On Friday, Federal District Judge Jeanette Vargas of the Southern District of New York — a Biden appointee — set aside the policy action of the State Department on Jan. 21, 2026, in which Secretary of State Marco Rubio had ordered a ban on issuing immigrant visas to nationals from 75 different countries. These countries were predominantly third-world countries, from which foreign nationals had been identified as high risks of becoming reliant on public welfare in the U.S. President Trump had pledged to end the taxpayer subsidization of legal and illegal immigrants, and this step from the State Department was a key mechanism in carrying out his agenda.
Vargas’ order was technically an exercise of the vacatur power under the Administrative Procedure Act (APA), by which federal judges can vacate final actions of executive agencies if that action is determined by judicial review to be arbitrary or capricious, unconstitutional, violating procedure, or exceeding statutory grants of power to the agency.
Notably, even though the Supreme Court ruling in Trump v. CASA (2025) last summer clarified that federal district judges cannot constitutionally issue universal injunctions as a form of relief, that decision left open the vacatur power as a means by which judges can continue to thwart agency actions of the Trump administration.
The Usual ‘Christian’ Suspects Strike Again
It’s worth noting who sued the Trump administration in this case. Not only did applicants for immigrant visas from the targeted countries sue, but their suit was supported by pro-immigration NGOs Catholic Legal Immigration Network and African Communities Together.
Just as in almost every previous case, the legal and NGO arms of the Catholic Church are found lobbying for unrestricted immigration against every action of the Trump administration. Under the Biden administration, Catholic Charities was one of the largest NGO recipients of funding – to the tune of more than $2 billion – for resettling migrants within the U.S. The U.S. Conference of Catholic Bishops (USCCB) has filed pro-migrant amicus briefs in multiple cases, such as recently against the president’s position on birthplace citizenship and ending TPS. And it’s not just the Catholic NGOs, but many Protestant and other “Christian” organizations, such as the ELCA’s Global Refuge, which are also responsible for funding, sponsoring, and enabling the migrant invasion into the U.S.
The plaintiffs in the suit are a collection of immigrants in the U.S. (some naturalized as citizens, while others not) who sued on behalf of foreign family members seeking immigration visas who they sought to bring to the U.S. The doctrine of standing (i.e., who has standing to bring a suit in federal court) and its judicial application is one of the most confounding and inconsistent features of law.
“Intending” immigrants in other countries who have not yet come to the U.S. should not have standing to sue in federal courts because they have no rights under our Constitution and they are not residing in the U.S. It is conceivable that family members already in the U.S. could have standing to sue, but this seems ripe for abuse, as is the entire system of chain migration by which migrants have successfully brought entire family networks to the U.S.
Also, it is unclear why third parties like NGOs should have associational standing to sue here. When Alliance for Hippocratic Medicine, a group of pro-life doctors, tried to challenge the Biden administration’s regulations surrounding mifepristone, the Supreme Court held 9-0 in FDA v. Alliance for Hippocratic Medicine (2024) that they lacked standing to bring the suit. Why standing for pro-immigration NGOs, but not for pro-life ones? The hypocrisy is glaring, and standing doctrine has long been employed selectively at the preference of the judges.
Reasoning of the Court?
Judge Vargas held that the Immigration and Nationality Act does not permit the executive to discriminate based upon nationality in the issuance of visas. She wrote:
“The INA prohibits discrimination on the basis of nationality in the issuance of immigrant visas. The [Secretary’s] Policy categorically bans nationals of 75 countries from receiving immigrant visas, even when otherwise eligible, based solely on their nationality. The INA explicitly strips the Secretary of State of authority over consular adjudication of immigrant visas.”
According to Vargas, because the INA 8 U.S.C. §1151 (a) prohibits discrimination based upon nationality, the Trump administration and Secretary Rubio cannot order the suspension of visas based on nationality, as they attempted to do.
Vargas admitted that Secretary Rubio’s ban on immigrant visas for those foreign nationals from those 75 countries was based on the statistical likelihood of immigrants from those countries becoming a “public charge,” something the law, 8 U.S.C. §1182 (a)4, does permit the executive to take into account. Nevertheless, because the executive’s determination targeted countries categorically instead of judging by individual basis in each case of each applicant, it is unlawfully discriminatory.
The law is murky here. Technically, the executive has latitude to ban immigration for national security reasons or restrict issuance of visas based upon likelihood of immigrants becoming a public charge. But, given the way the statute is written, if the executive just lists a set of countries whose nationals are at risk of becoming a public charge, that could technically be unlawful discrimination based upon nationality.
The tension here highlights the absurdity of our immigration law as it exists with a requirement that the nation not discriminate against anyone anywhere in the world. How can the executive make determinations about national security risks or preventing public charges without some kind of discrimination?
Way Forward for the Trump Administration
Given that the judge set aside the entire policy from the State Department as unlawful, the Trump administration should appeal this decision as quickly as possible to hopefully get relief from the Second Circuit Court of Appeals. If that fails, they should appeal to the Supreme Court. Hopefully this process can be expedited, given the risks to national security and great harm that will come if the government is required to drop this policy.
Nevertheless, another creative workaround would be for the government to continue denying visas to applicants from these banned countries but simply drag out the process through increased scrutiny and claim that the determinations are all on an individual, case-by-case basis, instead of the allegedly unlawful basis of nationality.
It’s also worth noting that in this case, the judge set aside the Secretary of State’s Jan. 21, 2026 policy targeting public charges. However, this is distinct from Trump’s existing ban by executive order on immigration from dozens of third world countries for national security concerns. Some of these countries definitely overlap, but perhaps Trump should designate even more countries as national security risks if that is what it takes to curtail immigration. Judge Vargas admitted in her opinion that the Supreme Court already upheld Trump’s ban on entry for foreign nationals from designated threat countries in Trump v. Hawaii (2018) in his first term.
Fix the Broken System
This case is yet another reminder of how flawed our existing immigration system is. Not only has the Trump administration faced numerous obstacles and judicial obstruction in its attempt to enforce existing laws and deport illegal aliens, but “legal” immigration itself is ripe for abuse under our existing laws. It is impossible to have any system of immigration law that does not discriminate upon some factors. Ethnicity or nationality is a legitimate and natural basis upon which our nation should indeed discriminate in considering who can receive a visa or become a citizen in our country. The Hart-Cellar Immigration Act of 1965 and the later 1990 Immigration Act were passed by Democrats and pro-immigration Republicans with the deliberate intention of ending what they viewed as the discriminatory nature of America’s previous immigration laws.
Decades of essentially open borders to unlimited legal and illegal migration into America have led to increased crime, unassimilated ethnic enclaves within the country, and increasing immigrant reliance on welfare. Maybe the previous discriminatory system of immigration had a rational basis after all and should be revisited. It is long past time to curtail immigration for the benefit of the American people and our offspring. Everyone in the world is not entitled to come to America and become an “American.”
Trump is taking the right steps to fight back, but there remains much work to do. Not only must we get past the ubiquitous judicial obstruction, but we ultimately need to amend the laws and pass better, more restrictive immigration laws that are less ripe for abuse.
