Section 237(a)(4)(C)(i) of the Immigration and Nationality Act is two sentences long in substance. It provides that a noncitizen is deportable if the Secretary of State has reasonable ground to believe that their presence or activities in the United States would have potentially serious adverse foreign policy consequences.
Earlier this month the secretary of state acted under that provision in respect of two relatives of the late Qasem Soleimani, following an arrest by immigration enforcement. It was widely reported as the revocation of their green cards.
That description is not quite right, and the distance between what was reported and what the statute does is the whole of this piece. For a reader who has never had reason to look at any of this, here is how lawful permanent residence is actually ended.
What a green card is
It is documentary evidence of a status, not the status itself. The status is lawful permanent residence, and it is exactly what it sounds like: permission to live and work in the United States indefinitely, with most of the obligations of a citizen and without the vote.
The card can expire, be lost or be replaced without the status changing at all. Conversely a person can lose the status while still holding a perfectly valid card in their wallet. The two things are routinely confused, including in headlines, and the confusion matters because it makes the process sound like an administrative act performed on a document.
Who can end it, and who cannot
Here is the part that most reporting compresses.
A secretary of state can revoke a visa. That power is broad, it is largely unreviewable, and it operates on the document that allows somebody to travel to a port of entry and ask to be admitted.
A secretary of state cannot revoke lawful permanent residence. There is no provision that permits it, and the department has no such authority over a person already admitted as a resident.
Permanent residence is ended in one of three ways. The holder abandons it, by leaving for long enough and in circumstances showing they no longer intend to live in the United States. It is rescinded, in narrow circumstances, where the original grant was improper. Or the person is found removable by an immigration judge in removal proceedings, and ordered removed.
The third is what is happening here.
What the secretary actually did
He made a determination, and a determination under this provision is a piece of evidence rather than an outcome.
The mechanism runs like this. The secretary forms the view that a person’s presence would have potentially serious adverse foreign policy consequences, and sets out the basis in a letter. The Department of Homeland Security then charges the person as removable on that ground and the matter goes before an immigration judge.
At that hearing the government carries the burden. Removability must be established by clear and convincing evidence, which is a demanding standard, higher than the balance of probabilities and lower than the criminal standard. In practice the secretary’s letter is the principal evidence, and the case law requires it to set out facially reasonable and bona fide reasons rather than merely to assert a conclusion.
The person has the right to be represented, at their own expense, to see the evidence, to respond to it, and to appeal an adverse decision to the Board of Immigration Appeals and from there, on legal questions, to a federal court of appeals.
None of that is optional and none of it happens in a press release.
The limit written into the provision
There is one more feature of this ground that deserves to be better known, because it was put there deliberately.
The foreign policy ground carries an express carve out drawn from the parallel provision on admissibility. A person may not be found removable under it because of past, present or expected beliefs, statements or associations, where those beliefs, statements or associations would be lawful within the United States.
Congress wrote that in because the foreign policy ground is, by design, extremely broad, and a broad ground resting on one official’s judgment is an obvious route to removing people for what they have said. The carve out is the answer to that, it has exceptions of its own, and it is the provision most likely to be argued about in any contested case.
Detention, which is a separate question
Worth separating out, because it is where most of the practical consequence sits and it is governed by different rules.
Being charged as removable does not by itself mean being held. Whether a person is detained during proceedings depends on the ground charged, on whether a statutory mandatory detention provision applies, and otherwise on a custody determination that an immigration judge can review, with bond available in many cases.
The distinction matters because detention and removal run on different clocks. A case can take a very long time and end in the person’s favor, and the months spent in custody while that happens are not returned to them. Conversely a person released on bond can fight a case from home for years.
So two people charged under the same provision on the same day can have completely different experiences of the process, and the difference is decided early, quietly, and by a different set of rules from the ones that decide the merits.
Why the shorthand matters
Calling this a revocation is not a small error, because it describes a different kind of state.
A revocation is something an official does, alone, effective on signature. What this provision actually creates is an accusation that has to be proved to a judge, against a standard, with the accused present and able to answer.
Those are not the same, and the difference is precisely the protection that attaches to lawful permanent residence and not to a visa. Reporting that flattens it tells residents, accurately or not, that their status can be ended by an announcement. A great many people with cards in their wallets read that and drew a conclusion about how secure they are.
What to watch
Three markers will tell you how this develops, and none of them is the initial announcement.
Whether the secretary’s letters are published or described in any detail. The requirement is that the reasons be facially reasonable and bona fide, which is a low bar but not no bar, and how much is put on paper is the first indication of how the government expects to carry its burden.
Whether the free speech carve out is litigated, and how the immigration courts read it. That question has been live for some time and an appellate answer would matter well beyond these cases.
And how long the proceedings take. Removal cases are heard in a system with an enormous backlog, and a person charged under this ground may be detained while it runs. The practical consequence of the charge is therefore partly independent of whether it succeeds, which is the thing that is hardest to see from outside and easiest to feel from inside.
