews, security checks, and medical screening. 18Open this footnote Close this footnote 18 Id.; see also Haeyoun Park & Larry Buchanan, Refugees Entering the U.S. Already Face a Rigorous Vetting Process, N.Y. Times (Jan. 29, 2017), https://perma.cc/YGM6-3TN3. …Open this footnote Close Fewer than 1% of the world’s refugees end up referred, and the USRAP process can take years from referral to resettlement. 19Open this footnote Close this footnote 19 See Park & Buchanan, supra note 18. …Open this footnote Close

After the Trump Administration took office, it issued several successive bans to halt the USRAP. 20Open this footnote Close this footnote 20 See generally Doe v. Trump, 288 F. Supp. 3d 1045, 1055-59 (W.D. Wash. 2017) (summarizing the history of the executive orders as relevant to the litigation). …Open this footnote Close First, within days of taking office, President Trump issued an executive order that, in addition to banning entry of citizens from seven Muslim-majority countries, suspended refugee processing for 120 days while the Administration purported to conduct a review of the USRAP. 21Open this footnote Close this footnote 21 See Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg. 8977, 8978-79 (Jan. 27, 2017), revoked by Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg. 13,209 (Mar. 6, 2017). …Open this footnote Close When that first executive order did not hold up in court, the President withdrew it and replaced it with a second executive order that similarly suspended refugee processing for 120 days during a review period. 22Open this footnote Close this footnote 22 See Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg. at 13,215. …Open this footnote Close Finally, in October 2017, after the period of review initiated by the first two executive orders was over, the President proclaimed that the USRAP could resume except as ordered by the Secretary of Homeland Security and the Secretary of State—and at the same time, those Secretaries, along with the Director of National Intelligence, issued a memorandum that suspended refugee processing from certain unnamed countries for another 90 days pending further review. 23Open this footnote Close this footnote 23 See Doe v. Trump, 288 F. Supp. 3d at 1057-59 (summarizing the Administration’s actions); see also Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities, 82 Fed. Reg. 50,055, 50,056-57 (Oct. 24, 2017) (resuming the USRAP). …Open this footnote Close These unnamed countries were reported to be, for the most part, Muslim-majority countries resembling the banned countries list in the first executive order. 24Open this footnote Close this footnote 24 Ted Hesson, Trump Targets 11 Nations in Refugee Order, Politico (updated Oct. 24, 2017, 11:22 PM EDT), https://perma.cc/VZU6-GD9E ; Yeganeh Torbati & Mica Rosenberg, Under Trump Plan, Refugees from 11 Countries Face Additional U.S. Barriers, Reuters (Oct. 24, 2017, 10:13 AM), https://perma.cc/F4BM-XWPU . …Open this footnote Close The memorandum also suspended the follow-to-join refugee family reunification program under USRAP. 25Open this footnote Close this footnote 25 See Doe v. Trump, 288 F. Supp. 3d at 1058. …Open this footnote Close

In JFS v. Trump and Doe v. Trump, the plaintiffs—a group of refugees abroad, family members and others in the U.S., and organizations that have been awaiting the arrival of refugees—argued that the suspension of the USRAP violated the Administrative Procedure Act (APA) and the Constitution. 26Open this footnote Close this footnote 26 See JFS Complaint, supra note 2, ¶¶ 9, 196-203. …Open this footnote Close A district court in the Western District of Washington issued a preliminary injunction on December 23, 2017, restraining the Trump Administration from enforcing the USRAP suspension, finding it likely unlawful under the APA. 27Open this footnote Close this footnote 27 See Doe v. Trump, 288 F. Supp. 3d at 1076-77, 1086. …Open this footnote Close Notably, the court found the dispute to be reviewable and found that family members and organizations in the U.S. had standing to raise the dispute, despite the government’s objections that the executive has plenary discretion over the refugee program. 28Open this footnote Close this footnote 28 See id. at 1063-72, 1068 n.13. …Open this footnote Close

B. Doe v. Nielsen

Doe v. Nielsen challenged the denial of refugee status to a group of Iranian religious minorities who had been invited by the U.S. government to abandon their homes in Iran and travel to Vienna, Austria, to complete processing of their refugee applications under the Lautenberg and Specter Amendments. 29Open this footnote Close this footnote 29 See Doe v. Nielsen Complaint, supra note 10, ¶¶ 1-4. …Open this footnote Close The Lautenberg Amendment, as amended by the Specter Amendment in 2004, affords special protections to Iranian religious minorities in recognition of the Iranian government’s severe violations of religious freedom. 30Open this footnote Close this footnote 30 See Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, div. E, tit. II, § 213, 118 Stat. 3, 253 (codified at 8 U.S.C. § 1157 note (2017)); see generally Andorra Bruno, Cong. Research Serv., RL31269, Refugee Admissions and Resettlement Policy 9-10 (2018) (discussing the legislative history of the Lautenberg and Specter Amendments). …Open this footnote Close It lowers the evidentiary burden for establishing refugee status and requires that any denial of refugee status be explained “to the maximum extent feasible.” 31Open this footnote Close this footnote 31 See 8 U.S.C. § 1157 note. …Open this footnote Close

The refugee program for Iranian religious minorities had operated successfully for years, with nearly a 100% admission rate. 32Open this footnote Close this footnote 32 See Nina Shea, America Shouldn’t Send Endangered Religious Minority Refugees Back to Iran, Hudson Inst. (Mar. 14, 2018), https://perma.cc/2XTG-6Q87. …Open this footnote Close Nevertheless, in February 2018, nearly ninety Iranian religious minorities who were already in Vienna on their way to the U.S. were issued denials, many of them identical form denials rejecting their refugee applications “as a matter of discretion,” with no further explanation. 33Open this footnote Close this footnote 33 See id.; see also Doe v. Nielsen, No. 18-2349, slip op. at 6, 12-13 (N.D. Cal. July 10, 2018) (finding purported class members to be ascertainable and sufficiently numerous for class certification on the basis that at least thirty-eight, and as many as eighty-seven, refugee applicants received identical denials). …Open this footnote Close

In Doe v. Nielsen, the refugee plaintiffs in Vienna and their U.S. family members who sponsored and paid for their applications challenged these denials, arguing that they lacked the explanation required by the Lautenberg Amendment and were based on arbitrary and capricious changes to the Lautenberg program. 34Open this footnote Close this footnote 34 See Doe v. Nielsen Complaint, supra note 10, ¶¶ 5-9, 81-84, 95-96. …Open this footnote Close Plaintiffs won class certification and partial summary judgment on July 10, 2018, with the court holding that both the Lautenberg Amendment and the defendants’ own regulations required more of an explanation to deny the Lautenberg applications than simply stating the denials were “a matter of discretion.” 35Open this footnote Close this footnote 35 See Doe v. Nielsen, slip op. at 1. …Open this footnote Close The court found standing for both the refugees in Vienna and their family members in the U.S. It also found the dispute reviewable despite the government’s argument that no aspect of refugee processing, and thus no aspect of the case, was judicially reviewable. 36Open this footnote Close this footnote 36 See id. at 22-25, 33-34. …Open this footnote Close

C. Afghan and Iraqi Allies v. Pompeo

Afghan and Iraqi Allies v. Pompeo challenged the delay in processing of Special Immigrant Visas (SIVs) for Afghans and Iraqis who provided “faithful and valuable” service to the U.S., often as employees of government contractors, and whose lives are now in danger in their home countries because of that service. 37Open this footnote Close this footnote 37 See Afghan & Iraqi Allies Complaint, supra note 12, ¶ 1. …Open this footnote Close Afghans and Iraqis who qualify can apply for the SIVs and follow a multistep process created by the Department of State for processing. If they clear all of the steps, they can finally travel to the U.S. 38Open this footnote Close this footnote 38 See Special Immigrant Visas for Afghans—Who Were Employed by/on Behalf of the U.S. Government, U.S. Dep’t St.—Bureau Consular Aff., https://perma.cc/2EJ2-2B8D (archived Jan. 29, 2019); Special Immigrant Visas for Iraqis – Who Were Employed by/on Behalf of the U.S. Government, U.S. Dep’t St.—Bureau Consular Aff., https://perma.cc/K8NY-E24G (archived Jan. 29, 2019). …Open this footnote Close To ensure that processing occurs quickly and efficiently given the situation that the visa applicants live in, Congress specified that the Department of State and the Department of Homeland Security must “improve the efficiency by which applications for [SIVs] . . . are processed so that all steps under the control of the respective departments . . . should be completed not later than 9 months” after the date on which an applicant submits an application and accompanying materials for such visa application. 39Open this footnote Close this footnote 39 See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, §§ 1218-19, 127 Stat. 672, 910, 913-14 (2013) (codified at 8 U.S.C. § 1101 note) (emphasis added). …Open this footnote Close

Despite this clear congressional language, processing of SIVs has lagged far longer than nine months. 40Open this footnote Close this footnote 40 See Afghan & Iraqi Allies Complaint, supra note 12, ¶¶ 44-48 (citing and explaining the processing times presented by the Administration in Dep’t of State & Dep’t of Homeland Sec., Joint Department of State/Department of Homeland Security Report: Status of the Afghan Special Immigrant Visa Program (Jan. 2018), https://perma.cc/6AG4-RV4T ; and Dep’t of State & Dep’t of Homeland Sec., Joint Department of State/Department of Homeland Security Report: Status of the Iraqi Special Immigrant Visa Program (Jan. 2018), https://perma.cc/QGS3-S2N7). …Open this footnote Close In 2015, IRAP filed Nine Iraqi Allies Under Serious Threat Because of Their Faithful Service to the United States v. Kerry on behalf of individual plaintiffs whose applications had been in government hands for well over nine months. 41Open this footnote Close this footnote 41 See Complaint for Writ of Mandamus and for Order Compelling Agency Action Unreasonably Delayed ¶¶ 1-7, Nine Iraqi Allies Under Serious Threat Because of Their Faithful Service to the U.S. v. Kerry, No. 15-0300 (D.D.C. Feb. 27, 2015). …Open this footnote Close The court ruled that plaintiffs had standing and stated a justiciable claim of unreasonable delay, prompting the defendants to settle. 42Open this footnote Close this footnote 42 See Nine Iraqi Allies Under Serious Threat Because of Their Faithful Service to the U.S. v. Kerry, 168 F. Supp. 3d 268, 280-82, 292, 295, 298 (D.D.C. 2016). …Open this footnote Close Afghan & Iraqi Allies v. Pompeo was filed as a follow up to Nine Iraqi Allies, as a class action on behalf of all Afghan and Iraqi applicants whose SIV applications have been pending with the U.S. government for over nine months. 43Open this footnote Close this footnote 43 See Afghan & Iraqi Allies Complaint, supra note 12, ¶¶ 1-12. …Open this footnote Close On January 30, 2019, the Afghan & Iraqi Allies v. Pompeo court followed Nine Iraqi Allies and held that plaintiffs have standing to raise the unreasonable delay claims in the case. 44Open this footnote Close this footnote 44 Afghan & Iraqi Allies Under Serious Threat Because of Their Faithful Service to the U.S. v. Pompeo, No. 18-1388, 2019 WL 367841, at *7-10 (D.D.C. Jan. 30, 2019). …Open this footnote Close

D. S.A. v. Trump

S.A. challenged the termination of the Central American Minors (CAM) parole program. 45Open this footnote Close this footnote 45 See S.A. Complaint, supra note 3, ¶ 1. …Open this footnote Close The Secretary of Homeland Security has case-by-case discretion to parole in foreign nationals for “urgent humanitarian reasons” or “significant public benefit.” 46Open this footnote Close this footnote 46 See 8 U.S.C. § 1182(d)(5)(A) (2017). Section 1182(d)(5)(A) refers to the Attorney General; authority was later transferred to the Secretary of Homeland Security. See S.A. v. Trump, No. 18-3539, 2018 WL 6470253, at *3 n.4 (N.D. Cal. Dec. 10, 2018). …Open this footnote Close Parole permits temporary lawful presence in the U.S., though unlike refugee status it does not offer a path to permanent immigration status. 47Open this footnote Close this footnote 47 In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central American Minors – CAM), U.S. Citizenship & Immigr. Servs. (Aug. 6, 2017), https://perma.cc/7TCS-Y5R4 (accessed by searching for “https://www.uscis.gov/CAM” in the Internet Archive Wayback Machine). …Open this footnote Close In response to humanitarian crises in the past, the U.S. government set up dual refugee-parole programs, in which individuals who could not meet the strict definition of a refugee under the INA but who merit humanitarian assistance could be admitted to the U.S. as parolees. 48Open this footnote Close this footnote 48 Citizenship & Immigration Servs. Ombudsman, Recommendation on the Central American Minors (CAM) Refugee/Parole Program 13-14 (2016), https://perma.cc/SKY7-SY6Y . …Open this footnote Close

The CAM parole program was one example of a program set up in this way. It addressed the crisis of young children fleeing the violence of the Northern Triangle countries of Honduras, Guatemala, and El Salvador and arriving at the southern border. Under this program, parents already legally present in the U.S. with children in a Northern Triangle country could request refugee status for their children. If the children were found ineligible for refugee status, they would then be considered for parole so that they and any other eligible family members could travel safely to the U.S. 49Open this footnote Close this footnote 49 Central American Minors (CAM) Program, U.S. Dep’t St. (Aug. 6, 2017), https://perma.cc/5TN3-EU75 (accessed by searching for “https://www.state.gov/j/prm/ra/cam/index.htm” in the Internet Archive Wayback Machine); In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central American Minors – CAM), U.S. Citizenship & Immigr. Servs. (Aug. 6, 2017), https://perma.cc/7TCS-Y5R4 (accessed by searching for “https://www.uscis.gov/CAM” in the Internet Archive Wayback Machine). …Open this footnote Close

Soon after taking office, however, the Trump Administration shut down processing of CAM parole, but without so much as informing anyone of the suspension. 50Open this footnote Close this footnote 50 See S.A. Complaint, supra note 3, ¶ 48 (describing internal Trump Administration emails cancelling CAM interviews prior to formal suspension of CAM parole program). …Open this footnote Close Then, in August 2017, the Secretary of Homeland Security terminated parole without any explanation for its termination, including for people who had already been conditionally approved for parole and could travel to the U.S. so long as they passed medical checks, security checks, and purchased a flight ticket. 51Open this footnote Close this footnote 51 See Termination of the Central American Minors Parole Program, 82 Fed. Reg. 38,926, 38,927 (Aug. 16, 2017). …Open this footnote Close

In S.A. v. Trump, plaintiffs—the children in the Northern Triangle countries, their parents in the U.S., and an organization that helped many parents file the applications—challenged the termination of the parole program under the APA and the Constitution. 52Open this footnote Close this footnote 52 See S.A. Complaint, supra note 3, ¶¶ 7-14. …Open this footnote Close On December 10, 2018, the court found standing based on harm to the parents living in the U.S. and proceeded to review the claims. The court applied a standard APA analysis, holding that the government acted arbitrarily and capriciously in terminating the program for the children who were conditionally approved for parole. 53Open this footnote Close this footnote 53 See S.A. v. Trump, No. 18-3539, 2018 WL 6470253, at *20-22, *33 (N.D. Cal. Dec. 10, 2018). …Open this footnote Close

II. Strategies for Bringing Refugee Litigation

Litigation in the four cases described above illustrates that, despite the plenary power doctrine, overseas humanitarian migrants can seek some form of protection from U.S. courts. 54Open this footnote Close this footnote 54 Although beyond the scope of this Essay, these challenges can also be brought, as many were, by persons in the U.S.—either by individuals who were counting on the humanitarian migration program to help them reunite with their family members in danger abroad or by U.S.-based organizations. The refugees and other persons being assisted through these migration programs are often no strangers to the U.S.; they are mothers and daughters of U.S. citizens, brothers and sisters of permanent residents, or clients of U.S. organizations. Assault on a U.S. humanitarian migration program does not just result in consequences felt abroad, but in concrete damage, emotional and economic, here in the United States. See, e.g., Doe v. Trump, 288 F. Supp. 3d 1045, 1063-67 (W.D. Wash. 2017) (finding standing both for parents of children abroad and for organizations devoted to resettling refugees). …Open this footnote Close In each of the four cases above, plaintiffs were not asking the courts to adjudicate their right to be admitted in the U.S. but to prevent the executive from distorting and destroying the process that existed for their admission. In explaining why these legal challenges avoid the hurdles of the plenary power doctrine, it is helpful to disentangle standing, reviewability, and the availability of claims.

A. Standing

As an initial matter, the plenary power doctrine does not undermine the Article III standing of foreign nationals abroad who experience harm. In fact, in a case involving a foreign corporation at the turn of the last century, the Supreme Court proclaimed that foreign nationals, “by the policy and practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and the protection of their rights.” 55Open this footnote Close this footnote 55 See Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 578 (1908). …Open this footnote Close

This norm of court access also applies to overseas humanitarian migrants. 56Open this footnote Close this footnote 56 See, e.g., Cardenas v. Smith, 733 F.2d 909, 913 (D.C. Cir. 1984) (“For purposes of Article III standing, Cardenas’ status as a nonresident alien does not obviate the existence of her injury; it is the injury and not the party that determines Article III standing.”); Silva v. Bell, 605 F.2d 978, 984-85 (7th Cir. 1979) (holding that analysis of injury for standing purposes is not affected by nonresidence in the country and granting standing for noncitizen plaintiffs outside the country despite prudential concerns). …Open this footnote Close To gain that access, they, like all plaintiffs, must satisfy the same standard of showing a personal stake in the legal challenge: an injury in fact that is traceable to the challenged conduct and that can be redressed by a favorable decision. 57Open this footnote Close this footnote 57 See Cardenas, 733 F.2d at 912-13. …Open this footnote Close Humanitarian migrants whose lives are upended by executive action can readily meet this standard: They have lost an avenue that they had to escape violence and persecution and that would, for many, lead to a reunion with their families. 58Open this footnote Close this footnote 58 See Doe v. Trump, 288 F. Supp. 3d at 1063-64 (holding that prolonged family separation is a cognizable harm for Article III purposes). …Open this footnote Close Even where the benefit—the final decision on whether they will be permitted to travel to the U.S. as a refugee, a parolee, or a visa recipient—is discretionary, this opportunity loss is in itself a concrete harm that courts recognize for Article III purposes. 59Open this footnote Close this footnote 59 See, e.g., Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998) (holding that the lost opportunity to receive an immigrant visa is a cognizable Article III injury), superseded on other grounds by statute, Pub. L. No. 104-208, 110 Stat. 3009 (1996), as recognized in Brown v. Holder, 763 F. 3d 1141, 1148 (2014); Nat’l Venture Capital Ass’n v. Duke, 291 F. Supp. 3d 5, 13-15 (D.D.C. 2017) (recognizing injury from foreign parties’ loss of opportunity to obtain parole status, although parole itself is discretionary). …Open this footnote Close

B. Reviewability

Whereas the plenary power doctrine does not affect Article III standing, it does affect the separate inquiry of judicial reviewability because the crux of the plenary power doctrine is limited review of the executive’s exercise of discretionary authority in the realm of immigration. 60Open this footnote Close this footnote 60 United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 539, 542-43 (1950). …Open this footnote Close Thus, for example, consular nonreviewability, a species of nonreviewability articulated through circuit court law (though never adopted by the Supreme Court), holds that a consular officer’s decision to grant or deny a visa is not judicially reviewable because of the discretion the law gives to officers to make that determination. 61Open this footnote Close this footnote 61 See, e.g., Saavedra Bruno v. Albright, 197 F.3d 1153, 1164 (D.C. Cir. 1999) (applying doctrine of consular nonreviewability to conclude federal district court did not have authority to review denial of visa for foreign national); Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986) (same). The Supreme Court also did not reach the reviewability question in Trump v. Hawaii, as it assumed, without deciding, that the dispute was reviewable. See 138 S. Ct. 2392, 2407 (2018). …Open this footnote Close Although consular nonreviewability itself does not apply to decisions that are made by government officials other than consular officials (such as refugee determinations), courts have considered discretionary decisions on the admission of each refugee to also fall under the broader umbrella of nonreviewability. 62Open this footnote Close this footnote 62 See, e.g., Doe v. Nielsen, No. 18-2349, slip op. at 24 (N.D. Cal. July 10, 2018) (noting in dictum that the court “lack[ed] authority to review the ultimate decision to grant or deny refugee applications”). …Open this footnote Close

However, even accepting this application of nonreviewability, 63Open this footnote Close this footnote 63 There are reasons to question the continued applicability of the plenary power doctrine and nonreviewability principle, but those critiques are beyond the scope of this Essay. …Open this footnote Close the principle does not give the executive free rein to do what it wants in all aspects of managing humanitarian migration programs. 64Open this footnote Close this footnote 64 In addition to the exceptions listed below, courts have permitted limited review of admission decisions despite consular nonreviewability “when ‘a U.S. citizen’s constitutional rights are alleged to have been violated by the denial of a visa to a foreigner’ without a ‘facially legitimate and bona fide reason’ for the denial.” Rivas v. Napolitano, 714 F.3d 1108, 1110 (9th Cir. 2013) (quoting Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008)); see also Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring in the judgment) (reiterating that “an executive officer’s decision denying a visa that burdens a citizen’s own constitutional rights is valid when it is made ‘on the basis of a facially legitimate and bona fide reason’” (emphasis added) (quoting Kleindienst v. Mandel, 408 U.S. 753, 770 (1972))). …Open this footnote Close The historical cases most often cited for the plenary power doctrine spoke only of nonreviewability of executive decisions to admit or exclude a foreign national where Congress authorized the executive to exercise that power. 65Open this footnote Close this footnote 65 See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950). …Open this footnote Close Courts have thus recognized at least two circumstances where nonreviewability does not apply.

First, plaintiffs can challenge immigration policies promulgated and executed by the President and his agencies. This is because such cases challenge overarching agency policy rather than nonreviewable individual admission decisions. 66Open this footnote Close this footnote 66 See Hawaii v. Trump, 878 F.3d 662, 680 (9th Cir. 2017) (holding that consular nonreviewability “shields from judicial review only the enforcement ‘through executive officers’ of Congress’s ‘declared [immigration] policy,’ not the President’s rival attempt to set policy” (alteration in original) (internal citation omitted) (quoting Sing v. United States, 158 U.S. 538, 547 (1895))), rev’d on other grounds, 138 S. Ct. 2392 (2018); see also Mulligan v. Schultz, 848 F.2d 655, 657 (5th Cir. 1988) (rejecting application of consular nonreviewability where the challenge was to the authority of the Secretary of State to set rules regarding registration dates); Int’l Union of Bricklayers v. Meese, 761 F.2d 798, 801 (D.C. Cir. 1985) (rejecting application of consular nonreviewability and holding that “[t]he federal courts have jurisdiction . . . to assure that the executive departments abide by the legislatively mandated procedures”). …Open this footnote Close The challenge to the Trump Administration’s successive bans on the admission of foreign nationals from several majority-Muslim countries and the challenge to the most recent refugee ban in JFS were reviewable because they were challenges to overarching executive policy. 67Open this footnote Close this footnote 67 See Hawaii v. Trump, 878 F.3d at 679; Doe v. Trump, 288 F. Supp. 3d 1045, 1068 (W.D. Wash. 2017). …Open this footnote Close Plaintiffs argued that the challenge to the CAM parole termination in S.A. was similarly reviewable because it was a programmatic challenge, and the court reviewed the termination without expressing any concerns about reviewability. 68Open this footnote Close this footnote 68 See S.A. v. Trump, No. 18-3539, 2018 WL 6470253, at *21-22, *33 (N.D. Cal. Dec. 10, 2018); Plaintiffs’ Memorandum of Points and Authorities in Opposition to Motion to Dismiss at 9-10, S.A., 2018 WL 6470253 (No. 18-3539). …Open this footnote Close In this context, winning the claim does not result in the remedy of admission, but it does unblock one obstacle to admission.

Second, plaintiffs can challenge “‘the authority of [an executive branch official] to take or fail to take an action as opposed to a decision within [their] discretion.’” 69Open this footnote Close this footnote 69 See Rivas, 714 F.3d at 1110 (quoting Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997)); see also Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010). …Open this footnote Close Even where Congress has granted executive agencies the ultimate discretion to grant or deny admission, it has often required the agencies to make that discretionary decision within a certain framework. For example, in the case of the SIV program for Afghans and Iraqis, Congress specified that the SIV process should be completed in nine months; in Nine Iraqi Allies, the court found that it could review the government’s failure to take the required action. 70Open this footnote Close this footnote 70 See Nine Iraqi Allies Under Serious Threat Because of Their Faithful Service to the U.S. v. Kerry, 168 F. Supp. 3d 268, 290-92 (D.D.C. 2016). …Open this footnote Close Similarly, in Doe v. Nielsen, the court found that it could review the plaintiffs’ claim that the defendants failed to follow the congressional directive in the Lautenberg Amendment that they “[shall,] to the maximum extent feasible, provide the reason for the denial.” 71Open this footnote Close this footnote 71 See Doe v. Nielsen, No. 18-2349, slip op. at 23-25 (N.D. Cal. July 10, 2018) (quoting 8 U.S.C. § 1157 note (2017)). …Open this footnote Close As the court concluded there, “[the Department of Homeland Security] retains an enormous amount of authority and discretion to adjudicate refugee applications, but [it] do[es] not have the discretion to violate the law.” 72Open this footnote Close this footnote 72 See id. at 25. …Open this footnote Close

C. Availability of Claims

Another hurdle to litigating on behalf of foreign nationals abroad is the limitation on the availability of certain claims. With respect to constitutional claims, for example, the Supreme Court has rejected the application of the Fifth Amendment to enemy prisoners held and tried in overseas military tribunals, emphasizing that courts have historically accorded constitutional protections to foreign nationals only when they were present in the territorial jurisdiction of the U.S. 73Open this footnote Close this footnote 73 See Johnson v. Eisentrager, 339 U.S. 763, 777-78, 781 (1950). …Open this footnote Close More recently, the Supreme Court held that the Fourth Amendment right against unreasonable searches and seizures did not apply to a foreign national in Mexico with no voluntary attachment to the U.S. The Court noted that, in previous cases, constitutional rights have been extended only to those who have come within the territory of the U.S. and developed substantial voluntary connections to the country. 74Open this footnote Close this footnote 74 See United States v. Verdugo-Urquidez, 494 U.S. 259, 268-69, 271 (1990). …Open this footnote Close

These limitations, however, do not apply to APA claims. The APA is a statute that was intended to curtail abuse of power by executive agency officials; its provisions balance the need for such officials to exercise discretion in carrying out their duties with the need to protect the rights of parties who are subject to the expanding power of those officials in the modern administrative state. 75Open this footnote Close this footnote 75 See Roni A. Elias, The Legislative History of the Administrative Procedure Act, 27 Fordham Envtl. L. Rev. 207, 224 (2016). …Open this footnote Close The APA contains a strong presumption of judicial review for “[a] person suffering legal wrong because of agency action” or “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 76Open this footnote Close this footnote 76 See Pub. L. No. 79-404, § 10(a), 60 Stat. 237, 243 (1946) (codified as amended at 5 U.S.C. § 702 (2017)). …Open this footnote Close  The term “person” is not limited to U.S. persons, and foreign nationals aggrieved by agency actions, including foreign corporations and organizations, have been permitted to challenge those actions where otherwise appropriate. 77Open this footnote Close this footnote 77 See Constructores Civiles de Centroamerica, S.A. v. Hannah, 459 F.2d 1183, 1190-91 (D.C. Cir. 1972) (noting that APA review is afforded to “any person,” not “any citizen,” and permitting a nonresident Honduran corporation to maintain action against the Agency for International Development); see also FBME Bank Ltd.  v. Lew, 209 F. Supp. 3d 299, 308-10 (D.D.C. 2016) (suit by Tanzanian bank against U.S. Treasury Department). …Open this footnote Close

A foreign national abroad can therefore bring an APA claim so long as they were “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 78Open this footnote Close this footnote 78 See 5 U.S.C. § 702. …Open this footnote Close This context-specific inquiry, which asks whether a plaintiff’s interest fall within the “‘zone of interests protected by the law invoked,’” 79Open this footnote Close this footnote 79 See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388-89 (2014) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). …Open this footnote Close is not “especially demanding” in the context of APA cases. 80Open this footnote Close this footnote 80 See id. at 1389 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012)). …Open this footnote Close Where the APA challenge is brought by a foreign national who has applied for a humanitarian migration benefit available precisely to help people like them—refugees, SIV applicants, and other vulnerable populations that Congress intended to assist—this low bar is readily satisfied. 81Open this footnote Close this footnote 81 See, e.g., Doe v. Nielsen, No. 18-2349, slip op. at 34 (N.D. Cal. July 10, 2018) (“DHS does not dispute that Plaintiffs fall within the Lautenberg Amendment’s ‘zone of interests,’ as the statute explicitly includes Iranian religious minorities as a category of individuals entitled to special protections.”); see also Movimiento Democracia, Inc. v. Johnson, 193 F. Supp. 3d 1353, 1368 (S.D. Fla. 2016) (holding that Cuban migrants seeking to invoke the benefits of the Cuban Adjustment Act are within the zone of interests of that Act). …Open this footnote Close

Although there are barriers to review under the APA for discretionary decisions—similar to the consular nonreviewability principle—these bars do not apply to actions that do not challenge the ultimate decision to deny the discretionary benefit. First, while the APA precludes judicial review of agency action “committed to agency discretion by law,” 82Open this footnote Close this footnote 82 See 5 U.S.C. § 701(a)(2). …Open this footnote Close the Supreme Court has emphasized that this is a “very narrow exception” that applies to rare categories of administrative actions. 83Open this footnote Close this footnote 83 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). …Open this footnote Close Second, while the APA also precludes judicial review if the statute that is being enforced precludes judicial review, the statute at issue in these cases, the INA, is not broadly preclusive. 84Open this footnote Close this footnote 84 See 5 U.S.C. § 701(a)(1). …Open this footnote Close The INA precludes review of decisions “specified . . . to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 85Open this footnote Close this footnote 85 See 8 U.S.C. § 1252(a)(2)(B)(ii). …Open this footnote Close Although Congress in numerous instances specified that the ultimate decision to admit or deny immigrants is in the discretion of the Secretary of Homeland Security, it did not extend that grant of discretion to how the Secretary manages and implements the programs created by Congress—as the courts in JFS and Doe v. Nielsen held. 86Open this footnote Close this footnote 86 See Doe v. Trump, 288 F. Supp. 3d 1045, 1071-72 (W.D. Wash. 2017) (holding that the Refugee Act provides the Secretary of Homeland Security with discretion over the outcome of the refugee application but does not grant the Secretary discretion to suspend adjudication of applications); Doe v. Nielsen, No. 18-2349, slip op. at 25 (N.D. Cal. July 10, 2018). …Open this footnote Close

In other words, Congress knows how to say so when it wants to deny judicial review and when it wants such review available. The interaction of the APA and the INA strongly indicates that Congress envisioned a role for the judiciary in ensuring that executive agencies cannot single-handedly destroy migration pathways that Congress created. There have been a limited number of cases up until now to test this principle, 87Open this footnote Close this footnote 87 In Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498, 1506-09 (11th Cir. 1992), the Eleventh Circuit held that Congress intended to preclude judicial review for refugees seeking admission from outside the U.S., citing agency discretion and absence of procedures for judicial review in the Refugee Act. But this analysis flips on its head the well-established APA analysis, which allows judicial review absent a strong indication to the contrary. …Open this footnote Close but the four cases described above establish the emerging consensus that executive agencies do not have the unreviewable discretion to do whatever they want, even in the world of humanitarian migration programs where those agencies enjoy broad discretion.

Conclusion

Separately examining the questions of standing, reviewability, and the availability of claims makes clear that U.S. courts have a role in adjudicating APA cases that challenge arbitrary and discriminatory executive actions that harm overseas humanitarian migrants and undermine processes created by Congress. To be sure, overseas humanitarian migrants have limited rights within the U.S. legal system and no right to be admitted to the country. But at minimum, they have the right to be treated in accordance with the dignity and the process that Congress afforded them. The fundamental notion that the judiciary can act to enforce congressional dictates on the executive makes the U.S. the safe and stable home that refugees and other displaced persons seek: a nation of laws where the executive branch can and will be held accountable.

* Litigation Director, International Refugee Assistance Project (IRAP). Title for affiliation purpose only; this Essay is written in my personal capacity and does not represent the views of IRAP as an organization. I am grateful to my colleagues at IRAP and to our partners for advancing the work described in this Essay.