Summary: This post highlights the Second Circuit’s recent decision allowing the State Department to withhold records regarding visa revocations from Freedom of Information Act (“FOIA”) requesters.  The post then critiques the Court’s problematic use of textualist methodology, noting that it presumes imprecise Congressional drafting,

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In Spadaro v. United States Customs and Border Protection,[1] the Second Circuit held that Section 222(f) of the Immigration and Naturalization Act (“INA”) allowed the State Department to withhold from a FOIA requester, pursuant to FOIA Exemption 3, documents reviewed in the course of deciding to revoke an alien’s visa.  It thus resolved an issue that has been percolating in several district courts around the country.[2]

The FOIA Request and the State Department’s Response

Italian citizen Saro Spadaro resides on St. Maarten. He applied for a U.S. visa, and cleared the required security checks.  On March 30, 2006, the U.S. Embassy in Barbados issued Spadaro a five-year combination B-1/B-2 visitor’s visa, which he used to enter the United States on multiple occasions.  On October 22, 2008, the State Department notified Spadaro that his visa had been “prudentially revoked,” apparently based upon the State Department’s determination that there was “reasonable ground to believe” that Spadaro would engage in unlawful activity in the United States. Slip op. at 4-5.[3] Given his subsequent interactions with FBI and DEA agents, Spadaro believed that the Government was seeking to use the revocation as leverage to pressure him either to implicate others in criminal activity or pay a $3 million forfeiture fine.  Id. at 5-7.  Spadaro turned to FOIA to get to the bottom of the matter.[4]  The State Department withheld 63 responsive documents.  For many it cited Exemption 3, in combination with Section 222(f) of the Immigration and Naturalization Act (“INA”), as the grounds for withholding.  Id. at 8, 11-12.

The Second Circuit’s Analysis

Section 222(f) provides that “[t]he records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States.”[5] 8 U.S.C. § 1202(f) (emphasis added).

Spadaro and the Government agreed that section 222 provided a basis for invoking FOIA Exemption 3.  Exemption 3 permits an agency to withhold from FOIA requesters records that are “specifically exempted from disclosure by statute . . . if that statute . . . (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld.”  5 U.S.C. §552(b)(3) (emphasis added).  The Court concluded that section 222(f) qualified as Exemption 3 qualifying statute because it clearly “refers to particular types of matters to be withheld.”[6]

However, the fun was just beginning.  Spadaro claimed, inter alia, that section 222(f) permitted the State Department to withhold records pertaining only to the issuance of a visa, but not records pertaining to visa revocations.  Thus section 222(f) did not cover the documents he sought.  The Government argued that the critical statutory phrase “pertaining to the issuance or refusal of visas or permits” was sufficiently broad to encompass any later actions, such as revocation, “that inherently implicate (by revisiting and nullifying) the underlying decision to issue a visa in the first place.” Id. at 19-20.

The Court sided with the Government.  While acknowledging that section 222(f), on its face, refers only to issuances or refusals to issue visas, the Court explained that Congress’ use of the word “pertaining” clearly extends the statute’s reach.  Id. at 22-23.  Referencing Black’s Law Dictionary, the Court noted that “pertain” is defined as “[t]o relate directly to; to concern or have to do with.” Thus, the use of the broad phrase “pertaining to” plainly gives section 222(f) a wider reach than mere issuances and refusals of visas.  Id. at 23.  The Court, harboring no doubt, concluded that the revocation of a visa “pertains to” the issuance of a visa because they are so closely related – namely, a revocation constitutes a nullification of that issuance.  Id.  By way of analogy, the Court noted that a refund receipt for a product would undoubtedly be considered a document “pertaining to” the purchase of that product.  Id. at 24.

The Court refused to apply the expressio unius est exclusion alterius (“expressio unius”) syntax canon – namely, the explicit mention of one thing is the exclusion of another left unmentioned – as a District Court had done in El Badrawi v. Department of Homeland Security, 583 F. Supp. 2d 285, 311 (D. Conn. 2008).  In particular, the panel would draw no inference that documents produced and considered in deciding upon visa revocation should be treated differently from documents produced and considered in connection with the issuance of visas.  Spadaro, slip op. at 24.  It refused to do so because application of syntax canons is appropriate only if the language of the statute is ambiguous.  Id.  Because the Court found section 222(f) unambiguous, the application of any interpretive canon was inappropriate.  Id.

The Court also noted that subsection of the INA that provides for the revocation of visas, 8 U.S.C. § 1201(i), lies within 8 U.S.C. § 1201, which is entitled “Issuance of visas.”  Thus, the Court explained, even assuming arguendo that section 222(f)’s language were ambiguous, its application to revocations “is certainly buttressed by” Congress’ use of the title “Issuance of visas” to cover acts intertwined with the issuance of visas, such as visa renewals, non-issuances, and revocations. 8 U.S.C. § 1201(c), (g), (i).  Spadaro, slip op. at 25.[7]

Spadaro argued, and some lower courts had reasoned, that later amendments to the INA illuminate a congressional intent to treat the issuance of a visa and its revocation as two distinct actions. For example, courts had contrasted two later provisions added to the statute in 2004 — section 5304, entitled “Revocation of Visas and Other Travel Documentation,” and section 5302, “Visa Application Requirements.” El Badrawi v. Department of Homeland Security, 583 F. Supp. 2d. at 311-12.  In the view of the El Badrawi Court, such a comparison, namely the fact that the two procedures are addressed in separate and distinct statutory sections, provided strong evidence of lawmakers’ intent to have visa revocation be treated as distinct from visa application.  Id.  In rejecting the argument, the Second Circuit panel cited the Supreme Court’s “oft-repeated warning that the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.”  Spadaro, slip op. at 26 (quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980)).  Indeed, it continued, reliance on the particular post-enactment legislation Spadaro and the El Badrawi Court cited would be especially inappropriate.  The legislation did not relate to section 222(f) and Congress had legislated for an entirely different purpose, namely to “reform the intelligence community and the [Government’s] intelligence and intelligence-related activities.” Spadaro, slip op. at 26-27 (quoting Intelligence Reform and Terrorism Prevention Act, Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004)).

Observations

While the substantive aspect of the Court’s decision is noteworthy for scholars and lawyers who focus on FOIA or immigration law, the remainder of this post focuses on the Court’s interpretive approach.  It is unusual for an interpreter to rely heavily on statutory text while strongly presuming legislative imprecision in drafting.

The Court’s purportedly textual approach in concluding that section 222(f)’s text of mandates protection for all records relating to visa revocations is questionable.  Congress was quite precise in its drafting.  The State Department has several decisions to make regarding visas and permits, including issuance and refusal to issue, renewal and refusal to renew, and revocation and refusal to revoke.  Yet the text specifies the confidentiality of records pertaining only to the first binary, namely the decision to either grant or deny a visa or permit application.  Thus it requires an extension of the express language to read section 222(f) to encompass the other two binaries. [8]   Granted, the binary regarding application for renewals could easily be considered covered because the renewal of a visa can be characterized as the issuance of a new visa upon the expiration of the old one.

Moreover, section 222(f) does not specify pertinence to the visa or permit itself, but to the issuance or refusal of such documents.  Presumably, the document must pertain to the decision-making process regarding the initial decision to grant or deny a visa application, not merely to the visa or permit itself.  Such a reading would certainly make sense if Congress were concerned about protecting confidential sources of information relied upon in making such decisions as well as the process for assessing the information that would serve as the basis of the visa decision.  See Spadaro, slip op. at P. 16-19, 28.[9]

The Inherently Ambiguous Nature of the Word “Pertain”

The word “pertain” itself is inherently quite ambiguous — it essentially requires the interpreter to make a determination of the quality of the relationship between a record and the issuance or refusal of visas or permits.  Relationship is really often a matter of degree, and frequently not an absolute concept. 

The Court makes an interesting choice as to the dictionary it selects, choosing Black’s Law Dictionary rather than a dictionary of ordinary English usage, suggesting that it views the term “pertaining” as a legal term of art.  Even the definition the Court cites “to relate directly to; to concern or have to do with” is problematic in terms of the Court’s conclusion.  First, the primary definition, “to relate directly to,” seems far narrower than the secondary definition, “to concern or have to do with.”  The word “directly” implies that there must be a particular quality to the connection, any old connection will not suffice.  The Court itself seemingly acknowledges this aspect of the definition by discussing the necessary relationship in terms of the closeness of the relationship — asserting that revocation is “so closely-related” to the issuance of a visa.[10]

Second, does the term “pertain” encompass what we might call second-order relationships?  The revocation of a visa or permit may well directly pertain to the visa or permit itself because the revocation determines the visa or permit’s continued validity.[11] Thus revocations are provided for in the section that provides for the issuance of visas.  But records containing after-acquired information leading to a revocation decision arguably do not “pertain” to the initial decision on the application.  To the extent such records pertain to the decision regarding the initial visa application, it is because revocation of a visa or permit arguably pertains to the decision on the initial application, the first order relationship, and in turn the record of after-acquired information pertains to the revocation decision, the second order relationship.  Should we stop at first-order relationships, second- order relationships, third-order relationships — the text by itself does not yield an answer.[12]

Similarly, the primary definition of “pertain” requires some theory of which connections are “direct,” i.e., sufficiently close, as the Court phrased it.  The text provides no unambiguous answer to that question either.  Sufficiently direct could mean only records produced or reviewed in coming to a decision on a visa application.  Or it could also include records obtained or produced afterward that cast doubt upon the validity of the decision as of the time it was made.  For example, documents providing information that contradicts the factual basis of the initial decision on the application would fall into such a category.  Or, even more broadly, a sufficiently direct relationship might encompass records that address a visa or permit holder’s actions subsequent to the initial issuance of the visa that lead the State Department to revoke the visa or permit.  Here, the permit would not be revoked because any of the conclusions regarding to the initial visa or permit application are put into question, but only because of events that took place subsequently.  Which approach is mandated by the text?  It is far from clear.  The last choice hardly seems the most natural or compelling interpretation.

In any event, if Congress wanted to use simple declaratory language to express its desire to privilege information related to the initial decision to grant a visa or permit, and to say nothing one way or the other regarding records relating to visa revocations, what language could Congress have used, other than the precise language Congress actually employed — privileging documents pertaining to the issuance or refusal of visas or permits.

Expressio unius est exclusion alterius

Compounding its error, the Spadaro panel equated reading the statutes as if they were precisely drafted, the customary manner in which textualists read statutes, with the expressio unius interpretive canon.  This led the panel to view the precision of the statutory drafting as relevant only once the text is considered ambiguous, because expressio unius can be invoked only if the text is unclear.  The Court’s analysis is deeply flawed because reading section 222(f) to encompass only documents directly related to the decision on visa applications does not rest on the expressio unius canon.  Expressio unius, properly interpreted,[13] suggests that matters not expressly included in the statute should be given the opposite treatment of the matters included in the statute.  It is not an expressio unius argument to say that Congress was taking no position one way or the other on matters left unmentioned in a statute.[14]

A simple analogy is helpful here.  If after a particular class session a student complements me on my tie, the student’s comment could be interpreted in two disparate ways.  First, I could take the comment to mean that the student likes the tie I am wearing on that particular day and is expressing no view at all regarding the ties I have worn to class on other days.  Alternatively, I could understand the student to mean that he likes the tie I am wearing on that particular day, but dislikes the ties I have worn during every other class session.  Only the latter interpretation is a true expressio unius argument.[15]

So, returning to section 222(f), in enacting that provision Congress may well have been specifying confidentiality with respect to records associated with the initial decision on a visa application, and making no statement one way or the other with regard to revocations.  In other words, Congress may simply have been drafting quite precisely.  So what does this mean for records associated with revocation decisions — it means that more general laws would apply to such documents.  In particular, FOIA’s Exemption 3 does not privilege documents that are left uncovered by an Exemption 3 statute, and given Congress’ precision in drafting section 222(f), documents relating to revocation fall outside the provision.  Thus, the argument that section 222(f) does not cover records relating to visa or permit revocations or refusals to revoke, i.e., the statute means what it says, does not turn on application of the expressio unius canon. 

And, of course, Congress has enacted an entire statute to address public availability of documents not specifically exempted from disclosure by a focused non-disclosure statute, namely FOIA, which contains at least two exemptions that may cover some or all of the documents produced or reviewed in connection with revocation decisions.[16]  And, of course, FOIA law incorporates its own preference, namely narrow construction of exceptions to the general disclosure obligation mandated by FOIA.  Ironically, the Spadaro Court had earlier noted this FOIA-based interpretive canon. Spadaro, slip op. at 21.

A Quick Digression Into Section Headings

Section headings can serve as guides to interpreting ambiguous statutes, particularly when provided in the legislation or later adopted by Congress[17]  The Spadaro Court noted that the heading for section 221 of the INA, 8 U.S.C §1201, is entitled Issuance of Visas, but includes provisions regarding the revocation of visas.  Id. at 25.  Section 222 is distinct from section 221, and is headed “Application for Visas.”  The confidentiality provision, specifically shielding records pertinent to the issuance or refusal of visas, appears in section 222, not section 221.  And unlike its close cousin, section 222, though quite detailed and l engthy, does not once mention revocation of visas.  It does discuss matters that are a part of the process for an alien’s application for a visa and the State Department’s decision upon visa applications, including the documentary evidence that must be submitted in support of the application, signature and verification of the application, and in-person interviews in connection with the visa application.  The division of provisions between sections 221 and 222, the distinct headings — “Issuance of Visa” versus “Application for Visas”, as well as the placement of the confidentiality provisions in the later section, all suggest that the confidentiality provision is focused on documents related to visa applications, not visa revocations.  Indeed, Congress might have meant to extend protections only to the types of documents mentioned in section 222.  Congress might well have depended on FOIA Exemption 5’s recognition of the deliberative process privilege to shield documents reflecting the State Department’s deliberations regarding whether to issue or refuse a visa application.  And it might have assumed that the law enforcement exception would shield the documents State Department officials reviewed in reaching their decisions.  Indeed, limiting the reach of confidentiality to the records mentioned in section 222 as a part of the application process would seem the most natural interpretation of the statutory text.

The Decision May Be Correct Even If Not Textualist

Is all this to say that documents pertaining to visa and permit revocations are not covered by section 222(f)?  Not necessarily.  But it does suggest that they cannot be encompassed by the statute under a “plain meaning” analysis.18]  It may well be that after considering the purpose of the statute or other extrinsic aids a Court might conclude that Congress would have had no plausible reason to mandate less robust protection for documents relevant to the visa revocation process than documents relevant to the initial decision to issue a visa.  See Spadaro, slip op. at 28.[19]

Conclusion

The Court at least resolved the question of whether documents regarding visa revocations fall within section 222(f), and are thus shielded from FOIA requests by FOIA Exemption 3.  But in doing so the Court employed a flawed approach to textualism, an approach the textualists on the Supreme Court may well uncharitably consider a throwback to a “bygone era of statutory construction.”  See, Food Marketing Institute v. Argus Leader Media, — U.S. —, 139 S.Ct. 2356, 2364 (2019).

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[1] — F.3d —, 2020 WL 6140623 (October 20, 2020). I will cite to the slip opinion rather than to westlaw.

[2] E.g., Soto v. United States Department of State, No. CV 14-604, 2016 WL 3390667, at *3 (D.D.C. June 17, 2016); El Badrawi v. Department of Homeland Security, 583 F. Supp. 2d 285, 311 (D. Conn. 2008); Mantilla v. U.S. Dep’t of State, 2012 WL 4372239, at *4 (S.D. Fla. Sept. 24, 2012); Guerra v. United States, 2010 WL 5211613, at *2 (W.D. Wash. Dec. 15, 2010).

[3] Visa revocations are not subject to judicial review, except where the revocation is the sole ground for removing an alien from the United States under 8 U.S.C § 1227(a)(1)(B).

[4] He requested documents from the U.S. Citizenship & Immigration Services, Customs & Border Patrol, the Department of Justice, as well as the Federal Bureau of Investigation, in addition to his request to the State Department.  Slip op. at 8.

[5] The provisions sets forth two exceptions to the confidentiality rule, permitting disclosures to courts and foreign governments.

[6] Accord, Medina-Hincapie v. Dep’t of State, 700 F.2d 737, 741 (D.C. Cir. 1983); Wiener v. FBI, 943 F.2d 972, 982 (9th Cir. 1991); De Laurentiis v. Haig, 686 F.2d 192, 193 (3d Cir. 1982).

[7] Puzzlingly, the Court, having decided to offer arguments that applied only when a statute is considered ambiguous, failed to concomitantly address the expressio unius argument on the merits.

[8] A well-known D.C. Circuit case provides an example of a decision that distinguishes initial applications from what was in effect a revocation. Tracey v. Gleason, 379 F.2d 469 (1967).  There a jurisdictional statute barring review of any question of law or fact concerning a claim for benefits, was read as not encompassing suits challenging the VA’s termination of benefits.  Underlying the case was the heavy presumption against reading statutes to bar judicial review.

[9] Perhaps such an interpretation would make less sense, and embracing a broader view of confidentiality would be appropriate, if the provision were designed to protect the privacy of visa and permit applicants or holders. But then it would hardly make sense to withhold the information from the visa or permit applicant or holder.

[10] The Oxford English Dictionary’s primary definition is narrower than that offered by the Black’s Law Dictionary.  It defines “pertain” as meaning “To belong, be connected to (something), esp. as part of a whole, or as an appendage or accessory.”  Documents that are an appendage or accessory to the visa issuance decision would presumably be the “record” on which the decision was based (including any documents that were a part of the decision-maker’s deliberations.  The secondary definition approximates the secondary definition in Black’s Law Dictionary, namely “To relate to; to refer to,” and thus poses the same problem regarding interpretation — how substantial must the relationship be, will any relationship at all suffice?

[11] The analogy the Court employs to demonstrate the meaning of the term “pertain to” is a bit odd. P. 24.  Does a refund receipt pertain to the purchase of a product?  The answer is neither as self-evident nor as divorced from context as the Court appears to believe.  If there were a statue privileging information pertaining to a retailer’s decision about a consumer’s qualification to purchase a product, would that provision also privilege the refund receipt evidencing return of the product?  Why would it? It hardly seems related to the consumer’s qualifications to purchase the product.

[12] To simplify, in a provision specifying that matters must pertain to A, is it sufficient that C pertain to B, which in turn pertains to A?  What about D, which pertains to C, which pertains to B, which pertains to A.

[13] Expressio unius is often stated in a confusing manner, sometimes sounding like an assertion that a statute provides for what it includes and does not provide for what it excludes, a seemingly tautological statement.  Several standard situations in which expressio unius seems to be frequently invoked are identified in NORMAN SINGER & SHAMBIE SINGER, 2A SUTHERLAND STATUTORY CONSTRUCTION § 47:23 (7th ed.).

[14] Frank Easterbrook explored presumptions regarding the reach of statutes, i.e., statute’s domains, in his seminal 1983 article.  Frank Easterbrook, Statute’s Domains, 50 U. CHI. L. REV. 533 (1983).  There, he proposed the following approach:

“My suggestion is that unless the statute plainly hands courts the power to create and revise a form of common law, the domain of the statute should be restricted to cases anticipated by its framers and expressly resolved in the legislative process. Unless the party relying on the statute could establish either express resolution or creation of the common law power of revision, the court would hold the matter in question outside the statute’s domain. The statute would become irrelevant, the parties (and court) remitted to whatever other sources of law might be applicable.”

Id. at 544.  This is not to say that I fully agree with Easterbrook’s approach to statutory interpretation (it my view it too narrowly construes statutes) or that his approach is one courts could consistently apply (the determinations the approach requires are too subtle and imprecise).  But Judge Easterbrook well captures an essential truth, that sometimes a statute simply does not address an issue that is closely related to what the statute seeks to accomplish.

[15] An obscure and infrequently cited old chestnut puts the matter quite well — the premise underlying expressio unius “is that the draftsman has made a comprehensive review of all possible related provisions, from which the inference is to be drawn that his silence indicates a discriminating judgment of rejection.”   Durnin v. Allentown Federal Savings & Loan Assn., 218 F. Supp. 716, 719 (E.D.Pa. 1963).  The District Judge explained that “[s]uch a conclusion usually is unrealistic, for it assumes too much foresight in the draftsman.”  Similarly, the Supreme Court explained, in Marx v. General Revenue Corp., 568 U.S. 371 (2013)(Thomas, J.):

We have long held that the expressio unius canon does not apply “unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it,” Barnhart v. Peabody Coal Co., 537 U.S. 149,(2003), and that the canon can be overcome by “contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion,” United States v. Vonn, 535 U.S. 55, 65, (2002).

Marx v. General Revenue Corp., 568 U.S. at 381.

[16] Both the deliberative process privilege incorporated by Exemption 5 and one or more of the l exemptions shielding law enforcement records, in Exception 7, might well authorize the refusal to disclose such records.  While the State Department would not in general be categorized as a law enforcement agency, it may well qualify as one in making determinations barring individuals from the United States on that grounds that they are likely to engage in criminal activity.  See, Public Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary and Water Comm’n, 740 F.3d 195, 203 (D.C. Cir. 2014)(“[l]aw enforcement entails more than just investigating and prosecuting individuals after a violation of the law;” it also encompasses “ proactive steps designed to prevent criminal activity and to maintain security.”)

[17] Apparently, American courts have long taken the position that even when a section heading was not enacted into law, but instead added later by a compiler, the heading could nevertheless serve as an aid in resolving statutory ambiguities. 1A SUTHERLAND STATUTORY CONSTRUCTION, supra, at  § 21:4 (“Even though a section heading is not part of the law, it can aid interpretation when an ambiguity exists.”).  A more modern approach would limit reliance of section headings to those actually enacted into law. See, U.S. v. Buckland, 277 F.3d 1173 (9th Cir. 2002), opinion amended and superseded on other grounds, 289 F.3d 558 (9th Cir. 2002); NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, UNIFORM STATUTE AND RULE CONSTRUCTION ACT §13 (1995) (“[h]eadings and titles may not be used in construing a statute or rule unless they are contained in the [enrolled bill] or rule as adopted”]).  In Buckland, the Court asserted that statutory subsection headings that are not part of the legislation enacted by Congress, but added later by the Office of the Federal Register, the National Archives and Records Services, and which became subsection headings when the legislation was transposed into the United States Code, do not serve as a reliable guide to congressional intention.  The modern approach would seem to be more in line with “new textualist” theory, which accords significant to statutory text because only the words enacted by Congress undergo the constitutionally-required processes of bicameral approval and presentment to the President.

[18] For my own critique of the new textualism, the seemingly increasingly dominant mode of statutory interpretation, see Bernard W. Bell, Legislative History Without Legislative Intent: The Public Justification Approach to Statutory Interpretation, 60 OHIO ST. L.J. 1, 48-62 (1999).

[19] Of course, no less than Justice Scalia himself was highly critical of such an approach, albeit in a somewhat different context. In complaining about the majority’s recognition of a third unenumerated exception in addition to the two exceptions that the statute at issue expressly provided, Justice Scalia asserted:

In a way, therefore, the Court’s treatment of this issue has ample precedent—in those many wrongly decided cases that replace what the legislature said with what courts think the legislature would have said (i.e., in the judges’ estimation should have said) if it had only “considered” unanticipated consequences of what it did say (of which the courts disapprove). In any event, the relevant question here is not whether § 9704(f)(2) excludes other grounds for adjustments to the applicable percentage, but rather whether anything in the statute affirmatively authorizes them. The answer to that question is no.

Barnhardt v. Peabody Coal Co., 537 U.S. 149, 180 (2003)(Scalia, J. dissenting).