This blog started more than 20 years ago based on he concept, “What if he was a foreigner?” It analyzed criminal convictions of prominent Americans to show how poorly the result would be for them if they were non-citizens subject to removal laws for their crimes.
Today, I’ll apply this analysis to Novak Djokovic, the arguably GALT tennis player, just excluded and deported from Australia because he, among other things (like lying on his visa application about testing and traveling and socializing after testing positive), refused to be vaccinated.
Mr. Djokovic’s visa was canceled on the grounds that he could encourage anti-vaccination sentiment in Australia. His ordeal began when he arrived by plane to Melbourne, Australia, on January 5, 2022. Australian law requires that all entrants to Australia be vaccinated. Australia has strict pandemic rules – apparently respected and generally followed – that so far have resulted in a death rate of 101 per million population. The United States, with weak laws largely not followed by a population apparently concerned with more important values than life and death, public welfare, and civic responsibility, has a death rate of 2,614 per million population.
Death rate per 1 million population Total deaths Deaths last Friday
Australia 106 2,633 56
United States 2,614 873,149 2,480
On a bad day, more Americans die of COVID than have died in the last two and half years of COVID in Australia.
Mr. Djokovic came to the border with a waiver of the vaccine requirement because he tested positive for COVID. Apparently, the waiver was granted by tennis authorities and the local state government in Victoria, neither of which are arbiters of Australian federal immigration laws. Apparently, the muddle of rules, exemptions, and jurisdictions led a federal court to allow Mr. Djokovic to enter Australia.
Undaunted by his initial defeat, Australia’s immigration minister, Alex Hawke, canceled the visa a second time on Friday, January 5, alleging that the visa was wrongly issued because Mr. Djokovic’s presence in Australia threatened the “health and good order” of Australia and that it was in the public interest to do so. Mr. Djokovic’s lawyers quickly appealed to a three-judge federal panel that upheld the visa cancellation on Sunday. Mr. Djokovic was assessed the government’s attorney fees and quickly left Australia.
Law and Process
When comparing Australian immigration policy regarding Mr. Djokovic and a hypothetical similar event in the United States, there are great similarities and some differences.
U.S. law does not specifically give immigration authorities the authority to deny admission to an alien for threatening the health and good order of the United States and for a person’s presence being contrary to the public interest. At INA § 212 [8 USC § 1182], grounds of inadmissibility are listed. Mr. Djokovic’s visa could have been denied because he lied on his application, INA § 212(a)(6)(c) [8 USC 1182(a)(6)(c)] or a concern that he would not obey the law as he would be expected to abide by laws about testing, isolation, social distancing, mask wearing, etc., while in Australia and his prior activities demonstrated failures to adhere to instructions and requirements.
A U.S. law making a person inadmissible based on threatening the health and good order of the United States and for a person’s presence being contrary to the public interest might not be a valid statute under United States law as it may be considered void for vagueness or that it violates other legal guarantees, like freedom of speech, including the right of citizens to hear from foreigners with divergent points of view,
In a 1972 Supreme Court case, Kleindienst v. Mandel, a Marxist journalist from Belgium was denied a visa to enter the United States because, as he termed himself, he was a “revolutionary Marxist.” A specific statute made Marxists inadmissible. Academics sued asserting their first amendment right to hear his opinions was violated. In essence, the Supreme Court held that the federal government’s power to control who enters the United States – the plenary power doctrine – outweighs first amendment concerns. As long as the reason for denying the visa was “facially legitimate and bona fide,” Mr. Mandel could be excluded from the United States. In a dissent in Kleindienst v. Mandel, Justice Thurgood Marshall wrote, “I … am stunned to learn that a country with our proud heritage has refused Dr. Mandel temporary admission. I am convinced that Americans cannot be denied the opportunity to hear Dr. Mandel’s views in person because their Government disapproves of his ideas. Therefore, I dissent from today’s decision and would affirm the judgment of the court below.”
In a later case, Kerry v. Din, the Supreme Court held that the denial of a visa to the spouse of a United States citizen was justified because of his having been a member of the Taliban, considered a terrorist organization, violating a law barring supporters of terrorism from entering the United States – a bar interpreted broadly and with few exceptions, as seen here, where a kidnapped El Salvadoran woman forced to cook and clean for rebels who kept her captive was found inadmissible as a terrorist – no kidding.
U.S. authorities could have denied Mr. Djokovic a visa for misrepresentation or under the belief that his prior track record made him likely to break the law (in his case, COVID laws), and thus inadmissible as someone coming to the United States “solely, principally, or incidentally to engage in unlawful activity.” INA § 212(a)(3)(A)(ii) [8 USC § 1182(a)(3)(A)(ii)]. in 2016 case, Cardenas v. United States, the Ninth Circuit Court of Appeals held that a non-citizen was properly denied a visa because of 8 U.S.C. § 1182(a)(3)(A)(ii) because the consular officers believed that alleged prior gang membership gave the consular officers a basis to find that Mr. Cardenas might come to the United States to commit a crime.
Further, according to Customs and Border Protection, other than for essential workers, only non-citizen travelers who are fully vaccinated for COVID-19 and have appropriate documentation will be permitted to enter the United States via land ports of entry (POE) and ferry terminals. Non-vaccinated applicants for admission are subject to “expulsion or removal.” This is the most straight-forward basis to deny a visa and entry to the United States by Mr. Djokovic had he arrived by ship or by land.
Mr. Djokovic applied for admission to Australia and Australia detained him. After a court hearing, he was allowed into Australia. He was then taken back into custody, his visa was revoked and he was deported. The revocation of the visa was unsuccessfully challenged before a panel of three federal judges before Mr. Djokovic was removed.
How Mr. Djokovic would access U.S. courts to fight the revocation of his visa depends a lot on his specific legal posture. A non-citizen cannot contest the revocation of a visa in other than removal proceedings. INA § 221(i) [8 USC 1201(i)].
If Mr. Djokovic was admitted into the United States, he ordinarily could only be removed through removal proceedings. INA § 237(a) [8 USC § 1227(a)]. However, were his visa revoked and he consequently lacked a valid basis to be in the United States and entered the United States less than two years earlier, he could be subject to expedited removal, INA § 235(b)(1)(A)(I). Expedited removal is where an immigration officer enters a removal order rather than an immigration judge. There are limited bases for a person to challenge an expedited removal order in a federal court. INA § 242(e).
If Mr. Djokovic was never admitted to the United States, he similarly would be subject to non-reviewable expedited removal. He could conceivably file a lawsuit stating a cause of action alleging a violation of his due process right to a fair determination that he is inadmissible. However, with the standard being that there was a “facially legitimate and bona fide” basis of inadmissibility, the case would likely be dismissed. If a guy with a tattoo can be denied a visa based on a belief he would commit a crime, Mr. Djokovic’s refusal to be vaccinated and the lies on his visa application would likely render the removability grounds against him facially legitimate and bona fide.
A big difference is how the case of Mr. Djokovic was handled in Australia and how it might be handled in the United States, is timing. If Mr. Djokovic was admitted to the United States and then later placed in removal proceedings, it is impossible that he could see an immigration judge, argue that his visa was improperly vacated, be ordered removed, appeal to the Board of Immigration Appeals, be denied, and file for judicial review at a court of appeals, and get a decision there in a week. Such a process would take years.
Were he ordered expeditedly removed in the United States and filed a lawsuit alleging that the facially legitimate and bona fide standard was not met when his visa was denied, it is unlikely he would see a judge in a matter of days. He more likely would sit in detention, miss the tennis tournament, and then have his case dismissed as moot. Were some tennis-loving district court judge expedite his hearing, the conclusion would most likely be that the visa revocation was justified under the facially legitimate and bona fide standard.
Interestingly, procedure-wise, Australia apparently has two features not applicable in the United States. A process involving having three judges hear a case instead of one, but with no right of appeal under Australian law, has no equivalent in U.S. immigration law. In the United States, an appeal of a decision for removal by the Board of Immigration Appeals goes to a three-judge appellate federal court panel, a decision by this three-judge appellate panel can be appealed to the Supreme Court.
Another procedure, assessing the vanquished non-citizen the government’s attorney fees, is also, thankfully, not part of the U.S. immigration law process – yet.
While our systems differ in some fundamental ways, had Mr. Djokovic come to the United States as he had gone to Australia, he would likely have suffered the same result – being removed from the United States and compelled to watch the Australian Open on TV in Serbia, Monaco, or Spain, or wherever unvaccinated tennis champs watch television. Posted January 16, 2022.