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Top Philippine Diplomat Perfecto Yasay Ousted Over U.S. Citizenship Controversy

Posted: 3:02 am ET

 

We have a second post on the Philippines, today.  On March 8, the country’s Commission of Appointments (CA) rejected the nomination of Perfecto Yasay Jr. as Secretary of Foreign Affairs. According to CNN, the committee unanimously decided to reject Yasay’s nomination “for lying under oath and that he failed to declare his U.S. citizenship in 1986.”

We’ve listed the FAM citations for renunciation of U.S.citizenship and loss of nationality in the links below. This should be an interesting case study.

Related items:

7 FAM 1280 | LOSS OF NATIONALITY AND TAKING UP A POSITION IN A FOREIGN GOVERNMENT

7 FAM 1260  | RENUNCIATION OF U.S. CITIZENSHIP ABROAD

7 FAM 1220  | DEVELOPING A LOSS-OF-NATIONALITY CASE

7 FAM 1200 APPENDIX B  | U.S. SUPREME COURT DECISIONS ON LOSS OF NATIONALITY

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Trump Revokes Travel Ban EO, Reissues New Executive Order For Six Muslim Countries Minus Iraq

Posted: 1:50  am ET

 

On March 6, President Trump issued a new Executive Order that revoked the January 27 order, reissued the ban for the same six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen, with Iraq excepted.   This new EO has been discussed in detail elsewhere but we just want to note that Section 10 of the new EO talks about “Visa Validity Reciprocity” and how the “Secretary of State shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees.”

The United States charges a reciprocal visa issuance fee when a U.S. visa is issued. For example, a Brazilian issued an H1B visa will be charged $100 for a multiple entry, 24 month-visa. Or a Burmese citizen traveling as a tourist to the United States will be charged $32 for a one entry, 3 month validity visa. U.S. citizens traveling to Brazil or Burma will be issued reciprocal validity visas and pay the corresponding visa issuance fees.  These fees are based on the principle of  reciprocity:  when a foreign government imposes fees on U.S. citizens for certain types of visas, the United States will impose a reciprocal fee on citizens of that country for similar types of visas.  But the visa issuance fee which affect a small number of countries/types of visas is not the only fee the the United States charges foreign travelers.

In addition to the reciprocity visa issuance fee that the U.S. charges, it also  collects a visa application fee, also known as the MRV fee. This is a nonrefundable fee paid by most applicants for U.S. visas, whether the application is approved or refused. It covers the costs associated with processing a U.S. visa application.  In FY2015, the U.S. processed 14,013,695 visa applications. Multiply that with the typical MRV fee of $160 for each applicant and that’s revenue of approximately $2.2 billion.

So … how soon before the rest of the world starts charging Americans processing fees in addition to whatever reciprocal visa issuance fees are in the books? And who’s looking at visa workload projection for this fiscal year? What number and fees are we looking at for a big dip?

Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States

EXECUTIVE ORDER

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PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1.  Policy and Purpose. 

(a)  It is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals.  The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States.  It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP.

(b)  On January 27, 2017, to implement this policy, I issued Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States).

(i)    Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries:  Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  These are countries that had already been identified as presenting heightened concerns about terrorism and travel to the United States.  Specifically, the suspension applied to countries referred to in, or designated under, section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), in which Congress restricted use of the Visa Waiver Program for nationals of, and aliens recently present in, (A) Iraq or Syria, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence.  In 2016, the Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern for travel purposes, based on consideration of three statutory factors related to terrorism and national security:  “(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States; (II) whether a foreign terrorist organization has a significant presence in the country or area; and (III) whether the country or area is a safe haven for terrorists.”  8 U.S.C. 1187(a)(12)(D)(ii).  Additionally, Members of Congress have expressed concerns about screening and vetting procedures following recent terrorist attacks in this country and in Europe.

(ii)   In ordering the temporary suspension of entry described in subsection (b)(i) of this section, I exercised my authority under Article II of the Constitution and under section 212(f) of the INA, which provides in relevant part:  “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”  8 U.S.C. 1182(f).  Under these authorities, I determined that, for a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into the United States of certain aliens from the seven identified countries — each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States — would be detrimental to the interests of the United States.  Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to grant case-by-case waivers when they determined that it was in the national interest to do so.

(iii)  Executive Order 13769 also suspended the USRAP for 120 days.  Terrorist groups have sought to infiltrate several nations through refugee programs.  Accordingly, I temporarily suspended the USRAP pending a review of our procedures for screening and vetting refugees.  Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to jointly grant case-by-case waivers when they determined that it was in the national interest to do so.

(iv)   Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion.  While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion.  That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities — whoever they are and wherever they reside — to avail themselves of the USRAP in light of their particular challenges and circumstances.

(c)  The implementation of Executive Order 13769 has been delayed by litigation.  Most significantly, enforcement of critical provisions of that order has been temporarily halted by court orders that apply nationwide and extend even to foreign nationals with no prior or substantial connection to the United States.  On February 9, 2017, the United States Court of Appeals for the Ninth Circuit declined to stay or narrow one such order pending the outcome of further judicial proceedings, while noting that the “political branches are far better equipped to make appropriate distinctions” about who should be covered by a suspension of entry or of refugee admissions.

(d)  Nationals from the countries previously identified under section 217(a)(12) of the INA warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats.  Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.  Any of these circumstances diminishes the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States.  Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States.  Finally, once foreign nationals from these countries are admitted to the United States, it is often difficult to remove them, because many of these countries typically delay issuing, or refuse to issue, travel documents.

(e)  The following are brief descriptions, taken in part from the Department of State’s Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:

(i)    Iran.  Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq.  Iran has also been linked to support for al-Qa’ida and has permitted al-Qa’ida to transport funds and fighters through Iran to Syria and South Asia.  Iran does not cooperate with the United States in counterterrorism efforts.

(ii)   Libya.  Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals.  In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions.  Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country.  The Libyan government provides some cooperation with the United States’ counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters.  The United States Embassy in Libya suspended its operations in 2014.

(iii)  Somalia.  Portions of Somalia have been terrorist safe havens.  Al-Shabaab, an al-Qa’ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries.  Somalia has porous borders, and most countries do not recognize Somali identity documents.  The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.

(iv)   Sudan.  Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas.  Historically, Sudan provided safe havens for al-Qa’ida and other terrorist groups to meet and train.  Although Sudan’s support to al-Qa’ida has ceased and it provides some cooperation with the United States’ counterterrorism efforts, elements of core al-Qa’ida and ISIS-linked terrorist groups remain active in the country.

(v)    Syria.  Syria has been designated as a state sponsor of terrorism since 1979.  The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country.  At the same time, Syria continues to support other terrorist groups.  It has allowed or encouraged extremists to pass through its territory to enter Iraq.  ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States.  The United States Embassy in Syria suspended its operations in 2012.  Syria does not cooperate with the United States’ counterterrorism efforts.

(vi)   Yemen.  Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition.  Both ISIS and a second group, al-Qa’ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks.  Weapons and other materials smuggled across Yemen’s porous borders are used to finance AQAP and other terrorist activities.  In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country.  Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.

(f)  In light of the conditions in these six countries, until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high.  Accordingly, while that assessment is ongoing, I am imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers, as described in section 3 of this order.

(g)  Iraq presents a special case.  Portions of Iraq remain active combat zones.  Since 2014, ISIS has had dominant influence over significant territory in northern and central Iraq.  Although that influence has been significantly reduced due to the efforts and sacrifices of the Iraqi government and armed forces, working along with a United States-led coalition, the ongoing conflict has impacted the Iraqi government’s capacity to secure its borders and to identify fraudulent travel documents.  Nevertheless, the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment for Iraq.  In particular, those Iraqi government forces that have fought to regain more than half of the territory previously dominated by ISIS have shown steadfast determination and earned enduring respect as they battle an armed group that is the common enemy of Iraq and the United States.  In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal.  Decisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.

(h)  Recent history shows that some of those who have entered the United States through our immigration system have proved to be threats to our national security.  Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States.  They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees.  For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses.  And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction as part of a plot to detonate a bomb at a crowded Christmas-tree-lighting ceremony in Portland, Oregon.  The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.

(i)  Given the foregoing, the entry into the United States of foreign nationals who may commit, aid, or support acts of terrorism remains a matter of grave concern.  In light of the Ninth Circuit’s observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.

Sec. 2.  Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. 

(a)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.  The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.

(b)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order.  The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.

(c)  To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States.  I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.

(d)  Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the Secretary of State shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification.

(e)  After the period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.  The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.

(f)  At any point after the submission of the list described in subsection (e) of this section, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend should be removed from the scope of a proclamation described in subsection (e) of this section.

(g)  The Secretary of State and the Secretary of Homeland Security shall submit to the President a joint report on the progress in implementing this order within 60 days of the effective date of this order, a second report within 90 days of the effective date of this order, a third report within 120 days of the effective date of this order, and a fourth report within 150 days of the effective date of this order.

Sec. 3.  Scope and Implementation of Suspension.

(a)  Scope.  Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who:

(i)    are outside the United States on the effective date of this order;

(ii)   did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and

(iii)  do not have a valid visa on the effective date of this order.

(b)  Exceptions.  The suspension of entry pursuant to section 2 of this order shall not apply to:

(i)    any lawful permanent resident of the United States;

(ii)   any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;

(iii)  any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;

(iv)   any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;

(v)    any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or

(vi)   any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

(c)  Waivers.  Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner’s delegee, may, in the consular officer’s or the CBP official’s discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest.  Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa, but will leave all other requirements for admission or entry unchanged.  Case-by-case waivers could be appropriate in circumstances such as the following:

(i)     the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity;

(ii)    the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;

(iii)   the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;

(iv)    the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;

(v)     the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;

(vi)    the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;

(vii)   the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;

(viii)  the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or

(ix)    the foreign national is traveling as a United States Government-sponsored exchange visitor.

Sec. 4.  Additional Inquiries Related to Nationals of Iraq. 

An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, as appropriate, consultation with a designee of the Secretary of Defense and use of the additional information that has been obtained in the context of the close U.S.-Iraqi security partnership, since Executive Order 13769 was issued, concerning individuals suspected of ties to ISIS or other terrorist organizations and individuals coming from territories controlled or formerly controlled by ISIS.  Such review shall include consideration of whether the applicant has connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS, as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or otherwise threaten the national security or public safety of the United States.

Sec. 5.  Implementing Uniform Screening and Vetting Standards for All Immigration Programs.  

(a)  The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry.  This program shall include the development of a uniform baseline for screening and vetting standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.

(b)  The Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Director of National Intelligence, shall submit to the President an initial report on the progress of the program described in subsection (a) of this section within 60 days of the effective date of this order, a second report within 100 days of the effective date of this order, and a third report within 200 days of the effective date of this order.

Sec. 6.  Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017.  

(a)  The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section.  During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.  The suspension described in this subsection shall not apply to refugee applicants who, before the effective date of this order, have been formally scheduled for transit by the Department of State.  The Secretary of State shall resume travel of refugees into the United States under the USRAP 120 days after the effective date of this order, and the Secretary of Homeland Security shall resume making decisions on applications for refugee status only for stateless persons and nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that the additional procedures implemented pursuant to this subsection are adequate to ensure the security and welfare of the United States.

(b)  Pursuant to section 212(f) of the INA, I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any entries in excess of that number until such time as I determine that additional entries would be in the national interest.

(c)  Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States, including in circumstances such as the following:  the individual’s entry would enable the United States to conform its conduct to a preexisting international agreement or arrangement, or the denial of entry would cause undue hardship.

(d)  It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees.  To that end, the Secretary of State shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.

Sec. 7.  Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility.  The Secretary of State and the Secretary of Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority permitted by section 212(d)(3)(B) of the INA, 8 U.S.C. 1182(d)(3)(B), relating to the terrorism grounds of inadmissibility, as well as any related implementing directives or guidance.

Sec. 8.  Expedited Completion of the Biometric Entry-Exit Tracking System.

 (a)  The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry‑exit tracking system for in-scope travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.

(b)  The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive set forth in subsection (a) of this section.  The initial report shall be submitted within 100 days of the effective date of this order, a second report shall be submitted within 200 days of the effective date of this order, and a third report shall be submitted within 365 days of the effective date of this order.  The Secretary of Homeland Security shall submit further reports every 180 days thereafter until the system is fully deployed and operational.

Sec. 9.  Visa Interview Security.  

(a)  The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.  This suspension shall not apply to any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of conducting meetings or business with the United States Government.

(b)  To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that nonimmigrant visa-interview wait times are not unduly affected.

Sec. 10.  Visa Validity Reciprocity.  The Secretary of State shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment.  If another country does not treat United States nationals seeking nonimmigrant visas in a truly reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by that foreign country, to the extent practicable.

Sec. 11.  Transparency and Data Collection.  

(a)  To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available the following information:

(i)    information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other national-security-related reasons;

(ii)   information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States;

(iii)  information regarding the number and types of acts of gender-based violence against women, including so-called “honor killings,” in the United States by foreign nationals; and

(iv)   any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.

(b)  The Secretary of Homeland Security shall release the initial report under subsection (a) of this section within 180 days of the effective date of this order and shall include information for the period from September 11, 2001, until the date of the initial report.  Subsequent reports shall be issued every 180 days thereafter and reflect the period since the previous report.

Sec. 12.  Enforcement. 

(a)  The Secretary of State and the Secretary of Homeland Security shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of the actions directed in this order.

(b)  In implementing this order, the Secretary of State and the Secretary of Homeland Security shall comply with all applicable laws and regulations, including, as appropriate, those providing an opportunity for individuals to claim a fear of persecution or torture, such as the credible fear determination for aliens covered by section 235(b)(1)(A) of the INA, 8 U.S.C. 1225(b)(1)(A).

(c)  No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.

(d)  Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry.  Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.

(e)  This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture.  Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.

Sec. 13.  Revocation.  Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.

Sec. 14.  Effective Date.  This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017.

Sec. 15.  Severability. 

(a)  If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other persons or circumstances shall not be affected thereby.

(b)  If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements.

Sec. 16.  General Provisions. 

(a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

 

DONALD J. TRUMP

THE WHITE HOUSE,
March 6, 2017.

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IRS to Start Certifying Unpaid Taxes of $50K+ in Early 2017 For Revocation/Denial of US Passports

Posted: 1:16 am  ET

 

In December 2015, we reported in this blog  about the “Fixing America’s Surface Transportation Act,” or “FAST Act.” One item included in the FAST Act, which had been signed into law, affects the State Department and the traveling American public. Section 7345 provides for the revocation or denial of U.S. passports to applicants with certain tax delinquencies considered ‘seriously delinquent tax debt’ –that is, a tax liability that has been assessed, which is greater than $50,000 and a notice of lien has been filed. (see New Law Authorizes Revocation or Denial of U.S. Passports to Certain Tax Delinquents).

A recent IRS notice says that the agency has not yet started certifying tax debt to the State Department but that such certifications will begin in early 2017. The website here currently provides information “for informational purposes only” but will be updated to indicate when the process has been implemented. Excerpt:

If you have seriously delinquent tax debt, IRC § 7345 authorizes the IRS to certify that to the State Department. The department generally will not issue or renew a passport to you after receiving certification from the IRS.

Upon receiving certification, the State Department may revoke your passport. If the department decides to revoke it, prior to revocation, the department may limit your passport to return travel to the U.S.

Certification Of Individuals With Seriously Delinquent Tax Debt

Seriously delinquent tax debt is an individual’s unpaid, legally enforceable federal tax debt totaling more than $50,000* (including interest and penalties) for which a:

–Notice of federal tax lien has been filed and all administrative remedies under IRC § 6320 have lapsed or been exhausted or

–Levy has been issued

Some tax debt is not included in determining seriously delinquent tax debt even if it meets the above criteria. It includes tax debt:

–Being paid in a timely manner under  an installment agreement entered into with the IRS

–Being paid in a timely manner under an offer in compromise accepted by the IRS or a settlement agreement entered into with the Justice Department

–For which a collection due process hearing is timely requested in connection with a levy to collect the debt

–For which collection has been suspended because a request for innocent spouse relief under IRC § 6015 has been made

Before denying a passport, the State Department will hold your application for 90 days to allow you to:

–Resolve any erroneous certification issues

–Make full payment of the tax debt

–Enter into a satisfactory payment alternative with the IRS

There is no grace period for resolving the debt before the State Department revokes a passport.

Read more here: https://www.irs.gov/businesses/small-businesses-self-employed/revocation-or-denial-of-passport-in-case-of-certain-unpaid-taxes.

Note that the passport denial for individuals who owe more than $2500 in past-due child support, based on a certification by the responsible State child-support agency to the Department of Health and Human Services (HHS) has been challenged and upheld in two cases before Federal courts: Eunique v. Powell, 281 F.3d 940, 2002 (9th Cir. Cal. 2002 – statute does not violate Fifth Amendment freedom to travel internationally); Weinstein v. Albright, 261 F.3d 127; 2001 (2nd Cir. 2001 – statutory and regulatory scheme comports with due process and equal protection).

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Trump EO Results in Provisional Revocations of Valid Visas, Chaos For Dual Nationals

Posted: 1:38 am ET

 

On January 27, President Trump signed an executive order suspending the entry of refugees to the United States for FY2017 for 120 days. The E.O also proclaimed the entry of certain aliens as “detrimental to the interests of the United States” and declared the suspension of their entry into the United States for 90 days.  The aliens referred to are from countries cited under Section 217(a)(12) of the INA, 8 U.S.C.1187(a)(12) according to the executive order.  These are the same countries cited under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015: Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen.

Urgent Notice

The State Department issued an urgent notice on January 27:

Per the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals signed on January 27, 2017, visa issuance to nationals of the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen has been suspended effective immediately until further notification. If you are a citizen of one of these countries, please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please DO NOT ATTEND. You will not be permitted entry to the Embassy/Consulate. We will announce any other changes affecting travelers to the United States as soon as that information is available.

Provisional Revocations

It appears that not only has the U.S. Government suspended the entry and processing of visas for this seven Muslim-majority countries, it also made the State Department “provisionally revoked” (with exceptions) the valid visas issued to citizens from these seven countries. If the travel ban is lifted after 90 days, the rules allow for the reinstatement of visas, presumably with whatever “extreme vetting” the government will have in place by then.

Provisional revocation via the Federal Register:

In cases where the person subject to a provisional revocation is found to be eligible for the visa, the visa will be reinstated with no need for reapplication. However, with the exception of provisional revocations, an applicant whose visa has been revoked must apply for another visa, at which time his or her eligibility for the visa will be adjudicated.

Questions for the State Department

We asked the State Department how the EO affects dual-nationals, green card holders and travelers from these seven countries.  We also asked previously if travelers issued visas on the day the EO was issued now expect that those visas no longer have validity. We wanted to know if consular posts are canceling all visa appointments/refunding all visa application fees from applicants in the affected countries. We requested an estimate of how many applicants were in the pipeline when the ban took effect.

We get to ask our questions but we don’t always get the response we need. For travelers who are nationals/dual-nationals of the seven countries, a State Department official speaking on background offered the following:

Beginning January 27, 2017, travelers who have nationality or dual nationality of one of these countries [Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen] will not be permitted for 90 days to enter the United States or be issued an immigrant or nonimmigrant visa.

Those nationals or dual nationals holding valid immigrant or nonimmigrant visas will not be permitted to enter the United States during this period. Visa interviews will generally not be scheduled for nationals of these countries during this period.

So the suspension affects not only the entry to the U.S. but also the issuance of immigrant (green card) and nonimmigrant (temporary) visas. An SBU cable reportedly went out to all posts last Saturday explaining the executive order.  The State Department official says, “As we would for any operational change, we communicated instructions to our consulates in affected countries and around the world.”

The State Department official cites an exception to the ban on a “case-by-case” basis and when “in the national interest.”

The Department of Homeland Security and Department of State may, on a case-by-case basis, and when in the national interest, issue visas or allow entry to nationals of countries for which visas and entry are otherwise blocked under this Executive Order.

Asked specifically about dual-nationals, the State Department official only notes about dual-national Americans:

This Executive Order should not affect dual-nationality Americans at all. U.S. citizens (although they might also have another nationality) are required to use their U.S. passport when entering and departing the United States. They do not receive visas or enter the U.S. as a foreign national, so this Executive Order does not apply to them.

The EO clearly does not apply to American citizens but it appears to be a different story in our airport terminals:

We also asked the State Department about third country dual nationals with the seven countries, for instance Canadian-Iranians or British-Iraqi citizens.  The State Department directed us to check with Homeland Security. As of this writing, we have not heard a response. Meanwhile, the chaos continue.

Israeli Dual Nationals With Seven Restricted Countries

The US Embassy in Tel Aviv posted the following message which contradicts the information we received from the State Department on dual nationals:

Travelers with an existing valid visa in their Israeli passport may travel to the United States, even if they are also a national of or born in one of the seven restricted countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen). Embassy Tel Aviv will continue to process visa applications and issue visas to eligible visa applicants who apply with an Israeli passport, even if born in, or a dual national of, one of the seven restricted countries. Final authorization to enter the United States is always determined at the port of entry.

 

UK Dual Nationals With Seven Restricted Countries

The US Embassy in London said that “Dual nationals of the United Kingdom and one of these countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa.” But the UKFCO has additional guidelines that seems to indicate point of origin as a factor, too, which adds to more confusion:

  • the Presidential executive order only applies to individuals travelling from one of the 7 named countries
  • if you are travelling to the US from anywhere other than one of those countries (for instance, the UK) the executive order does not apply to you and you will experience no extra checks regardless of your nationality or your place of birth
  • if you are a UK national who happens to be travelling from one of those countries to the US, then the order does not apply to you – even if you were born in one of those countries
  • if you are a dual citizen of one of those countries travelling to the US from OUTSIDE those countries then the order does not apply to you
  • The only dual nationals who might have extra checks are those coming from one of the 7 countries themselves – for example a UK-Libya dual national coming from Libya to the US.

Canadian Dual Nationals With Seven Restricted Countries

Media reports citing DHS and the State Department says that dual nationals with the seven countries will be refused entry. This is the same thing we were told.   Meanwhile, the Canadian Ambassador to the US said exactly the opposite. Canadian PM Justin Trudeau on Twitter also release a statement citing confirmation from NSA Mike Flynn that Canadian citizens including dual citizens will not be affected by the ban.

Welcome to big time confusion and chaos!

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Trump EO Also Suspends Visa Interview Waivers – Expect Long Visa Wait Times, Again

Posted: 10:28 am  PT

 

In 2012, then President Obama issued an Executive Order on Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness, which among other things, “ensure that 80 percent of nonimmigrant visa applicants are interviewed within 3 weeks of receipt of application, recognizing that resource and security considerations and the need to ensure provision of consular services to U.S. citizens may dictate specific exceptions”.  The Obama EO directed a plan that “should also identify other appropriate measures that will enhance and expedite travel to and arrival in the United States by foreign nationals, consistent with national security requirements.” In 2012, an Interview Waiver Pilot Program (IWPP) was introduced for for low-risk visa applicants. It became was made permanent in 2014, and became the Visa Interview Waiver Program (VIWP).

According to congressional testimonies, there are 222 visa-issuing embassies and consulates where “highly-trained corps of consular officers and support staff process millions of visa applications each year, facilitating legitimate travel while protecting our borders.”  In FY2015, overseas posts issued over 10.8 million nonimmigrant visas. That number is only a partial picture of the workload as it does not include visa refusals, a number that is significantly higher than visa issuances.

Section 8 of President Trump’s Executive Order: Protecting the Nation From Foreign Terrorist Entry into the United States refers to the immediate suspension of visa interview waivers specifically, the VIWP, and imposes a requirement that all nonimmigrant visa applicants, with exceptions, undergo in-person interviews.

Sec . 8 . Visa Interview Security

(a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.

(b)  To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected.

We understand that the current Visa Interview Waiver Program (VIWP) was “carefully crafted”, and rolled out in consultation with the Congress. It was designed not/not to go back to pre-911 situation but to facilitate travel in cases of no discernable risk.

Here is what the Consular Affairs bureau told Congress:

Since 9/11, a risk-based approach grounded on greater and more effective domestic and international information sharing has become a key principle of visa processing policy.  This approach enables the United States to channel more resources toward the prevention of high-risk travel while simultaneously increasing the number of legitimate visitors arriving by land, air, and sea.  The Electronic System for Travel Authorization (ESTA) prescreening process for Visa Waiver Program (VWP) travelers, international information sharing arrangements, Global Entry, which expedites the movement of low-risk, frequent travelers who proceed directly to automated kiosks upon arrival in the United States, and interagency counterterrorism and eligibility checks are examples of how U.S. agencies can use information collected from visitors and/or governments in advance of travel to accomplish complimentary and mutually re-enforcing goals of preventing terrorists and serious criminals from traveling to the United States while facilitating the entry of legitimate visitors.

We asked the State Department about the suspension of the VIWP and its impact on visa operations. We were interested in the number of applicants who used the Visa Interview Visa Program for the last fiscal year.  In trying to get a sense of the impact of the new EO on visa operations, we also were interested on number of consular officers in visa sections worldwide.

Our question is in general staffing terms not specific to any posts, nonetheless, a State Department official on background declined to discuss staffing levels or the number of officers working at any embassy or consulate.  However, the SDO  did provided the following information:

The Executive Order suspends previously authorized portions of the Interview Waiver Program. The Interview Waiver Program will continue for certain diplomatic and official visa applicants from foreign governments and international organizations (categories: A-1, A-2, G-1, G-2, G-3, G-4, NATO-1 through -6, C-2 and C-3) applicants under the age of 14, or over the age of 79; and applicants who previously held a visa in the same category that expired less than 12 months prior to the new application. As always, a consular officer must require that any applicant appear for an in-person interview in any situation where information provided on the application or during the screening process indicates any reason for further questioning. All visa applications, including those cases above, for which the visa interview is waived, are subject to the same rigorous security screening.

Previously, applicants renewing their visas in the same category within 48 months of expiration were eligible for their interview to be waived, as were first-time Brazilian and Argentine applicants ages 14-15 and 66-79.

We don’t know what is the current number but in 2013, Brazilian visitors contributed $10.5 billion to the U.S. economy, a 13 percent increase from the prior year.

Background of the Visa Interview Waiver Program (VIWP)

In January 2012, the Department and the Department of Homeland Security (DHS) initiated the two-year Interview Waiver Pilot Program (IWPP) to streamline processing for low-risk visa applicants.  The worldwide pilot program allows consular officers to waive in-person interviews for certain nonimmigrant visa applicants who were previously interviewed and thoroughly screened in conjunction with a prior visa application, and who are renewing a previous visa within four years of its expiration.  The pilot program also allows consular officers to waive interviews for qualified Brazilian applicants falling into specific age ranges, even when applying for visas for the first time.

All IWPP applications are thoroughly reviewed by a commissioned consular officer, with the applicant’s fingerprints, photograph, and biodata undergoing extensive database checks.  Consular officers have been directed to require an interview for any applicant who might otherwise qualify for the IWPP, if the application is not immediately approvable upon paper review, including if database checks reveal potential grounds of inadmissibility or other possible concerns.  State concluded an August 2013 validation study of the IWPP, which showed that B1/B2 visa issuances under the IWPP present no greater risk of overstay than interview-based B1/B2 visa issuances.

In 2013, State/CA’s congressional testimony indicates that “more than 90 percent of applicants worldwide were interviewed within three weeks of submitting their applications.”  This includes key markets such as China where consular officers were able to keep interview wait times to an average of five days while managing an average annual workload increase of 23 percent over the past three years.  In Brazil, consular officers were able to bring down wait times by 98 percent, from a high of 140 days in São Paulo, to just two days in September 2013, while also managing an eleven percent jump in annual workload between 2011 and 2013. These results were partially attributed to the VIWP:

The Department’s success is partially attributable to the introduction of secure, streamlined processes such as the Interview Waiver Pilot Program (IWPP), which allows consular officers to waive in-person interviews for certain nonimmigrant visa applicants who are renewing their visas, and whose biometric data we have on file.  IWPP is operational at more than 90 visa processing posts in more than 50 countries, and consular officers have already waived interviews for more than 500,000 of these low-risk visa applicants.  The pilot has been particularly successful in China, where it constitutes 30 percent of Mission China’s visa renewal workload.  Of course, these applicants are subject to all of the security checks conducted for any interviewed applicant.  State also concluded an August 2013 validation study of the IWPP, which showed that B1/B2 visa issuances under the IWPP present no greater risk of overstay than interview-based B1/B2 visa issuances.

One of the most effective ways we have to improve the efficiency of visa operations is to eliminate in-person interviews for low-risk travelers, while retaining all of the security checks that apply to every visa applicant.  Although the Immigration and Nationality Act (INA) requires our consular officers to interview in-person all visa applicants aged 14 through 79, it also provides limited authority to waive interviews, including authority to waive for diplomatic and official applicants from foreign governments and for some repeat applicants.  We are utilizing technology and advanced fraud detection techniques to help us expand the pool of applicants for whom interviews can be waived under the Interview Waiver Program.  This allows us to focus resources on higher-risk visa applicants while facilitating travel for low-risk applicants.

We are working with our colleagues across the government to expand this successful program, which became permanent in January 2014.  In fiscal year 2013, we waived over 380,000 interviews, and a recent study showed that tourist and business visitor visa holders whose interviews were waived, all of whom were subject to the full scope of security checks, posed no greater risk for an overstay than those who were interviewed.  We are interested in explicit legislative authority to supplement the existing Interview Waiver Program by adding additional low-risk applicant groups such as citizens of Visa Waiver Program members applying for other types of visas such as student or work visas; continuing students moving to a higher level of education; non-U.S. citizen Global Entry and NEXUS trusted traveler program members; and holders of visas in other categories, such as students and workers, who wish to travel for tourism or business.  The Department is interested in working with Congress on legislation specifically authorizing the Secretaries of State and Homeland Security to enhance our interview waiver programs.

Since the VIWP is available in China and India, and many other countries with high visa demand, and includes visitor/business (B1-B2) visas, student (F) visas, and temporary worker’s (H1-B) visas, the workload impact on consular sections will be significant.  As more applicants require interviews, more interview windows will be needed, more consular officers will be needed, and larger facilities would become necessary.

By shutting down the IVWP, the Trump EO immediately expands the number of applicants that require in-person interviews. Section 8 (b) of the Trump EO also “immediately expand” the Consular Fellows Program, while a separate EO imposed a federal hiring freeze. Even if hiring is allowed under the Consular Fellows program, training new limited noncareer employees cannot occur overnight.

According to CA official’s congressional testimony, in 2014, 75 million international visitors traveled to the United States, a seven percent increase over 2013; they spent over $220 billion.  “Tourism is America’s largest services export and one that can’t be outsourced.” See current key numbers on US tourism in infographic below.

In FY 2014, Consular Affairs also generated $3.6 billion in revenue, which supports all consular operations in the Department and provides border security-related funding to some interagency partners. The CA bureau is probably the only fully fee-funded operation in the State Department.  It collects and retains fees for certain visa and passport services pursuant to specific statutory authority.  According to congressional testimony, the current fee statutes allow the bureau to retain approximately 80 percent of the fees it collects, with the balance going to the Treasury, which then help fund 12 other arms of the USG supporting border protection/national security.

 

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Trump EO: Executive Authority to Exclude Aliens and the Long Battle Ahead

Posted: 12:31  pm PT

 

On January 27, President Trump signed an executive order suspending the entry of refugees to the United States for FY2017 for 120 days. The E.O also proclaimed the entry of certain aliens as “detrimental to the interests of the United States” and declared the suspension of their entry into the United States for 90 days.  The aliens referred to are from countries cited under Section 217(a)(12) of the INA, 8 U.S.C.1187(a)(12) according to the executive order.  These are the same countries cited under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015: Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen. (see Trump Bars US Entry of Refugees, and Citizens, Green Card Holders From Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen).

On January 28, a federal court in New York granted a temporary injunction to the ACLU. Statement below:

A federal judge tonight granted the American Civil Liberties Union’s request for a nationwide temporary injunction that will block the deportation of all people stranded in U.S. airports under President Trump’s new Muslim ban. The ACLU and other legal organizations filed a lawsuit on behalf of individuals subject to President Trump’s Muslim ban. The lead plaintiffs have been detained by the U.S. government and threatened with deportation even though they have valid visas to enter the United States. Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project who argued the case, said: 

“This ruling preserves the status quo and ensures that people who have been granted permission to be in this country are not illegally removed off U.S. soil.”

Four days before this executive order was signed, the Congressional Research Service issued a brief on this topic which explains the broad power of the President under the Immigration and Nationality Act. Excerpt from the brief:

The Immigration and Nationality Act (INA) provides that individual aliens outside the United States are “inadmissible”—or barred from admission to the country—on health, criminal, security, and other grounds set forth in the INA. However, the INA also grants the Executive several broader authorities that could be used to exclude certain individual aliens or classes of aliens for reasons that are not specifically prescribed in the INA.

Section 212(f) of the INA is arguably the broadest and best known of these authorities. It provides, in relevant part, that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

The central statutory constraint imposed on Section 212(f)’s exclusionary power is that the President must have found that the entry of any alien or class of aliens would be “detrimental to the interests of the United States.”

The statute does not address:
(1) what factors should be considered in determining whether aliens’ entry is “detrimental” to U.S. interests;
(2) when and how proclamations suspending or restricting entry should be issued;
(3) what factors are to be considered in determining whether particular restrictions are “appropriate”; or
(4) how long any restrictions should last.

Congress, of course, can amend the INA to specifically address these factors. Sen Dianne Feinstein said on Twitter that she will introduce two bills with the first one to “immediately rescind” the executive order.  She also said that the second bill “limits executive authority under the Immigration and Nationality Act.” We’ll have to see where this goes. A companion bill has to be introduced in the House, and both chambers have to agree to it and all its amendments, pass it before it gets to the White House to be signed into law. We doubt it would go very far given the GOP hold on both houses and the White House, but we’ll see.

The CRS report also points to two other sections of the INA:

Beyond Section 212(f), other provisions of the INA can also be seen to authorize the Executive to restrict aliens’ entry to the United States. Most notably, Section 214(a)(1) prescribes that the “admission of any alien to the United States as a nonimmigrant shall be for such time and under such conditions as [the Executive] may by regulations prescribe.” Section 215(a)(1) similarly provides that “it shall be unlawful for any alien” to enter or depart the United States “except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” For example, President Carter cited Section 215(a)— rather than Section 212(f)—when authorizing the revocation of immigrant and nonimmigrant visas issued to Iranian citizens during the Iran Hostage Crisis.

The CRS brief lists the categories of aliens excluded under INA 212(f) going back to President Reagan. There are about 50 such orders but from best we could tell, they are all narrowly constructed restrictions unlike the Trump EO. For example:

On October 10, 1985, Reagan issued Proclamation 5377 “Suspending the entry of specified classes of Cuban nationals as nonimmigrants (e.g., officers or employees of the Cuban government or the Communist Party of Cuba holding diplomatic or official passports).”

On Dec. 14, 1993,  President Clinton issued Proclamation 6636 “Suspending the entry into the United States, as immigrants or nonimmigrants, of aliens who formulate, implement, or benefit from policies that impede Nigeria’s transition to democracy and their immediate family.”

On July 3, 2007, President George W. Bush issued Proclamation 8158 “Suspending the entry into the United States, as immigrants or nonimmigrants, of persons responsible for policies or actions that threaten Lebanon’s sovereignty and democracy (e.g., current or former Lebanese government officials and private persons who “deliberately undermine or harm Lebanon’s sovereignty”)”

On March 19, 2014, President Obama issued Executive Order 13661 “Suspending the entry into the United States, as immigrants or nonimmigrants, of aliens determined to have contributed to the situation in Ukraine in specified ways (e.g., officials of the government of the Russian Federation, or persons who operate in the arms or related materiel sector).”

 The CRS brief includes a discussion of judicial constructions of Section 212 (f): Sale v. Haitian Centers Council, Inc. about the U.S. practice of interdicting persons fleeing Haiti outside U.S. territorial waters, and United States ex rel. Knauff v. Shaughnessy, where the Court rejected a challenge to the exclusion of a German “war bride.”  In reviewing the court cases related to Section 212(f) INA, the CRS brief issued four days before the Trump EO was issued notes that “None of these decisions note any limitations upon the President’s power under Section 212(f). This silence could, however, be seen, in part, to reflect the arguably limited nature of the Executive’s use of its Section 212(f) authority to date.” Also this:

In no case to date, though, has the Executive purported to take certain types of action, such as barring all aliens from entering the United States for an extended period of time or explicitly distinguishing between categories of aliens based on their religion. Any such restrictions could potentially be seen to raise legal issues that were not raised by prior exclusions. For example, if the Executive were to seek to bar the entry of all aliens, as immigrants or nonimmigrants, for an extended time, questions could be raised about whether the President’s action was consistent with Congress’s intent in enacting statutes which prescribe criteria for the issuance of family- and employment-based immigrant and nonimmigrant visas and authorize the issuance of certain numbers of such visas each year.35 Similarly, if the President were to purport to exclude aliens based on their religion, an argument could potentially be made that this action is in tension with U.S. treaty obligations36 or the First Amendment.

No doubt this is just the beginning of a long battle in Congress and in U.S. courts. Of great interest perhaps to our readers is a legal look from Just Security’s ‘s Why Trump’s Executive Order on Refugees Violates the Establishment Clause and ‘s Why a Muslim Ban is Likely to be Held Unconstitutional: The Myth of Unconstrained Immigration Power

 

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On Invocation of Visa Sanctions For Countries Unwilling to Accept Their Deported Nationals

Posted: 3:27 am ET

 

On January 3, the State Department published 9 FAM 602.2 on the Discontinuation of Visa Issuance Under INA 243 (D) which provides that “upon being notified by the Secretary of Homeland Security that a government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the Secretary of Homeland Security notifies the Secretary of State that the country has accepted the alien.”

–> A discontinuation of visa issuance under INA 243(d) is based on an order issued by the Secretary of State to consular officers in a particular country to stop issuing visas pursuant to INA 243(d).  The Secretary may decide to order consular officers to discontinue issuing all visas in the country or a subset of visas.

–> Affected posts generally will be informed by cable which visa classifications or categories of visa applicants are subject to a discontinuation under INA 243(d) and when visa issuance must be discontinued.  When the Secretary orders discontinuation of visa issuance, the Visa Office will work with the relevant regional bureau and the affected post to provide specific guidance via cable.

Only one country, The Gambia, is currently subject to discontinuation of visa issuance under INA 243(d) though this might just be the start. There are potentially 85 countries that could be subject to a visa sanction based on their refusal in accepting their own nationals deported from the United States.  The FAM, at this time, does not include any guidance pertaining to immigrant visas.

In October last year, the State Department spokesperson said this about the visa sanction for The Gambia in the DPB:

As of October 1st, 2016, the United States and Banjul, The Gambia, has discontinued visa issuance to employees of the Gambian government, employees of certain entities associated with the government, and their spouses and children, with limited exceptions. Under Section 243(d) of the Immigration and Nationality Act, when so requested by the Secretary of Homeland Security due to a particular country’s refusal to accept or unreasonably delay the return of its nationals, the Secretary of State must order consular officers to suspend issuing visas until informed by the Secretary of Homeland Security that the offending country has accepted those individuals.
[…] The Gambia is unique in that we have applied numerous tools on how to engage, but without any result. Some other countries have responded in some way or made partial efforts to address the deficiency; The Gambia has not. We have been seeking cooperation with the Government of The Gambia on the return of Gambian nationals for some time, from the working level up to the highest level, and we have exhausted diplomatic means to resolve this matter.

Last year, ICE Deputy Director Daniel Ragsdale also went before the House Committee on Oversight and Government Reform for a hearing on “Recalcitrant Countries: Denying Visas to Countries that Refuse to Take Back Their Deported Nationals”. Below is an excerpt from his prepared testimony which provides additional background for this issue:

The removal process is impacted by the level of cooperation offered by our foreign partners. As the Committee is aware, in order for ICE to effectuate a removal, two things are generally required: (1) an administratively final order of removal and (2) a travel document issued by a foreign government. Although the majority of countries adhere to their international obligation to accept the return of their citizens who are not eligible to remain in the United States, ICE faces unique challenges with those countries that systematically refuse or delay the repatriation of their nationals. Such countries are considered to be uncooperative or recalcitrant, and they significantly exacerbate the challenges ICE faces in light of the U.S. Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001).

In Zadvydas, the Court effectively held that aliens subject to final orders of removal may generally not be detained beyond a presumptively reasonable period of 180 days, unless there is a significant likelihood of removal in the reasonably foreseeable future. Regulations were issued in the wake of Zadvydas to allow for detention beyond that period in a narrow category of cases involving special circumstances, including certain terrorist and dangerous individuals with violent criminal histories. Those regulations have faced significant legal challenges in federal court. Consequently, ICE has been compelled to release thousands of individuals, including many with criminal convictions, some of whom have gone on to commit additional crimes.

23 countries considered “recalcitrant”, 62 countries with “strained cooperation”

Countries are assessed based on a series of tailored criteria to determine their level of cooperativeness with ICE’s repatriation efforts. Some of the criteria used to determine cooperativeness include: hindering ICE’s removal efforts by refusing to allow charter flights into the country; country conditions and/or the political environment, such as civil unrest; and denials or delays in issuing travel documents. This process remains fluid as countries become more or less cooperative. ICE’s assessment of a country’s cooperativeness can be revisited at any time as conditions in that country or relations with that country evolve; however, ICE’s current standard protocol is to reassess bi-annually. As of May 2, 2016, ICE has found that there were 23 countries considered recalcitrant, including: Afghanistan, Algeria, the People’s Republic of China, Cuba, Iran, Iraq, Libya, Somalia, and Zimbabwe. As a result of their lack of cooperation, ICE has experienced a significant hindrance in our ability to remove aliens from these countries. In addition, ICE is also closely monitoring an additional 62 countries with strained cooperation, but which are not deemed recalcitrant at this time.

DHS/ICE and State/CA: measures for dealing with uncooperative countries

Responses to a country’s recalcitrance are, in part, guided by a Memorandum of Understanding (MOU) between ICE and DOS Consular Affairs, signed in April 2011. Pursuant to this MOU, ICE continues to work through U.S. diplomatic channels to ensure that other countries accept the timely return of their nationals in accordance with international law by pursuing a graduated series of steps to gain compliance with the Departments’ shared expectations. The measures that may be taken when dealing with countries that refuse to accept the return of their nationals, as outlined in the 2011 MOU, include:

♦ issue a demarche or series of demarches;

♦ hold a joint meeting with the Ambassador to the United States, Assistant Secretary for Consular Affairs, and Director of ICE;

♦ consider whether to provide notice of the U.S. Government’s intent to formally determine that the subject country is not accepting the return of its nationals and that the U.S. Government intends to exercise authority under section 243(d) of the Immigration and Nationality Act (INA) to encourage compliance;

♦ consider visa sanctions under section 243(d) of the INA; and

♦ call for an interagency meeting to pursue withholding of aid or other funding.

A State Department official on background told us today that “facilitating the removal of aliens who are subject to a final order of removal, particularly those who pose a danger to national security or public safety, is a top priority for the Department of State.”  Also that the Department’s discontinuation of visa issuance this past October was “in response to the Gambia’s failure to issue travel documents for any individuals under final order for removal.” More:

When approaching a specific country, we consider all options at our disposal, taking into account the totality of national security and foreign policy equities that could be impacted.  In many cases, significant progress has been possible through intensive diplomatic engagement.  Taking into consideration each country’s specific situation and other important U.S. interests, we work with ICE to determine the course of action best suited to securing compliance from each government.

Since visa issuance is on reciprocal basis we wanted to know how this might affect America citizens in countries subjected to visa sanctions. Here is the official response:

Our goal is to achieve success without inciting retaliation that could hurt the U.S. in other ways.   Imposition of visa sanctions on a given country is one potentially powerful tool.  However, it is important to note that what works in one country may not be effective in another.  Some governments would prefer to have their citizens stay home rather than spend their money on U.S. hotels, airlines, and tourist attractions.  Others could retaliate in ways that could be detrimental to wider U.S. security concerns, such as law enforcement, military, or counter-terrorism cooperation.

 

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Mexico Arrests Suspect, Reportedly a US Citizen, in Shooting of US Diplomat in Guadalajara

Posted: 3:34 pm PT
Updated: 4:30 pm PT

 

Mexico’s Fiscalía General del Estado de Jalisco announced today that the suspect on Friday’s attack of a U.S. consular official from USCG Guadalajara had been arrested (see American Diplomat Wounded in Targeted Attack in #Guadalajara, Mexico). According to the state attorney general on Twitter, the suspect was handed over to Mexico’s federal attorney general’s office .

Secretary Kerry released the following statement on January 8:

On behalf of President Obama and the people of the United States, I want to thank the Government of Mexico for their swift and decisive arrest of a suspect in the heinous attack against our Foreign Service Officer colleague in Guadalajara, Mexico. The safety and security of U.S. citizens and our diplomatic staff overseas are among our highest priorities. My thoughts and prayers remain with this officer and his family during this difficult time. I wish him a speedy recovery.

The Guardian’s latest reporting on this incident cites a source within the Guadalajara police force who spoke on condition of anonymity, and identified the suspect as Zafar Zia, a 31-year-old American citizen (AmCit) of Indian origin.

The source said Zia was captured in a joint operation by the FBI, DEA and Jalisco state officials in Guadalajara’s affluent Providencia neighbourhood early on Sunday morning. The suspect had a .380 caliber pistol tucked into his waistband when he was arrested. The authorities also seized a Honda Accord with California license plates, a wig and sunglasses that may match those seen in footage of the shooting, and 16 ziplock bags containing 336 grams of a substance believed to be marijuana.

US Mission Mexico has declined to provide further information to the media about the shooting and declined to identify the employee or his position at the consulate general; information that is already widely reported in U.S. and Mexican media.

A separate news report says that the suspect had moved to Guadalajara in November 2016 from Phoenix and had been residing in the city since. The report also says that “the apparent motive for the attempted murder appears to have been a disagreement over an undisclosed visa process.” A local report confirms that the suspect has been residing in a farm in Colonia Prados Providencia for about two months. All the rooms on site were reportedly rented by students.

Consular officials have been screamed at, and spit on by rejected visa applicants, and there are obviously some very unhappy visa applicants but if this is true, this would be the first time since 2010 where an armed attack is tied to a visa office (see Three from US Consulate General Ciudad Juárez Dies in Drive-By Shooting). There was a time when all that separate a visa officer from a visa applicant is an open counter.  Easy to grab and physically attack a visa official or employee. We kind of recall that the hard line interview windows started going up in the early 80’s. Our go-to pal for this stuff told us that there were certainly incidents of client aggression and assaults in both visa and citizen services sections but believed that the interview window upgrade was just part of the larger hardline standard (i.e., putting forced-entry and ballistic protection between public areas and the general work area).

The U.S. Government has spent millions upgrading embassy security and beefing up security protection inside consular offices but this attack shows how vulnerable our people are overseas even when they are just going about the ordinary routines of daily life (going to a gym, using an ATM machine, driving a car, etc).  The latest GAO report on diplomatic security points out that the worst attacks against our diplomatic personnel actually occurs while they are in transit (see GAO Reviews @StateDept’s Efforts to Protect U.S. Diplomatic Personnel in Transit).

In any case, if true that the suspect is a U.S. citizen, a couple of thoughts: one, he would not have a need for a U.S. visa, unless it is for a fiancee/spouse or other family members of foreign origin.  We probably will hear more about this in the coming days. Two, as a U.S. citizen arrested in a foreign country, a U.S. consular officer assigned at the American Citizen Services branch in USCG Guadalajara would have to visit the suspect in jail; as U.S. consular officers do worldwide to ensure the fair and humane treatment for U.S. citizens imprisoned overseas.

We should note that the U.S. and Mexico has an extradition treaty that allows for the transfer of suspected or convicted criminals from one to country to the other. So this case might yet end up in a U.S. court. Latest update from AFP says that the suspect will be deproted deported back to the United States to face further legal action.

 

Meanwhile, USMission Mexico has released a Security Message urging precautions following the shooting in Guadalajara.

Related posts:

Employees of U.S. Consulate General Monterrey (a non-danger post) face credible security threat in Mexico Apr 2016
USCG Monterrey: USG Personnel Banned From Driving Between Post-U.S. Border, Also Extortions Up by 24%
US Mission Mexico: ICE Special Agents Killed/Wounded at Fake Roadblock on Road to Monterrey
New Mexico Travel Warning: “Authorized Departure” remains in place for Mexico’s northern border cities, Monterrey to go partially unaccompanied with no minor dependents
US ConGen Monterrey in Mexico Goes Unaccompanied
US Consulate General Monterrey personnel urged to keep kids at home following American School Shootout
Danger Danger, Bang Bang — State Department Eyes Changes in Danger Pay
New Danger Pay Differential Posts: See Gainers, Plus Losers Include One Post on Evacuation Status
Republicans got mad, mad, mad about danger pay, local guards, violence; calls for closures of consulates in Mexico
Snapshot: The State Department’s Danger Pay Locations (as of February 2015)
Mexican Border Consular Posts Get 15% Danger Pay
Where dangerous conditions are not/not created equal …
State Dept’s New High Threat Posts Are Not All Danger Posts

@StateDept Orders Evacuation of US Embassy Banjul Family Members From The #Gambia

Posted: 5:56 pm PT

 

On Saturday, January 7, the State Department ordered the departure of family members of USG employees assigned to the US Embassy Banjul, in The Gambia. It also authorized the departure of all employees who need to accompany those individuals from the country. The evacuation order comes with the new Travel Warning urging U.S. citizens against travel to The Gambia because of the potential for civil unrest and violence in the near future.

The U.S. Department of State warns U.S. citizens against travel to The Gambia because of the potential for civil unrest and violence in the near future.  On January 7, 2017, the Department of State ordered the departure of family members and authorized the departure of all employees who need to accompany those individuals from the country.

The security situation in The Gambia remains uncertain following December 1, 2016 presidential elections.  On January 10, the Supreme Court is scheduled to hear the current president’s petition contesting the election results, which is a potential flashpoint that could lead to civil unrest.  The sitting government has begun taking restrictive measures, which include shutting down and restricting radio stations, and making politically motivated arrests.  The Economic Community of West African States (ECOWAS) has stated it may intervene if the president does not step down by January 18.

U.S. citizens should consider departing on commercial flights and other transportation options now, as airports and ferry terminals may close unexpectedly in the event of unrest.  All U.S. citizens should have evacuation plans that do not rely on U.S. government assistance.  U.S. citizens should ensure that travel documents (passports and visas) are valid and up-to-date.  Consular services, already limited throughout the country due to very poor transportation infrastructure and security conditions, may be further limited, including in Banjul itself.

U.S. citizens who decide to remain in The Gambia should prepare for the possible deterioration of security:

  • Exercise caution and remain abreast of the security situation.
  • Follow the instructions of local authorities.
  • Stay home or at another safe location.
  • Have emergency supplies of food, water, and medications.
  • Let friends and family know that there might be communication disruptions.

Additional recommendations on emergency preparedness are available on the Travel.State.gov web page “What Can You Do in a Crisis Abroad?

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Related items:

 

 

 

Failure of Iraq’s #Mosul Dam Would Likely Cause “A Catastrophe of Biblical Proportions”

Posted: 2:29 pm PT

 

In February 2016, the US Embassy in Baghdad released a fact sheet on Mosul Dam.  It warned that in the event of a dam failure, the floodwave would resemble an in-land tidal wave between Mosul and Samarra’, and would sweep downstream anything in its path, including bodies, buildings, cars, unexploded ordinances, hazardous chemicals, and waste. It notes that less than 6 inches of moving water is strong enough to knock a person off his feet, and 16 inches of moving water can carry away most automobiles. Flooding south of Samarra would resemble that of Hurricane Katrina, with standing water that pervades much of Baghdad for weeks to months. As floodwaters recede, mud and waste-covered remnants of previous infrastructure will be left behind.  Flood water could reach depths greater than 45 feet in some parts of Mosul City in as little as one to four hours, giving residents little time to flee. Flood water could reach Tikrit in one to two days.  Flood water could reach Baghdad in three to four days and have depths of up to 33 feet in the river channel.  Some parts of Baghdad would be flooded, which could include Baghdad International Airport (see US Embassy Baghdad Issues Warning on Possible Collapse of Iraq’s Mosul Dam).

The State Department’s July 2016 Travel Warning notes that the Government of Iraq has taken measures in improving the structural integrity of the dam but urged contingency planning for those who reside in the floodplain. The same Travel Warning also notes that the ability of the Embassy to assist U.S. citizens facing difficulty is extremely limited.

The Government of Iraq has begun to take measures to improve the structural integrity of the Mosul Dam.  A dam failure could cause significant flooding and interruption of essential services from Mosul to Baghdad.  While it is impossible to accurately predict the likelihood of the dam failing, the Embassy has made contingency plans to relocate its personnel in such an event.  The Embassy recommends that U.S. citizens in Iraq, especially those who reside in the floodplain of the Tigris River, prepare their own contingency plans, have valid U.S. passports, and stay informed of local media reports and Embassy security messages for updates.  

Dexter Filkins has a new story in  (subscription) about the potential coming flood if the Mosul Dam collapses and cause a “catastrophe of Biblical proportions.” Earlier this month, Al Jazeera also reported that the Mosul Dam collapse ‘will be worse than a nuclear bomb’. Apparently warnings by scientists and environmentalists about an imminent collapse are dismissed by Iraqi officials as far-fetched.

 

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