Introduction

Under section 237(b)(4)(C)(i) of the Immigration and Nationality Act, “an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have serious adverse foreign policy consequences for the United States is deportable.” There exists a parallel inadmissibility provision in section 212(a)(3)(C)(i) of the Act providing “an alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious foreign policy consequences for the United States is inadmissible.” (We discussed both provisions in brief in our article on deportability for security and related grounds.) These provisions provide for inadmissibility and deportability by Secretary of State determination.

Section 237(b)(4)(C)(i) has been in the news in 2025 because Secretary of State Marco Rubio has made numerous findings under the statute regarding specific lawful permanent residents and student visa holders, including in the high profile case of Mahmoud Khalil, leading to the State Department revoking their visas and to the Department of Homeland Security initiating removal proceedings. (We discussed the State Department’s authority to revoke visas of aliens present in the United States in the context of convictions for driving under the influence in a separate article.)

Below, we will provide a general overview of sections 237(b)(4)(C)(i) and 212(a)(3)(C)(i), covering respectively deportability and inadmissibility for aliens whose presence in or admission into the United States is determined by the Secretary of State to have serious adverse foreign policy consequences for the United States.

Understanding the Secretary of State’s Role in Immigration

As a threshold matter — both section 237(b)(4)(C)(i) and 212(a)(3)(C)(i) depend on factual determinations made by the United States Secretary of State. The Secretary of State heads the United States Department of State and is America’s top diplomat. The State Department ordinarily plays a significant role in U.S. immigration law and policy through its consulates, which are responsible for adjudicating visa applications outside the United States. The Department of Homeland Security is responsible for enforcing immigration law in the interior of the United States and at ports of entry. The Immigration Court system exists under the purview of the United States Department of Justice. The Secretary of State, in his or her capacity as the top diplomat of the United States, may determine that a specific alien’s presence or activities in the United States (or proposed activities in the case of an alien who is not already present in the United States) would have serious adverse foreign policy consequences for the United States. Under section 237(b)(4)(C)(i) and 212(a)(3)(C)(i), this determination renders the alien deportable or inadmissible respectively. In the case of an alien who is already present in the United States, the Department of Homeland Security may issue a Notice to Appear to an alien for deportability under section 237(b)(4)(C)(i) pursuant to the Secretary of State’s determination that the alien’s presence or activities in the United States would have serious adverse foreign policy consequences.

Reading INA 237(b)(4)(C)(i) and 212(a)(3)(C)

Under section 237(b)(4)(C)(i) of the INA, (also codified at 8 C.F.R. 1227(b)(4)(C)(i)) “[a]n alien whose presence or 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 deportable.” There is a similar inadmissibility provision codified at section 212(a)(3)(C)(i) of the Act (also codified at 8 C.F.R. 1182(a)(3)(C)(i)): “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.”

There are two exceptions to both 237(b)(4)(C)(i) and 212(a)(3)(C)(i) that are set forth in sections 212(a)(3)(C)(ii) and (iii). Although the exceptions are found within the inadmissibility provision, they are incorporated into the deportability provision by section 237(b)(4)(C)(ii) (“The exceptions described in clauses (ii) and (iii) of section 212(a)(3)(C) … shall apply to deportability … in the same manner as they apply to inadmissibility).

The first exception is relatively narrow. Section 212(a)(3)(C)(ii) provides that: “An alien who is an official of a foreign government or a purported government, or who is a candidate for election to a foreign government office during the period immediately preceding the election for that office, shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) solely because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.” This exception only applies to (1) an alien who is an official of a foreign government or a purported government; or (2) who is a candidate for election in a foreign government office during the period immediately preceding the election for that office. The terms “purported government” and “immediately preceding” are not clearly defined by the statute. The Department of State’s Foreign Affairs Manual summarizes the limitation on the applicability of sections 212(a)(3)(C)(i) and 237(b)(4)(C)(i) by explaining that “exclusion must be based on factors related to the applicant’s entry or proposed activities which go beyond the applicant’s beliefs, statements, and associations, and which may have the requisite potential for serious adverse foreign policy consequences.” 9 FAM 302.14-2(B)(1).

The second exception applies to aliens who are not government officials or qualifying candidates for foreign office. Found in section 212(a)(3)(C)(iii), it reads as follows: “An alien, not described in clause (ii), shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.” In short, neither section 212(a)(3)(C)(i) nor 237(b)(4)(C)(i) ordinarily apply in cases where the alien’s past, current, or expected beliefs, statements, or associations are or would be lawful in the United States. However, while that exception is the end of the matter for foreign government officials and candidates for foreign office, other aliens may nevertheless be found inadmissible or deportable for “beliefs, statements, or associations” that would otherwise be lawful in the United States, provided that “the Secretary of State personally determines that the alien’s admission [or being allowed to remain in the United States, in the case of section 237(b)(4)(C)(i)] would compromise a compelling United States foreign policy interest.” The State Department’s Foreign Policy Manual instructs consular officers regarding the exception: “‘Compromise a compelling United States foreign policy interest’ is a significantly higher standard than the ‘have potentially serious adverse foreign policy consequences’ standard generally required for finding of ineligibility under INA 212(a)(3)(C).” 9 FAM 302.14-2(B)(2). However, it is worth noting that the different standards may have a greater effect where consular officers are making an initial recommendation or finding regarding admissibility than when the Secretary of State exercises his or her own authority to make a determination about an alien already present in the United States based on the Secretary’s position regarding the foreign policy interests of the United States.

Under section 212(a)(3)(C)(iv) of the INA, the Secretary of State is required to notify relevant committees of the United States House of Representatives and the United States Senate whenever he or she invokes section 212(a)(3)(C)(iii) to declare that an alien is inadmissible or deportable because his or her admission or being allowed to remain in the United States would compromise a compelling United States foreign policy interest. While this provision does not change the disposition of any specific case, it is designed to ensure that Congress is aware of how the Secretary of State is exercising his or her authority under section 212(a)(3)(C)(iv).

Section 237(b)(4)(C)(i) in Removal Proceedings

Section 237(b)(4)(C)(i) has been in the news in 2025 because Secretary of State Marco Rubio has made determinations under the statute in several cases involving both permanent residents and nonimmigrants. The statute has been relatively lightly adjudicated in the removal context. The most significant decision on the scope of the statute was published by the Board of Immigration Appeals in 1999 in Matter of Ruiz-Massieu, 22 I&N Dec. 833 (BIA 1999) (en banc). This decision dealt with former section 241(a)(4)(C)(i) which was subsequently re-codified as 237(b)(4)(C)(i). Matter of Ruiz-Masseiu involved a nonimmigrant visitor for pleasure who was placed in formal deportation proceedings pursuant to the issuance of an Order to Show Cause (today removal proceedings are initiated with the issuance of a Notice to Appear), charging him with deportability under former section 241(a)(4)(C)(i) of the Act.

In Matter of Ruiz-Masseiu the Secretary of State at the time, Warren Christopher, had personally determined that the presence of the alien in the United States would have serious adverse foreign policy consequences regarding relations between the governments of the United States and Mexico. The Immigration Judge below had then ruled in favor of the alien, finding that the written determination by the Secretary of State did not establish deportability. The Immigration Judge sought to examine the Secretary’s reasoning and found that the Government had failed to explain what about the alien’s presence in the United States would adversely affect the foreign policy interests of the United States. Id. at 835-36.

The Board disagreed with the Immigration Judge and sustained the government’s appeal. The key passage in its decision reads as follows: “Congress’ decision to require a specific determination by the Secretary of State, based on foreign policy interests, to establish deportability under section 241(a)(4)(C)(i) of the Act, coupled with the division of authority in section 103 of the Act between the Attorney General and the Secretary of State, make it clear that the Secretary of State’s reasonable determination in this case should be treated as conclusive evidence of the respondent’s deportability.” Id. at 842. In short, the Board’s position is that the Secretary of State’s written determination that the alien’s presence in the United States would have serious adverse foreign policy consequences for the United States is sufficient to trigger deportability under section 237(b)(4)(C)(i) of the Act.

The Board read the Immigration Judge’s decision as inviting adjudicators acting under the auspices of the United States Attorney General to determine whether a foreign policy determination by the Secretary of State is reasonable based on the facts relied upon by the Secretary of State, which the Board concluded is not in accord with the statute. “There is no indication that Congress contemplated the Immigration Judge, or even the Attorney General, overruling the Secretary of State on a question of foreign policy.” Id. at 845. Citing to the Supreme Court decision in Kleindienst v. Mandel, 408 U.S. 753, 770 (1972) (which we discussed tangentially in our review of Trump v. Hawaii 585 U.S. 687 (2018)), the Board concluded that deportability under the current 237(b)(4)(C)(i) is triggered when the Secretary of State provides a “facially legitimate and bona fide” reason for determining that an alien’s continued presence in the United States would have serious adverse foreign policy consequences. Id. at 846. The Board declined to consider a hypothetical scenario where the Secretary of State provides no reasoning whatsoever. Id.

In short, the Matter of Ruiz-Masseiu provides that the determination of the Secretary of State that an alien’s presence in the United States is detrimental to a foreign policy interest thereof is decisive evidence of deportability. The decision effectively forecloses any assessment by immigration judge’s or the Board of the Secretary of State’s foreign policy determination.

Conclusion: Inadmissibility and Deportability by Secretary of State Determination

Section 237(b)(4)(C)(i) gives the Secretary of State broad authority to determine that an alien’s presence in the United States would have serious adverse foreign policy consequences, and section 212(a)(3)(C)(i) applies the same rule prospectively in the inadmissibility context.

In the context of removal proceedings brought under section 237(b)(4)(C)(i), Board of Immigration Appeals precedent establishes clearly that the Secretary’s determination is conclusive evidence of deportability, meaning that the Department of Homeland Security does not bear the burden of defending the Secretary’s determination and that neither immigration judges nor the Board may opine about the foreign policy interests of the United States. However, it is possible that Federal courts may develop the issue further as new section 237(b)(4)(C)(i) cases are adjudicated.

Inadmissibility determinations under section 212(a)(3)(C)(i) are similarly difficult to challenge, especially for aliens seeking visas from abroad (see our 2015 piece on consular nonreviewability and the 2018 Trump v. Hawaii decision for additional context).

An alien facing deportability under section 237(b)(4)(C)(i) or inadmissibility under section 212(a)(3)(C)(i) should consult with an experienced immigration attorney for case-specific guidance and an assessment of what options, if any, may be available.