How Low Will They Go? Chapter 1: Beware, Visa Applicants and Visa Holders, of Problems Because of your Political Views
Posted on March 21, 2025
Suspicions of going to work illegally? Check. Suspicions of marrying a US citizen? Check. Suspicions of remaining in the US? Check. These are all common reasons for the inspector of Customs and Border Protection at an airport or a land border port-of-entry to invoke Section 212(a)(7)(A)(i)(I), denying their entry, and sending the person home. But criticizing the President of the United States? This is as American as apple pie; this is the Land of Free Speech, after all, right? Right? Apparently not in the eyes of CBP inspectors who have just stopped the entry of a French scientist because CBP found text messages on his phone that apparently criticized the Trump administration’s policies on academic research. This not only bodes poorly for visa and ESTA holders over the next four years, but for visa applicants.
Back in the day, the Soviets had a joke: an American proudly exclaimed to his Russian friend that America was great – “we have free speech, we even have the right to criticize the President.” To which the Russian retorted, “I too can go down to Red Square and criticize the US President. See, we have free speech!” Apparently, the Trump Administration doesn’t like the part of the joke about criticizing the US President because it is now invoking an obscure foreign policy provision of the immigration law to try to deport and prevent entry to those with which it disagrees. This first happened a few weeks ago when it sought to deport a green card holder from the US for his political views. The case is so shocking and rare that apparently there has only been one previous federal court case in which this foreign policy deportation provision was reviewed. That court found that this provision of the law was unconstitutional because it was too vague and deprived the person being deported of due process. The greatest irony – the judge in that case was President Trump’s sister.
Similarly, the denial of a visa application at a US embassy or consulate overseas based on this foreign policy provision of the law, Section 212(a)(3)(C), is also extremely rare: only 8 times in 2023, 4 times in 2022, and 0 times in 2021, the most recent years in which statistics are kept. Why is it so rare? Because the law states that if such activity is lawful in the US, then the visa cannot be denied on this ground, i.e., as long as the visa applicant’s beliefs, statements, and associations would be legal within the US, then this cannot be grounds for denying a visa. But now the Trump Administration is saying, “Not so fast.” There is an exception that states that if the Secretary of State “personally determines” that the person’s admission to the US would “compromise a compelling US foreign policy interest,” the visa can be denied. It appears that the Trump Administration is now weaponizing this provision to deport and prevent from entering the US those who disagree with it. Activists, lawyers, scientists, researchers, and even anyone using social media could be targeted. The potential scope is limited only by one’s imagination.
The real-world consequences are that for the millions of individuals who hold visas and apply for visas, it is quite possible that your social media is going to be scrutinized; your memberships in professional associations, societies, and organizations – reviewed; your professional and personal friendships and affiliations - analyzed; your publications and articles – read; your professional experience - examined. And the consular officer may not even invoke 212(a)(3)(C) or another inadmissibility, such as for “unlawful activity” under Section 212(a)(3)(A) to deny the visa – that might be too much paperwork to attempt to substantiate the decision! Instead, the consular officer may use the amorphous and ever-expanding 214(b) as a pretext for refusing the visa. The standard 214(b) justification would be that the visa applicant “did not establish to the satisfaction of the consular officer that his activities in the United States would be consistent with the visa category for which he applied.”
For those already holding a visa, the “coast is not clear:” consular staff monitoring social media, for example, may find a politically sensitive or repulsive post. At that point, a consul might revoke the visa, citing to “new, material information.” Finally, for those holding a visa or ESTA authorization and traveling to the trip to the US, CBP may deny entry under Section 212(a)(7)(A)(i)(I).
If you think you may be vulnerable to such a situation, please contact us.