On January 27, 2017, President Trump signed an additional Executive Order related to immigration law, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Executive Order”). This is the third Executive Order related to immigration law and policy that President Trump has signed in his first week in office. The first Executive Order, “Border Security and Immigration Enforcement Improvements,” and the second Executive Order, “Enhancing Public Safety in the Interior of the United States,” were analyzed in a previous client alert.
Soon after the Executive Order was signed, the American Civil Liberties Union (“ACLU”) filed a lawsuit in federal court seeking injunctive relief, which was partially granted by the U.S. District Court for the Eastern District of New York on January 28, 2017. A similar court order was issued by the U.S. District Court for the District of Massachusetts the next day.
The “Muslim Ban”
The Executive Order places travel restrictions into the United States on persons who are nationals of Iraq, Iran, Libya, Syria, Yemen, Sudan, and Somalia, which are Muslim-majority countries. The suspension of travel applies to those who are: 1) in the process of obtaining immigrant or non-immigrant visas; 2) those who currently have non-immigrant visas; and 3) those who are immigrants, also known as green card holders or lawful permanent residents.
While the travel suspension is set to occur for a 90 day period, there are additional provisions in the Executive Order that foreshadow an indefinite suspension for nationals of those countries. The following steps are to be taken before travel can resume:
- The Secretary of the Department of Homeland Security (“the Secretary”) will consult with the Secretary of State and the Director of National Intelligence to submit a report within 30 days on a list of countries who do not provide “adequate information” on their citizens seeking admission, visa, or benefit to enter the United States. The information requested from the countries needs to be “adequate to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.”
- After the 30-day period and upon receipt of the report, the Secretary of State shall request “all foreign governments that do not supply such information” to provide such information regarding their nationals within 60 days of the notice.
- After the 60-day period expires, the Secretary will report to the President which countries have not complied with the notice and whether nationals from those countries should continue to be excluded from entry.
- Additional countries can continue to be added to the list by the Secretary of State or Secretary of Homeland Security.
- Notwithstanding the suspension, entry may be granted to foreign nationals from those countries on a “case-by-case basis” by the Secretaries of State or Homeland Security.
It is expected that, based on our current diplomatic relationships with the above-mentioned countries, the named countries will not comply with the program requirements. Additional countries that are added to the exclusion list will be included in future client alerts.
Suspension Of U.S. Refugee Admissions Program
In addition to the banned entry of nationals from the above-mentioned countries, the Executive Order suspends the U.S. Refugee Admissions Program (“USRAP”) for 120 days until “additional procedures can be taken to ensure that those approved for refugee admission do not pose a threat to the safety and welfare of the United States.” While refugees may be admitted following the 120-day suspension, President Trump indicated that all refugee processing and admittance of nationals from Syria will discontinue until he has “determined that sufficient changes have been made to USRAP to ensure its alignment with the national interest.” Effectively, all refugee admissions from Syria will discontinue for an indefinite period of time.
Further changes to USRAP are made through the Executive Order. After USRAP is re-implemented, the total admittance of refugees for the rest of the fiscal year will be capped at 50,000. So far this fiscal year, 26,000 refugees have been admitted into the United States.
Finally, the Secretaries of State and Homeland Security are directed to prioritize refugee claims based on “religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
Federal Court Lawsuits
On Saturday, January 28, the ACLU filed a federal lawsuit in the U.S. District Court for the Eastern District of New York seeking an injunction of the Executive Order. The ACLU represents two Iraqi nationals, one of whom was granted lawful permanent residence (“green card”) and the other whom was granted a visa. Both Iraqi nationals were detained at John F. Kennedy Airport (“JFK”) on January 27 based on the Executive Order. U.S District Judge Ann M. Donnelly granted portions of the ACLU’s Emergency Motion, determining that there would be “substantial and irreparable injury” to the nationals identified by the Executive Order if a stay was not issued.
A similar lawsuit was filed by the ACLU of Massachusetts in the U.S. District Court for the District of Massachusetts, in which they represented two Iranian nationals with green cards. Two federal district judges, Judge Allison D. Burroughs and Judge Judith Dein, jointly granted a stay, similar to that of New York, on January 29. U.S. Customs and Border Protection, a subagency of the Department of Homeland Security, issued a statement that it will “continue to enforce all of President Trump’s Executive Orders,” but will also “comply with judicial orders.” Further, on January 29, the Secretary of Homeland Security, John Kelly, issued a statement that lawful permanent residents from the named countries would be permitted entry into the United States as it is in “the national interest.”
Additional clarification from the Administration is needed regarding how the Executive Order relates to those individuals who hold dual nationality with one of the seven countries listed; whether it will impact those nationals seeking an immigration benefit who are currently in the United States; and given the federal court orders, whether refugees from the seven listed countries will be permitted entry into the United States.
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