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Why the Government Cannot Ban All Immigrants from a Certain Country – Article by David Bier

Why the Government Cannot Ban All Immigrants from a Certain Country – Article by David Bier

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The New Renaissance Hat
David Bier
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I previously reviewed the exceptionally poor arguments that the Trump administration used to defend its blanket ban on immigration from seven majority Muslim countries in the State of Washington v. Donald Trump. Now, in its appeal of the district court’s temporary restraining order to the 9th Circuit Court of Appeals, the government has added a new argument in favor of its position that is still fatally flawed. It claims:

The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationality based distinctions in [section 202(a)(1)(A) of the Immigration and Nationality Act (INA)]. But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry [under section 212(f)].

The government was right not to attempt this argument initially. Their argument is that a visa does not entitle the recipient to entry in the United States, but merely to travel to the United States. Therefore, they are free to discriminate at the border. To bolster the argument, INA 101(a)(4) does specifically distinguish between admission and visa issuance.  Essentially, they are defining “visa” in section 202 to include only the visa document that permits travel to the border, but does not grant status in the United States. And status is what grants a person the legal right to reside inside the country.

The problem is that the definition of a “visa” in section 202 includes “status” that grants a right to enter and reside in the United States. The State Department’s regulations define visa in section 202 to mean visa or status and have for as long as the INA has been around. Eligibility for status is either determined by an adjustment of status application for immigrants residing inside the United States or at the border for immigrants entering the United States on an immigrant visa for the first time. It is the act of granting entry that confers legal permanent residency status.

Thus, the government would be violating the prohibition on discrimination in section 202(a)(1)(A) just as much by denying entry as by denying visas. An immigration officer cannot deny entry based on nationality without also discriminating in the issuance of status to an immigrant at a port of entry.

Why “visa” cannot be interpreted narrowly

Not only is this interpretation based on the government’s own longstanding regulations, the interpretation of section 202 that the government offered during appeal would require it to adopt a variety of other positions that are at odds with the statute and regulations.

If “visa” in section 202 was interpreted to mean only the visa document, then adjustments of status applications for persons inside the United States would be exempt from the numerical limitations on visas in that section and in section 203. The clear intent of Congress was to control the number of persons who are entering the United States, not visa documents issued, and so the department has always held this view. Thus, the U.S. attorney in oral arguments before the district court admitted that per-country limits were about allocating how many people the United States allows “to come into the country.”

If the person is determined ineligible to enter, the visa is revoked at this point, and the State Department considers it not to have been issued at all. In other words, the department only counts “status” determinations against the visa caps, despite the fact that the section never mentions status. It is interesting to note on this point that the original version of the Immigration and Nationality Act of 1952 actually had consular officers grant immigrants “status” abroad, which could be revoked at entry if they were deemed ineligible.

Why the government cannot be biased in entry but not in visa issuance

This interpretation does not undermine the distinction between visa issuance and admission in section 101(a)(4) because a determination of inadmissibility under section 212 applies equally to admission at the border as it does to visa issuance abroad. Immigration officers inside the country rely on the same criteria to determine eligibility to enter that consular officials use to determine eligibility for an immigrant visa. A person granted an immigrant visa in an unbiased manner would not be entitled to enter at the border. He would just be entitled to similar unbiased treatment.

This proves that the law forecloses the idea that the government could be unbiased in visa issuance but not in entry. This is also why all presidential proclamations under 212(f) are immediately printed in the State Department’s Foreign Affairs Manual. The manual explains, “Aliens who have engaged in conduct covered by a Presidential Proclamation issued under the authority of section 212(f) may also be inadmissible under other sections of the INA or other statutes. These statutory inadmissibilities are to be considered prior to determining whether a Presidential Proclamation applies.”

The executive order itself admits that the State Department will be enforcing it by suspending visa issuance just as much as the Department of Homeland Security by suspending entry, and indeed, it has suspended visa issuance to nationals of those seven countries.

Another problem for the government’s view is that it implies that Congress intended to create a system in which it required non-discrimination for applicants abroad, but not applicants at ports of entry or inside the United States. Indeed, their argument would free the government to discriminate based on nationality in adjustment of status applications for immigrants who are residing inside the United States right now, even without a presidential determination that they are a “detriment.”

Not only is this plainly absurd, this would create the bizarre result that immigrants adjusting in the United States would have fewer protections against discrimination than immigrant applicants abroad. This leaves the government arguing that immigrants abroad have fewer constitutional rights than immigrants in the United States, while somehow also having more statutory rights.

This obviously cannot have been what Congress intended. In fact, as I have previously explained, Congress debated this very question of whether ending discrimination would allow unvetted individuals to enter the United States from certain countries where information is difficult to obtain. They rejected this argument. No member of Congress in 1965—whether they were for the bill or against it—believed that President Johnson could then have immediately undone their work with a presidential proclamation.

David_BierDavid Bier

David Bier is an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.

This work by Cato Institute is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.

Banning “Assault Weapons” Will Not Save Lives – Article by Corey Iacono

Banning “Assault Weapons” Will Not Save Lives – Article by Corey Iacono

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The New Renaissance HatCorey Iacono
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Last weekend, America regrettably witnessed one of the deadliest mass shootings in the country’s history at a gay nightclub in Orlando, Florida, in which 49 people were murdered and over 50 injured. The atrocity was carried out by a fanatic who pledged allegiance to the Islamic State, using a civilian semi-automatic rifle, the Sig Sauer MCX. (Early reports that it was an AR-15 were mistaken.)

In the wake of this attack, many people have laid the blame on America’s relatively lax gun laws, arguing that so-called “assault weapons” (more appropriately known as semi-automatic rifles) and high-capacity magazines should be banned from civilian use.

They note that many of the deadliest shootings in American history have involved rifles like the AR-15, and they propose that such rifles should be banned to prevent heinous crimes like the Orlando massacre from occurring in the future.

Homicides Dehomogenized

But while it may be true that many mass shootings involved semi-automatic rifles, these events are rare. In fact, the latest data (2014) from the FBI show that all types of rifles were only confirmed to have been used in 248 homicides, down from 351 in 2009. Given the total number of homicides (11,961), rifles were confirmed to have been used in only two percent of murders.

You’re more likely to be stabbed, strangled, or beaten to death with bare hands than killed by someone with a rifle.

It’s impossible to know the true number of murders involving “assault weapons,” because the term is so nebulous, and because the FBI only looks at the categories of rifle, shotgun, and handgun. There are also nearly 2,000 gun murders in which the type of firearm used is unknown. But a rough estimate of 328 homicides with all rifles (extrapolated from rifle’s share of gun murders where the type of weapon is known) is probably close to the truth.

To be very generous to the assault weapon ban argument, let’s assume that all of these 328 murders were done with assault weapons. That would imply that such weapons were involved in less than three percent of all homicides in the United States, at most.

Such deaths are as terrible as any murder, but it is also true that knives, blunt objects, and hands/feet were confirmed to have been used in 1,567, 435, and 660 murders respectively. You are much more likely to be stabbed, strangled, or beaten to death with bare hands than killed by someone with a rifle, and the chances of being killed with an “assault-type rifle” are necessarily lesser still.

Bans Don’t Work

There is also little evidence that these weapons bans have worked in the past. From 1994 to 2004, Congress banned the manufacture, sale, or transfer of a large number of “assault weapons” (including some handguns and high-capacity magazines). An assessment study commissioned by the Department of Justice in 2004 found no evidence that the ban had had any effect on gun violence and concluded that “should it be renewed, the ban’s effects on gun violence are likely to be small at best and perhaps too small for reliable measurement.”

Violent ideologues will not be deterred from their paths of destruction by minor inconveniences.

Research by economist Mark Guis of Quinnipiac University revealed no evidence that either state or federal “assault weapons” bans reduced firearm-homicide rates. Carlisle E. Moody of the College of William and Mary found no evidence that the federal ban on high-capacity magazines had any effect on homicide rates.

Regarding terrorist attacks like the one in Orlando, it’s not clear, even in retrospect, that they would be prevented by more restrictive gun control measures. Stringent gun laws in California and France failed to prevent the recent massacres in San Bernardino and Paris. People driven to violence by ideology will not be easily deterred from their paths of destruction by minor inconveniences; it is simply naïve to believe that smaller magazines or not having a folding stock would have stopped them.

In any event, keeping in mind the horrors that mass shootings entail, “assault weapons” are not even connected to a significant amount of crime in the United States. Even if confiscating and banning them completely erased homicides with committed with them, and the perpetrators didn’t substitute them with other legally available firearms, the effect on homicide rates would be statistically very small.

Many Americans simply don’t believe that some of the most popular rifles in America (overwhelmingly owned for legal and peaceful reasons) should be banned or that tens of millions of Americans’ rights should be infringed upon for so little to show for it. If you care about violence in America, you shouldn’t waste your time on the red herring of “assault weapons.”


Corey Iacono

Corey Iacono is a student at the University of Rhode Island majoring in pharmaceutical science and minoring in economics. He is a Foundation for Economic Education (FEE) 2016 Thorpe Fellow.

This article was originally published on FEE.org. Read the original article.

Mr. Stolyarov Quoted in Heartlander Magazine Article on Hawaii’s Plastic-Bag Ban

Mr. Stolyarov Quoted in Heartlander Magazine Article on Hawaii’s Plastic-Bag Ban

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G. Stolyarov II
July 4, 2012
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I have again been quoted in Heartlander Magazine, this time in “Aloha! Leave Your Plastic Grocery Bags at Home” by Kenneth Artz. I encourage you to read my comments there. Here are some of my further thoughts on this subject.

The recent banning of plastic bags in Los Angeles and Hawaii is a gross infringement on individual rights and free enterprise. Entirely harmless and consensual exchanges between stores and their customers are being prohibited, and in Los Angeles customers are being forced by the local government to pay for paper bags that stores would have preferred to give for free. This is a frightening infringement on consumer sovereignty, as it makes artificially scarce those goods which businesses would have preferred to make abundant and accessible for consumers’ benefit.

Freely available plastic and paper bags offer a superb convenience to consumers who may be making unplanned shopping trips – perhaps as a result of emergency needs.  Furthermore, store-provided bags are helpful even to consumers who have brought their own bags – just in case those consumers purchase more items than would fit into the bags they brought. The governments in Hawaii and Los Angeles are forcing such consumers to pay an extra fee because of their unforeseen, and sometimes very personal, needs. The ban and fee are hardest on the least economically advantaged consumers, for whom every penny counts. The inconvenience of the ban and the cumulative cost of the paper-bag fees can make the difference between financial sustainability and severe strain on personal and family budgets.

As my comments in the article make clear, the ban is also repugnant from the standpoint of morality and limited government. The only morally praiseworthy acts of environmental responsibility are those initiated and voluntarily sustained by private individuals and businesses.

This tax on convenience is an unacceptable exercise of arbitrary power. If a government can arrogate to itself the power to prevent mutually beneficial arrangements such as the free availability of plastic and paper bags – then what can it not do? What kinds of petty micromanagement are off limits to cities and counties? What room is left for creativity and innovation among individuals and businesses if the smallest things in life are subject to crippling prohibitions and controls?