On January 27, 2017 the President signed an Executive Order on Protecting the Nation From Terrorist Attacks by Foreign Nationals. This article focuses on Sections 3, 4 and 5 of the Executive Order:
On Thursday, February 9th 2017, the United States Court of Appeals for the Ninth Circuit upheld a ruling from the lower court that issued a nationwide stay against this Executive Order.
The appeals court said the government had not justified suspending travel from the seven countries. “The government has pointed to no evidence,” the decision said, “that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”
An Executive Order (EO) is a legally binding, official document signed by the President of the United States that dictates the policy of the U.S. government. It essentially gives instructions to government agencies on how they should interpret and carry out federal law.
This EO states that its purpose is to protect Americans by ensuring that the U.S. does not grant entry into the U.S. to anyone who does not support the U.S. Constitution or to those ‘who engage in acts of bigotry and hatred.
Section 3 is one of the most significant sections of the EO, severely limiting immigration (temporary and permanent) to the U.S., particularly for individuals of certain Muslim majority nations. This includes those who already have valid visas for entry into the U.S.
This section of EO states that The U.S. Department of Homeland Security shall conduct a review to determine what information is needed from a country in order to ensure that the nationals of each country are who they claim to be and not a security or public-safety threat. The Secretary of Homeland Security has 30 days to provide the President with a list of countries that it deems to not provide adequate information regarding their citizens.
After the initial 30 day review period, the countries deemed to not provide sufficient information, will be given 60 days to provide such information. If the notified countries do not provide the information requested, they will be placed on a list of recommended countries whose nationals could be barred from entry to the United States, indefinitely. The EO gives the Secretary of State and Secretary of Homeland Security broad leeway on adding countries to the list “at any point” after the initial recommended list.
During the 90 day review process, the EO will prohibit all immigrant and nonimmigrant entry to the U.S. from nationals of the following countries:
Based on the language of the EO, this means, regardless of whether an individual has a valid visa or green card for entry into the U.S., they will not be granted entry to the U.S. if they are a national of one of the above mentioned countries for at least 90 days from the date of this EO. Further, if they are a citizen of any of the above 7 countries in addition to any third country (e.g. someone with both British and Syrian citizenship), they will also be barred from entry into the U.S. If these listed countries do not comply with the information requested at the end of the 90 day period, nationals of these countries may be permanently barred from entry to the U.S. For this reason, nationals of those countries should NOT travel outside of the United States. Furthermore, because additional nations may be added to list of countries whose citizens are banned from entry to the United States, all foreign nationals in the U.S. with citizenship in a majority Muslim nation should consider speaking with an immigration attorney before planning any trips abroad.
The stated purpose of this temporary ban is to 1) temporarily reduce investigative burdens to relevant agencies during the review period 2) to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and 3) to ensure that adequate standards are established to prevent the terrorist or criminal infiltration of foreign nationals.
The EO does not provide any details regarding the extent of the information required from countries on their citizens for that information to be considered satisfactory. The 7 banned nations are not explicitly stated in the EO, rather they are based on the Visa Waiver Program Improvement and Terrorist Travel Prevention Act issued under the Obama administration. However, according to a study recently published by sociology professor, Charles Kurzman of the University of North Carolina, no nationals of the 7 banned countries have carried out a fatal terrorist attack in the U.S. in the last 20 years.
The President’s EO could be challenged in the courts and potentially found illegal under The Immigration and Nationality Act of 1965 which bans all discrimination against immigrants on the basis of national origin. The Act states that no person can be “discriminated against in the issuance of an immigrant visa because of a person’s race, sex, nationality, place of birth or place of residence.” Immigration policy analyst, David Bier, has stated that the language of the 1965 Act bans discrimination against the issuance of an immigrant visa and does not explicitly state that it bans discrimination against admission to the U.S. However, he argues that if an individual is barred from entry to the U.S., then they also cannot legally be issued a visa. Furthermore, the 1965 Act protects against “Immigrant Visa” discrimination, limiting the protection to issuance of green cards and not temporary visas.
On January 28, Customs and Border Protection (CBP) started notifying airlines about passengers who are now affected by the ban and began refusing entry of citizens from these countries traveling with valid visas and green cards. Airlines have also been preventing individuals with visas and green cards from the 7 listed nations or those with refugee status, from boarding flights to the U.S.
In response, the ACLU filed a lawsuit in federal court in New York. The Judge agreed with the ACLU’s case and blocked deportations nationwide of individuals affected by the EO and in the U.S. or in transit to the U.S.at the time the order was signed. Those individual refugees and valid visa holders are temporarily protected from deportation from the U.S. and will be allowed to stay until a final determination on the lawsuit has been issued. The Federal decision does not apply to foreign nationals that are currently outside of the U.S. or will depart the U.S. in the future. The ACLU has filed an additional motion requesting emergency clarification from the court that the New York court’s ruling must be enforced nationwide.
In response, the administration is seeming to back off of the entry ban as it related to green card holders as many of these individuals have already been vetted by the government and have established their homes and families within the U.S. The Department of Homeland Security put out a statement on January 29 in response to the recent litigation stating that it “will comply with judicial orders” but that it also will continue to “implement President Trump’s Executive Orders.” Additionally, the Secretary of Homeland Security officially stated that the entry of lawful permanent residents is in the national interest of the country. However it is still unclear how lawful permanent residents holding citizenship from the 7 banned countries will be able to obtain the permission necessary to gain entry into the U.S.
The EO has already resulted in widespread condemnation by world leaders, advocacy groups, tech leaders, and faith groups.
Section 4 of the EO states that it wants to implement a program to identify individuals seeking to enter the U.S. on fraudulent basis, with intent to cause harm or may be at risk of causing harm. The program includes screening standards and procedures that are largely already in place during the immigration process. For instance, the EO wants to implement in-person interviews. The vast majority of visas already require an in-person interview at a U.S. Embassy or Consulate before an officer will issue a visa to the U.S. Currently, if an individual wants to visit the U.S. for tourism or work purposes, he or she must schedule an in-person interview with a U.S. consulate officer, who will need to assess whether or not a visa will be granted. If a visa is granted, the individual’s ability to enter will again be reviewed at a U.S. port of entry by an immigration officer.
Another part of the program will include creating “a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.” No information is provided regarding what that ‘mechanism’ may entail. The timeline for implementing these changes alludes only to progress reports to be submitted to the President within 60, 100, and 200 days of the EO.
This section of the EO suspends the entire U.S. Refugee program for 120 days from the date of the EO. During this time, the Secretary of Homeland Security is to review the U.S. refugee process “to determine what additional procedures can be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.”
If the refugee program resumes after 4 months, it will only resume for certain countries that have been designated by the new administration. Furthermore, the program “will prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” The EO states that refugee claims made on the basis of religious-based persecution, may be admitted on a case by cases basis during the 4 month ban, as long as they are of the minority religion of the country. This means, for Muslim majority countries, that non-Muslims will be given priority as refugees. According to Pew Research Center, 2016 was the first time in nearly 15 years that the U.S. admitted more Muslim refugees than Christian refugees. Even so, Muslim refugees made up a total of 46% of refugees and Christians made up a total of 44% of the refugees. Many refugees have worked as interpreters for the U.S. military.
The 4 month suspension does not apply to Syrian refugees; rather, admittance of nationals of Syria as refugees to the U.S. is indefinitely suspended. In 2015, only 2.5 percent of all refugees were Syrian nationals. The EO also reduces the number of refugees allowed in the U.S. for FY 2017 from the current estimated number of 110,000 refugees to a total of 50,000, despite the large humanitarian refugee crisis around the globe.
Currently the process of entering the U.S. as a refugee consists of rigorous vetting and numerous interviews. They are subject to the highest level of security checks of any category of traveler to the U.S., with the entire process typically taking 18-24 months, and containing multiple interviews and background checks before the individual actually arrives in the U.S.
Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen
If detained by Customs at a U.S. port of entry, do NOT sign Form I-407. Completing and signing this form will result in the abandonment of your status as a legal permanent resident. Request to speak with an attorney before signing any documents.
The immigration process to the U.S. already includes mandatory interviews, and ideology-related screening questions. However this may be expanded and focused primarily on those from Muslim majority nations and those who have visited such nations.
The Executive Order does not detail final immigration plans, rather these holds have been put in place temporarily until final decisions can be made. It is unclear how long this may take and what the results may be. The Executive Order states that it can add additional countries to ban from entry to the U.S. at its discretion and at any time.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.