US Visa Ban On Some Nigerian Politicians: Any Basis For Legal Challenge?

By Eddie Onyeka

On June 26, 2018, the United States Supreme Court, in the
landmark split decision of 5-4 (TRUMP V. Hawaii) vacated the
preliminary injunction issued by a U.S District Court and affirmed
by the Court of Appeal preventing the Presidential Proclamation
(pp) 9645 otherwise known as Trump Visa Ban from coming into
effect.

The Supreme Court held that the P.P 9645, which suspended the
entry of citizens from several countries did not violate the
Constitution or the Immigration and Nationality Act (INA). The
court held that substantial deference must be accorded to the
Executive in the conduct of foreign affairs and the exclusion of
non-citizens.

This writer is not seized of the US Executive Proclamation
placing visa ban on certain Nigerians accused to “have operated
with impunity at the expense of the Nigerian people and undermined
democratic principles and human rights”. However right thinking
Nigerians welcome this intervention as the irreducible minimum and
are in expectation that other Western Countries would replicate
same and do more.

As a matter of policy and confidentiality, the United States
government is unlikely to publish the names of the persons
affected. It is expected that the Department of State would contact
affected persons who hold subsisting visas to notify them that the
visas have been revoked and no longer valid for visit to the US. It
is also possible for such individuals if not contacted in Nigeria
to learn about their situation the hard way upon arrival in the US
and consequent denial of entry and cancellation of visas. For those
without running visas, they are likely to know their fate at the
time of visa interview at the Consulate General in Lagos or Embassy
in Abuja. We believe that non-publication of the names is strategic
because of the controversy it would generate if put in the public
domain if some perceived and key violators are not included.

The Immigration and Nationality Act of the United State,
particularly Section 212 gave wide powers to the Executive to deny
or revoke visas or deny entry to non- citizens in a wide range of
grounds including health, criminal convicts, violators of religious
freedom, human trafficking, drugs trafficking, money laundering,
terrorist activities, security and related grounds, foreign policy
grounds, torture or extrajudicial killings, recruitment or use of
child soldiers, public charge, labor related grounds,
misrepresentation, smugglers, stowaways.

It cannot be questioned that a country has the sovereign
prerogative to regulate the entry of non-nationals into its
territory. It is concomitant to the concept of sovereignty for a
country, in the conduct of its foreign affairs and diplomacy to
declare any class or group of persons as persona non grata and to
prohibit their entering or remaining in the country.

It is however important to stress the need to ensure that the
list is properly targeted and that the innocent is not punished. It
needs to be noted that much as the executive latitude is wide, it
has no legal authority to act in an arbitrary manner or entirely
outside the law.

This is why the US Federal Government have been sued and
restrained by courts in some instances on immigration matters
especially since the Trump presidency. This is also the reason why
president Trump has remained exasperated at the inability of
Congress to come together in a bi-partisan way to consider and pass
comprehensive immigration reforms that would give even more
leverage to the Executive.

It is a fact that one of the cardinal principles of the United
States foreign policy is the promotion of democracy and human
rights to other countries. The officially stated goals of the
foreign policy of the United States as found in the Foreign Policy
Agenda of the Department of State are “ to build and sustain a more
democratic, secure and prosperous world for the benefit of the
American people and the international community”.

Immigration control, including visa ban/restriction is one of
the tools that drive US foreign policy. The US Immigration and
Nationality Act recognize foreign policy consideration as a ground
of ineligibility for visa or inadmissibility into the United
States. Therefore the undermining of democratic processes in
Nigeria through election rigging, vote buying, voter intimidation,
violence, thuggery, banditory, extrajudicial killings, abuse of
power/office, bribery and corruption and such other crimes of moral
turpitude directly offend US foreign policy against which
appropriate legal sanctions, including visa ban are invocable. In
the very words of one of the sub-paragraphs of section 212 of the
Immigration and Nationality Act (INA), “an alien whose entry or
proposed activities in the United States the Secretary of State has
reasonable ground to believe would have potentially serious adverse
foreign policy consequences for the United States is inadmissible”.
One would argue that having regard to the wide discretionary
latitude allowed to the Executive by the United States Supreme
Court in the administration of Immigration Policy, the Secretary of
State can conveniently box the affected election violators into
this sub-paragraph.

The last general elections in Nigeria were perhaps the greatest
official perfidy ever. Promoters and beneficiaries of this
pernicious heist of the peoples mandate would certainly get away if
left to the weak, compromised and often conspiratorial local
institutions. It is our view that a more collaborative and
multilateral measures is required if the idea behind the ban is to
be impactful.

It is to us, a pleasant surprise that the administration of
President Trump would find time and interest to interlope in the
Nigeria election given the transactional nature of the President
and his America First Policy which offers serious disincentive for
interventions that are not clearly and directly beneficial to the
United States. It is curious that similar treatment has not applied
to other democratic and human right violators around the world
including those in China, Russia and Saudi Arabia. It is also a
matter of irony that whereas sanctions are recommended against
Nigerians found to have undermined our democracy, the Trump
administration continues to hob-nob with Russia even in the face of
damming evidence that Russia interfered and undermined the US
elections and have continued to do so.

It is our view that persons undeservedly placed on the list can
explore appropriate options to seek redress. One of such would be a
Request for Reconsideration directed to the Attorney General. A
petitioner who is able to establish his innocence to the reasonable
satisfaction of the Attorney General has a chance to be removed
from the list. The US Department of Justice has a division known as
the Executive Office for Immigration Review (EOIR). It oversees
immigration courts in the US through the office of the Chief
Immigration Judge. There is an administrative body within the
Executive Office for Immigration Review (EOIR) known as Board of
Immigration Appeals (BIA). It is the highest administrative body
for interpretation and application of US immigration laws. It is
possible, in appropriate cases for an affected individual to
approach the BIA for necessary relief. Jurisdictional matters
apart, success would depend on the merit and strength of the
individual’s case. It is also possible for an affected individual
to apply to the United States Citizenship and Immigration Services
(USCIS) for waiver of grounds of inadmissibility. To secure
appropriate relief is not a walk in the park. The dexterity of
experienced immigration solicitors is apt. This is particularly
because though nonimmigrant waiver is available in a wide variety
of situations and largely discretionary there are grounds of
inadmissibility for which the waiver is unavailable including if
the applicant’s entry can undermine United States foreign policy or
if the applicant participated in torture of extrajudicial
killings.

Onyeka is the founding partner of Harvard
Consults, a leading Immigration Law Firm in Nigeria.

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