united-states immigration travel
Does Trump&#39;s Sept. 2017 travel ban violate the 1965 immigration act?
<p>Most media coverage of the legality of the Trump travel bans has centered on whether they violate the constitutional separation of church and state.</p>

<p>However, David Bier of the Cato Institute <a href="https://www.nytimes.com/2017/01/27/opinion/trumps-immigration-ban-is-illegal.html" rel="nofollow noreferrer">has argued</a> the relevance of the following USC clause (originating with the 1965 immigration law):</p>

<blockquote>
  <p>...no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.</p>
</blockquote>

<p>This clause seems to state that a blanket immigrant/refugee ban on any country would be illegal.</p>

<p>Has this argument been employed in any of the travel ban-related legal proceedings so far? If not, why not?</p>

<p>Edit (June 2018): How does the recent supreme court ruling deal with this issue?</p>

<p>In <em>Trump</em> v. <em>Hawaii</em>, the Supreme Court majority concluded that <a href="https://www.law.cornell.edu/uscode/text/8/1152" rel="nofollow noreferrer">8 USC §1152(a)(1)(A)</a>, which you quoted, does not apply here, because the ban is on <em>admission</em>, not <em>visa issuance</em>.  From page 22 of <a href="https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf" rel="nofollow noreferrer">the decision</a>:</p>

<blockquote>
  <p>The distinction between admissibility—to which §1152(a)(1)(A) does
  not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that
  its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry. Had
  Congress instead intended in §1152(a)(1)(A) to constrain
  the President’s power to determine who may enter the
  country, it could easily have chosen language directed to
  that end.</p>
</blockquote>

<p>So the government may not discriminate when issuing immigrant visas.  However, a visa does not guarantee entry to the US, and according to the majority, the government <em>may</em> discriminate in determining who actually gets to enter.</p>

<p>Moreover, much of the forbidden travel would have taken place on <em>non-immigrant</em> visas in any case (e.g. business, tourism, students, temporary work visas including H-1B), and the Court argued that this clause applies <em>only</em> to immigrant visas.  You can see a list of immigrant and non-immigrant visa types <a href="https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-categories.html" rel="nofollow noreferrer">here</a>.  Page 21 of the decision:</p>

<blockquote>
  <p>As an initial matter, this argument challenges only the
  validity of the entry restrictions on immigrant travel.
  Section 1152(a)(1)(A) is expressly limited to the issuance
  of “immigrant visa[s]” while §1182(f ) allows the President to suspend entry of “immigrants or nonimmigrants.”
  At a minimum, then, plaintiffs’ reading would not affect
  any of the limitations on nonimmigrant travel in the
  Proclamation.</p>
</blockquote>

<p>The dissents don't mention this statute.  However, they do seem to take the view that discrimination in admission simply violates the First Amendment.</p>
