A Scrivener’s Error That Swallows the New Entry Suspensions?

One provision of the President’s new Proclamation (a/k/a “Entry Ban No. 3”) has confused me since I reported on it here earlier this week.

As I explained in my post Sunday evening, Section 2 of the Proclamation suspends certain categories of entry into the United States of (some or all of) the nationals of eight countries.  Section 3(a), in turn, defines the “scope” of Section 2 to exclude certain persons from Section 2’s entry suspensions–such as those who are already in the United States, or those who have a valid VISA, as of October 18, the effective date of Section 2.  Those persons will not be subject to the suspensions.  To similar effect, Section 3(b) sets out six enumerated “exceptions” to the Section 2 suspensions.  Most of the Section 3(b) exceptions are self-explanatory, such as persons who are granted asylum or persons traveling on a diplomatic visa.  (I enumerate all of the scope-exemptions and exceptions toward the end of my earlier post.)

One of the Section 3(b) exceptions, however, has me puzzled:

Section 3(b)(ii) provides that “[t]he suspension of entry pursuant to section 2 of this proclamation shall not apply to . . . any foreign national who is admitted to or paroled into the United States on or after the applicable effective date under section 7 of this proclamation [i.e., October 18].”

The prong of this exception for a foreign national “paroled into the United States” is understandable:  It preserves the discretion of the Secretary of DHS to allow any alien “into the United States temporarily under such conditions as he may prescribe,” on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. 1182(d)(5)(A).  The “admitted to . . .  United States” prong, on the other hand, is less explicable.  Read literally, it appears to provide that if the government, after October 18, “admits” a national of, say, Syria, to the United States–even as, say, an “immigrant” who can obtain lawful permanent resident (LPR) status once inside the U.S.–then the suspension of entry of Syrian nationals in Section 2(e) of the Proclamation does not apply to that person.

If that is the correct reading, however, then this “exception” would swallow the rule, and render the whole Proclamation meaningless:  There would not, in fact, be any prohibitions on entry, because the agencies would be authorized simply to “admit” all of the covered persons, without condition.*

I’ve run this quandary by many immigration experts and scholars, and none has offered any plausible explanation for the “admitted to the U.S.” prong of the Section 3(b)(ii) exception.  Some observers told me they had assumed the exception is intended to refer to foreign nationals admitted to the U.S. before October 18.  (This also appears to be Russell Spivak’s assumption over on Lawfarein describing the Section 3(b)(ii) exception, Spivak refers to a “Foreign national who is admitted to or paroled into the United States by the effective date.”)  If that’s what the 3(b)(ii) exception were designed to accomplish–which seems plausible–it would have made some sense.  In that case, however, the President used precisely the wrong term to accomplish his objective:  he should have written “before the applicable effective date” rather than using the phrase “on or after the applicable effective date.”

Odds are that I’m missing, or misunderstanding, something.  (Readers–any ideas?)  Either that or it’s a simple drafting error that the President should correct, assuming he wants his Proclamation to have any legal effect.  For now, though, it’s a mystery to me.

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* If, on the other hand, the reference in Section 3(b)(ii) is intended to be limited to persons who are admitted pursuant to one of the other exceptions in the Proclamation, including individualized waivers, then the “admitted to” exception in Section 3(b)(ii) would be superfluous. 

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Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).