Enforcement and interpretation of President Trump’s Executive Order (EO) on “Protecting the Nation from Terrorist Attacks by Foreign Nationals” are evolving rapidly, so check back here for updates.
2017-02-16: The Trump administration plans to unveil a revised EO on immigration next week and rescind the president’s initial travel ban, which has been entrenched in legal battles throughout the country, as reported in The Hill. President Trump said during a news conference on Thursday that he would unveil a more tailored travel ban “next week sometime.” The U.S. Department of Justice similarly informed the U.S. Court of Appeals for the Ninth Circuit, in the Washington v. Trump litigation: “Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.”
2017-02-09: The U.S. Court of Appeals for the Ninth Circuit has denied the government’s motion for stay of the district court’s temporary restraining order (TRO). Translation: The TRO suspending implementation of the EO remains in place. The government may appeal to the U.S. Supreme Court.
The Ninth Circuit’s decision does not decide that the EO is illegal or unconstitutional. Its scope is much narrower. Where a party moves for a stay of a TRO, that party bears the burden of proving it will likely succeed on the merits of the underlying case. Here, the court just ruled that the government didn’t prove it will likely succeed on the merits. Later, if the case reaches the trial stage, the burden will shift to the plaintiffs, i.e., the States of Michigan and Minnesota.
Reviewability: The government argued that the court lacks authority to decide whether the EO is constitutional. The court admitted that some deference should be granted to the president and Congress on immigration and national security issues. In particular, decisions to deny an individual visa based on regulations or statute may be largely unreviewable (e.g., Kleindienst v. Mandel), but courts “can and do review constitutional challenges to the substances and implementation of immigration policy” (e.g., Zadvydas and Chadha) and executive actions taken to protect national security (e.g., Aptheker v. Secretary of State). But see Chae Chan Ping v. United States (the Chinese Exclusion Case), 130 U.S. 581 (1889), discussed here.
The due process claim: The Fifth Amendment prohibits the government from depriving persons of their “life, liberty, or property without due process of law.” The EO deprives lawful permanent residents (LPRs) and others from restricted countries from returning to the U.S. after traveling abroad. This ban operates without any procedural protections, such as a court hearing. Supreme Court precedents, such as Rosenberg v. Fleuti and Landon v. Plasencia hold that LPRs do have due process rights when seeking to return to the U.S. after traveling abroad. They can’t be excluded without a hearing.
The government argued that LPRs aren’t covered by the EO, according to a memo from White House counsel Donald F. McGahn II. However, the court rejected this argument: McGahn is not empowered to issue an amended order superseding” the President’s EO. Nor is McGahn “in the chain of command” for enforcing the EO.
Religious Discrimination: The First Amendment prohibits any “law respecting an establishment of religion,” and the Equal Protection Clause prohibits the Government from impermissibly discriminating among persons based on religion. The government was unable to meet its burden to prove it’s the ban on seven Muslim-majority nations as well as its exceptions for “religious minorities” in those countries weren’t intended to discriminate on the basis of religion. The government’s arguments were hampered by “numerous statements by the President about his intent to implement a ‘Muslim ban.”
2017-02-07: The State of Washington has filed a lawsuit, State of Washington v. Trump, No. C17-0141 (W.D. Wash.), seeking to block the Executive Order (EO). The suit was later joined by the State of Minnesota. On Feb. 3, the district court judge issued a nationwide temporary restraining order (TRO) blocking enforcement of the entry ban (section 3(c)), among other things. The Trump administration immediately appealed to the U.S. Appeals Court for the Ninth Circuit, hearings were held today, and the appeals court should make a decision soon. In the meantime, U.S. Customs and Border Protection stated in a Feb. 4 press release that it will suspend implementation of the EO, and news reports are that CBP has advised airlines they may board persons previously banned by the EO. The State Department, according to a Feb. 4 urgent notice has resumed scheduling visa appointments and lifted the prior “provisional revocation” of affected visas, making them valid for travel to the United States. The Ninth Circuit has set up this webpage with further information about State of Washington v. Trump.
2017-02-03: The federal court in Boston hearing the case of Louhghalam v. Trump, No. 17-cv-10154 (D. Mass.), has decided not to extend the temporary restraining order (TRO) effective until Feb. 5, 2017, “suspending” the EO. According to the earlier TRO, “all passengers with valid travel documents are eligible to board flights to Boston” and CBP must “notify airlines that have flights arriving at Logan Airport of this order and the fact that individuals on these flights will not be detained or returned based solely on the basis of the” EO. This case involves two LPRs of Iranian origin who were detained at the Boston airport. Lufthansa has announced that due to the TRO “All passengers with valid travel documents are eligible to board flights to Boston” until Feb. 5.
2017-02-02: U.S. Citizenship and Immigration Services (USCIS) has issued a memo stating that applications and petitions by or on behalf of individuals affected by the entry ban are not affected by the EO. This includes asylum applications and Forms I-485, Applications to Adjust Status. One exception is that while Forms I-730, Refugee/Asylum Relative Petitions, will be continued to be adjudicated for beneficiaries in the U.S., “further guidance will be issued with respect to beneficiaries currently outside the United States.” The memo differs from earlier reports by the New York Times and the Intercept that USCIS had stopped granting immigration-related benefits to persons in the U.S. from restricted countries.
2017-02-02: According to the New York Times, the U.S. Embassy in Baghdad is using the national interest waiver of the ban to continue to issue special immigrant visas (SIVs) to Iraqi interpreters who served the U.S. government and military forces deployed in their country, as well as to their families.
2017-02-02: The State Department has posted this: “This Executive Order does not restrict the travel of dual nationals from any country with a valid U.S. visa in a passport of an unrestricted country. Our Embassies and Consulates around the world will continue to process visa applications and issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country, even if they hold dual nationality from one of the seven restricted countries.” This is consistent with the CBP website, which states that dual nationals travelers are being “treated according to the travel document they present.” This is consistent with what CBP acting commissioner Kevin McAleenan, says, that travelers will be “assessed … based on the passport they present, not any dual national status.”
2017-02-01: The DHS Office of Inspector General announces that it will review DHS’ implementation of the EO “in response to congressional request and whistleblower and hotline complaints.”
2017-02-01: The drafters of the EO apparently overlooked the fact that it would impact hundreds of thousands of lawful permanent residents. On January 29, 2017, DHS Secretary John Kelly’s statement and a DHS Fact Sheet, awkwardly applied the supposedly case-by-case “national interest” exception to permanent residents, as explained above. On February 1, 2017, Donald F. McGahn II, Counsel to the President, wrote a memo to “clarify” that the entry ban does not apply to lawful permanent residents.
2107-02-01: The National Visa Center (NVC) confirms that applicants covered by the ban should continue to work on in-process cases up to the point of interview. You should continue to pay fees, complete your DS-26 immigrant visa application, and submit your financial and civil supporting documents to NVC. NVC will review your case and can qualify you for an appointment. However, you will not receive a visa interview until further notice.
2017-01-31: Stay of Removal, Detention, Blocking the entry of persons with Valid Immigrant Visas, and Cancelling Validly Issued Immigrant Visas: Mohammed v. Trump, No. CV 17-00786 AP (PLAx) (C.D. Cal.): The court granted the motion for a temporary restraining order and enjoined the defendants from removing, detaining, or blocking the entry of plaintiffs or any other person from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen with a valid immigrant visa.
2017-01-30: Acting Attorney General Sally Yates, who was Barack Obama’s Deputy Attorney General and has been running the Justice Department until Jeff Sessions is confirmed, sent a letter to top Justice Department officials announcing that she would not “present arguments in defense of” the EO. In response, President Trump fired her.
2017-01-30: State Department dissent channel memo opposing the EO. Written by consular professionals, Foreign Service Officers, and members of the Civil Service, this memo criticizes the EO as bad policy:
- poorly tailored (excluding over 200 million people in order keep out a small number of persons who pose security threats);
- contrary to American values of nondiscrimination, fair play, and welcoming foreigners;
- harmful to relations with Muslim majority countries whose cooperation is needed in the fight against terrorism;
- having a negative humanitarian impact on persons, such as those seeking to come to the U.S. for medical treatment or to attend a parent’s funeral; and
- having a negative economic impact by reducing spending by foreign travelers.
2017-01-30: The American Immigration Council, with others, filed a nationwide class action lawsuit, Juweiya Ali v. Trump, No. __ (W.D. Wash.), challenging the immigrant visa ban. The named plaintiffs include U.S. citizens who have gone through a lengthy and rigorous process to petition for their relatives.
2017-01-30: Stay of Removal of Lawful Permanent Residents at Dulles–Mohammed Aziz v. Trump, No. 1:17-cv-116 (E.D. Va.): Two Yemeni brothers filed a complaint claiming they were coerced into surrendering their green cards at Dulles airport in Virginia and then flown to Ethiopia. The same brothers previously on 2017-01-28 had been granted a 7-day TRO staying removal and granting access to counsel to them and similarly situated LPRs.
2017-01-28: Nationwide Stay of Removal–Darweesh v. Trump, No. 17 Civ. 480 (AMD) (E.D.N.Y.): Two Iraqi holders of U.S. visas detained at JFK Airport brought Due Process and Equal Protection challenges, asking the court for an emergency stay of removal of similarly situated people nationwide. The stay was granted.
2017-01-28: Stay of Removal–Doe v. Trump, No. C17-126 (W.D. Wash.): Two unidentified petitioners detained at the Seattle-Tacoma International Airport were granted a stay of removal pending further hearings.
2017-01-27: The State Department has announced, in a memo from Deputy Assistant Secretary Edward Ramotowski, that pursuant to the EO it will revoke the nonimmigrant and immigrant visas of persons from restricted countries. This prevents visa holders from boarding planes to the U.S. or entering at ports of entry. Further, this could cause nonimmigrants in the U.S. with revoked visas to be subject to deportation. Under section 237(a)(1)(B) of the Immigration and Nationality Act, “any alien who is present in the United States…whose nonimmigrant visa….has been revoked under section 221(i), is deportable.” A DHS spokesperson tells the New York Times that “this does not apply to individuals who were in the country on a valid visa at the time the order was signed,” but the memo does not mention such an exception.
Summary of the Executive Order
Entry Ban on Nationals of Seven Countries (section 3(c)): The EO “suspends entry” into the U.S. as immigrants and nonimmigrants of persons “from” Syria, Somalia, Sudan, Iraq, Iran, Libya, and Yemen for a minimum 90 days period with an unclear timeline for when issuance would resume. Lifting the ban would require a U.S. determination that the restricted country is sufficiently cooperative in confirming the ID and any security risk presented by their intended travelers.
- The term “from” does not apply to non-nationals who have merely traveled to a restricted country.
- The State Department has posted this: “This Executive Order does not restrict the travel of dual nationals from any country with a valid U.S. visa in a passport of an unrestricted country. Our Embassies and Consulates around the world will continue to process visa applications and issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country, even if they hold dual nationality from one of the seven restricted countries.” This is consistent with the CBP website, which states that dual nationals travelers are being “treated according to the travel document they present.”
Case-by-Case Exceptions (section 3(g)): Exceptions to the ban may be made on a “case-by-case” basis where it is “in the national interest.”
Not Applicable to Lawful Permanent Residents (LPRs): It’s not clear whether the drafters of the EO overlooked the fact that it would impact hundreds of thousands of lawful permanent residents (LPRs). The EO was issued without normal interagency review. During the first hours of enforcement of the EO, some LPRs were reportedly denied entry. On Jan. 29, 2017, DHS Secretary John Kelly’s statement and a DHS Fact Sheet awkwardly applied the supposedly case-by-case “national interest” waiver to LPRs, saying that LPRs “traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate. The entry of these individuals, subject to national security checks, is in the national interest.” On Feb. 1, 2017, Donald F. McGahn II, Counsel to the President, wrote a memo to “clarify” that the entry ban does not apply to lawful permanent residents. This appears to be a face-saving measure that amends the EO without the embarrassment of actually having Trump sign the amendment.
Still, LPRs with ties to restricted countries who are returning to the U.S. should be prepared for possibly prolonged and rigorous inspection of your person, luggage, electronic devices, and social media accounts. LPRs may be questioned on their religious beliefs and political views. They should not automatically surrender their green cards if asked to do so by CBP officers in the airport or other port of entry. CBP may assert that an individual has lost LPR status as a result of time abroad and ask the LPR to sign a Form I-407, Abandonment of Permanent Resident Status. CBP cannot force an LPR to sign Form I-407, and there are no potential negative ramifications for refusing to sign. If CBP asserts that an individual has lost LPR status, a Notice to Appear (NTA) will be issued so that an immigration judge can determine whether they have lost their LPR status. In this situation, CBP will confiscate the green card but must provide the LPR with alternative evidence of their immigration status, such as an I-94 and/or passport stamp that says “Evidence of Temporary Residence.” For more on this topic, see Green Card Holders Staying Abroad Over 6 Months Risk Abandonment.
Advance Parole: Nationals of the restricted countries who have filed a Form I-485, Application to Adjust Status, to obtain a green card may have been issued an advance parole document authorizing travel abroad while the I-485 is pending. There has been no guidance to date as to whether such individuals will be able to re-enter with the advance parole document.
The List of Banned Nationalities May Expand: (section 3(e)): In response to rumors, the State Department has informed the public that no plans are currently being worked on to expand the travel ban to cover additional nationalities. Nevertheless, after the 90-day ban if countries do not provide “adequate information” regarding the admission of their citizens. Although the Secretary of State should provide those countries with 60 days to start providing such information, the EO doesn’t require any forewarning before imposing a ban. This creates some level of risk for any nonimmigrant who travels outside of the U.S. that they may not be able to return. And this creates some level of risk for any visa applicant that issuance may be suspended.
Syrian Refugee Admissions Suspended Indefinitely (section 5(c))
U.S. Refugee Admissions Program (USRAP) for Refugees from Other Countries Suspended for 120 Days (section 5(a)): Exceptions may be made on a “case-by-case basis” where it is in the “national interest,” including when the person is a “religious minority in his country of nationality facing religious persecution.” (Section 5(e)). No process has been specified yet to apply for an exception.
Refugee Admissions Will Not Exceed 50,000 for Fiscal Year 2017 (section 5(d))
Review of Nonimmigrant Visa Validity Reciprocity Agreements (section 9): The terms of a U.S. visa–its expiration date, the number of entries to the U.S. permitted, and the fee–are based on reciprocity by foreign governments. So if U.S. citizens are issued tourist visas valid for multiple entries to a country for 5 years for a fee of $250, then U.S. tourist visas should be issued to that country’s nationals on the same terms. The EO directs the State Department to adjust the terms of U.S. visas to ensure they are “truly reciprocal.” (Section 9).
Suspension of the Visa Interview Waiver Program (section 8): This program allowed persons renewing certain types of visas to skip a consular interview. Note that the EO doesn’t impact cases covered by INA § 222(h)(1)(A) and (B), persons under age 14 and over 79 and persons renewing the same class of visa within one year of expiration. Suspension of the visa interview waiver program may slow all visa adjudications as consular resources are stretched to interview this additional group.
Directs Development of Uniform Screening Standards for Immigration Benefits (section 4(a)): Such standards should be used to identify fraud, intent to do harm, evaluate likelihood of becoming a positively contributing member of society, and ability to make contributions to the national interest.
Expedited Completion of the Biometric Entry-Exit Tracking System for Nonimmigrants (section 7)
Reporting (section 10): Reports should cover the number of foreign nationals charged with terrorism-related offenses or gender-based violence.