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2.0

DOS adopts expansive view that all efforts by any government agency regarding cross-border activity is a foreign affairs activity under the APA

  1. Original Date Announced

    March 14, 2025

    Secretary of State Rubio determined that “all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function of the United States under the Administrative Procedure Act.” The determination is dated February 21, 2025, but was published in the Federal Register on March 14, 2025 as Public Notice 12682.

    The determination indicates that the administration may seek to avoid notice and comment requirements under the APA for any rulemaking that implicates the cross-border movement of people, goods, services, etc.

    Trump 2.0 [ID #1616]

    2025.02.21 DOS - Determination: Foreign Affairs Functions of the United States
  2. Effective Date

    February 21, 2025

Current Status

None

Original Trump Policy Status

Status: Final/Actual
Trump Administration Action: Agency Directive
Subject Matter: Border Enforcement
Agencies Affected: DOS

Commentary

  • 2025.03.14 NAFSA: DOS Determines Immigration is APA Foreign Affairs Function

    On March 14, 2025, NAFSA writes that the State Department foreign affairs function determination goes beyond past State Department policy and could significantly impact rulemaking and adjudications by agencies such as DOS, DHS, DOL by:

    • Allowing these agencies to issue new immigration and border-related regulations without public notice and comment.
    • Making legal challenges based on APA procedural violations more difficult.
    • Potentially reducing transparency in immigration adjudications, including removal proceedings.
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