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Diplomatic Security’s Basic Special Agent (BSAC) Training: Sexual Harassment Alert!

Posted: 2:21 pm PT

 

In August 2016, the Bureau of Diplomatic Security’s Principal Deputy Assistant Secretary for Diplomatic Security and Director of the Diplomatic Security Service (DSS) Bill Miller sent a message on sexual harassment to bureau employees.  We published the entire message here, Below is an excerpt of that 2016 statement:

Diplomatic Security takes sexual harassment extremely seriously – not only as an issue in the State Department, but also especially within our Bureau. 

In our response to questions from Diplopundit on this issue July 27, we noted that we find unacceptable any behavior that threatens people’s well-being in the workplace, or in any way diminishes someone’s professional capacity. 

Sexual harassment is an attack on the values this organization seeks to protect every day.  It compromises our charge to protect the workplace rights and ensure a safe environment for all Department employees.
[…]
As a law enforcement organization, we must hold ourselves to the highest standards of ethical conduct. As the leader of this organization, I hold every employee accountable to that standard and will not accept any less of them.

Sexual harassment and sexual assault are serious issues that affect both men and women. We condemn any comment that seeks to trivialize these activities or their impact on victims. 

Diplomatic Security personnel are made aware of their responsibilities as law enforcement officers and federal employees from the beginning of their employment with the Department.  DS employees receive recurring training on equal employment opportunity guidelines, prohibiting discriminatory practices, harassment in all its forms, and promotion of diversity and inclusiveness throughout their career. 

During the Basic Special Agent Course, Basic Regional Security Officer (RSO) and RSO advanced courses, individuals from the DS Victim’s Resource Advocacy Program provide classes on responding to sexual assault.

I am disappointed and disturbed to hear that anyone in our organization would be concerned about being stigmatized for coming forward to report sexual harassment or sexual assault.  It is unacceptable that we have employees of any gender who may not feel comfortable reporting such activities.

This week, we received an email from a new Diplomatic Security Service (DSS) agent detailing sexual language that female student-agents had to endure during Diplomatic Security’s Basic Special Agent Course (BSAC) training. The writer expressed concern over the “worrisome behavior by senior agents conducting the training” and the apparent tolerance by others witnessing such behavior.  The writer also wrote: “One senior female agent advised me that upon receipt of this complaint, DSS Management’s first response will likely be to try to figure out who the “complainer” is . . rather than dealing with the senior agents responsible for damaging the department’s reputation.”  Our corespondent suggests that if investigators outside of Diplomatic Security want to look into this, all they need to do is talk to the female agents in BSAC’s 137, 136, and 135.

The report below is what we can share publicly.  This writer like our other correspondents in the past, is also wary of retaliation.  We’ve referred to Special Agent #1 as SA#1 although we can certainly imagine a more colorful name. Special Agent #2 is also referred below as SA#2.

ALERT! ALERT! ALEEEEERT!

Received via email from a DSS Special Agent

-START-

Here is what I witnessed:

1) During protective training, I was assigned to a follow car that was “coached” by [Special Agent #1]. During our time with [SA#1], myself and the other females in the group had to listen to [SA#1] describe in detail how during his time in Baghdad he shaved his “balls” and had problems with them “sticking.” [SA#1] then felt it appropriate to detail a trip to his doctor where he had a consultation about erectile medication. [SA#1] also made repeated derogatory comments about his wife. My memory is a little fuzzy on those comments, but they were along the line of, “the old ball and chain, etc.”

I should mention that one of the female agents present is only 22 years old. So this young agent, in her first real job out of college had to sit (literally right next to [SA#1] in the back seat / physically touching him) and listen to [SA#1] , her supervisor, go on and on about his sticky balls in Baghdad and his erectile disfunction . . .i.e. he was discussing his penis.

2) The protection portion of the training was run by unit chief [Special Agent #2]. I personally was “creeped” out by [SA#2] during the entire training as he would try to flirt with the female students in a very unprofessional manner. [SA#2] really crossed the line, however, when for some reason he decided to ask one of the female students (now an agent) for their phone and proceeded to look through it. [SA#2] found the phone number or a text message in the female student-agent’s phone for one of the male contractors working on our final exercise, and texted “I miss you” to the contractor (from the female student/agent’s phone). The female student/agent was of course mortified as it appeared she was texting “I miss you” to the contractor. Is this appropriate behavior from a Unit Supervisor in the training division?!

[SA#2’s] inappropriate behavior continued when, during a re-test he decided to switch out a male student-agent from the position sitting next to him in the exercise to the above mentioned female student-agent. [SA#2] advised the entire BSAC that he was making the switch so he could have someone to “talk to.” He was supposed to be grading the re-test, but instead decided to use the time to creepily attempt to flirt with the female student-agent.

I am sure the above behavior by [SAs #1 and #2] has been repeated in multiple BSAC’s and I hope the department conducts a thorough investigation. Honestly, however, I am not so optimistic that things will change. I know Diplopundit has documented several such sexual harassment claims in the not so distant past, and yet, the above Supervisory SAs seemed to have no compunction in openly behaving this way in front of the 20 plus student-agents!

Where are the Director and the other senior members of DSS management?!! If they cannot protect/prevent a 21 year female agent from having to listen to Supervisory SAs like [SA#1 and SA#2] while she sits in training, how can DSS Senior Management be trusted to protect that same agent from harassment while she is serving in a high threat post in a 98% male RSO shop?!

The Director came to speak to our BSAC, and within 3 minutes of our “pep” talk he told us that if we had joined DSS to use it as a stepping stone we should “get the hell out.” That is a direct quote. One day on the job, and the Director comes in and says “get the hell out” in a pep talk. I would like to turn that around on the Director. If the senior leadership in DSS cannot prevent Supervisory Agents from “creeping out” all females in a BSAC class. Or prevent female student-agents from having to listen to Supervisory SA’s conducting BSAC training discuss their “shaved balls,” maybe it is time for the Director and others to “get the hell out” and leave the bureau in more capable hands?

-END-

The Eleventh Circuit’s decision in Henson v. City of Dundee, 682 F.2d 897, 902, 29 EPD ¶ 32,993 (11th Cir. 1982) notes the following:

Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and made a living can be as demeaning and disconcerting as the harshest of racial epithets.

Female agents should not have to bear and tolerate this kind of language and offensive behavior for the privilege of being allowed to work at Diplomatic Security.

Why would anyone think this is appropriate, acceptable behavior?

And when this is done by individuals in supervisory ranks during training, how do you expect new employees to step up and report this to these same supervisors? The same supervisors, by the way, who can pass/fail employees during basic training. The same supervisors, by the way, who ought to be modeling the highest standards of ethical and professional conduct for agents-in-training.

While the EEOC policy guidance on sexual harassment notes that “sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment,” it also talks about the pervasiveness and pattern of behavior.

Putting aside our previous reports on harassment at Diplomatic Security for a moment — if we’re talking about three classes to start with here, what is that if not a pattern? And if this behavior was witnessed and tolerated by people and contractors who should know better, then Diplomatic Security has a systemic problem that no broadcast message from bureau officials can fix.

The Supreme Court said in Vinson that for sexual harassment to violate Title VII, it must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” 106 S. Ct. at 2406 (quoting Henson v. City of Dundee, 682 F.2d at 904. Since “hostile environment’ harassment takes a variety of forms, many factors may affect this determination, including: (1) whether the conduct was verbal or physical, or both; (2) how frequently it was repeated; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a co-worker or a supervisor; (5) whether the others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual.

In determining whether unwelcome sexual conduct rises to the level of a “hostile environment” in violation of Title VII, the central inquiry is whether the conduct “unreasonably interfer[es] with an individual’s work performance” or creates “an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3). Thus, sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.

Preventive actions per EEOC‘S Guidelines encourage employers to: “take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.”

Also 29 C.F.R. § 1604.11(f): An effective preventive program should include an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented. The employer should affirmatively raise the subject with all supervisory and non- supervisory employees, express strong disapproval, and explain the sanctions for harassment. The employer should also have a procedure for resolving sexual harassment complaints. The procedure should be designed to “encourage victims of harassment to come forward” and should not require a victim to complain first to the offending supervisor. See Vinson, 106 S. Ct. at 2408. It should ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation.

All well and good, but in the real world we have these: Chien v. Kerry: DS Agent Files Suit For Race/Sex Discrimination, Hostile Work Environment, and RetaliationInbox: Female Diplomatic Security Agent Pens a Note on Sexual Harassment and Career SuicideAnother Concerned DS Agent Pens Response to Diplomatic Security’s Broadcast Message on Sexual Harassment.

The State Department’s sexual harassment policy is memorialized here.

Related posts:

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A #SexualAssault Reporting Process Foreign Service Members Deserve: How Much Longer Secretary #Tillerson?

Posted: 8:55 pm PT

 

We’ve written several blogposts on sexual assaults and/or the lack of clear sexual assault reporting guidance in the Foreign Service in 2016 (see The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief and First Person: I am a ✂️ FSO who was ✂️ raped in ✂️… Continuing on has been ✂️ incredibly difficult… and other links below).

On November 22 last year, the State Department directed a task force to create a new section in the Foreign Affairs Manual for sexual assault (see U/S For Management Directs Task Force to Create New Sexual Assault FAM Guidance). In December, we posted an update when the State Department told us that “The Department is committed to the work the taskforce is doing to create a sexual assault section for the FAM, work that will continue past inauguration day.” (see @StateDept Task Force For New Sexual Assault FAM Guidance – An Update). Through the last few months we have regularly checked in with the State Department to follow-up on the new regulations.

Today is exactly six months to the day when an inter-bureau taskforce was directed to create a new section in the Foreign Affairs Manual for guidance on sexual assault.  The State Department’s Bureau of Public Affairs — that in the past had been responsive in assuring us that the agency is committed to the creation of the sexual assault regulations —  did not acknowledge nor respond to our inquiry as of this writing.

So let’s ask their boss — how much longer Secretary Tillerson before the Foreign Service gets its sexual assault reporting guidance?

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Sexual Assault Related posts:

 

MSPB Precedential Case: The Statutory Definition of a “Widow”

Posted: 2:14 am ET

 

This is a precedential case worth noting via the U.S. Merit Service Protection Board:

Petitioner: Amanda E. Becker
Respondent: Office of Personnel Management Tribunal: U.S. Court of Appeals for the Federal Circuit Case Number: 2016-1365
MSPB Docket No. CH-0831-15-0280-I-1
Issuance Date: April 7, 2017

Case Report – April 14, 2017

The appellant filed an application with the Office of Personnel Management (OPM) seeking survivor benefits under the Federal Employees’ Retirement System (FERS) based on the Federal service of her late husband. OPM denied her application on the basis of its finding that she did not meet the statutory definition of a “widow” who may receive such benefits, which is defined at 5 U.S.C. § 8441(1) as the surviving wife of an employee who was married to the employee for at least 9 months immediately before his death, or who is the mother of children by that marriage. The appellant appealed OPM’s decision, and the administrative judge affirmed. During the proceedings, the administrative judge denied the appellant’s request for discovery regarding instances in which OPM may have waived the 9-month requirement and regarding whether OPM provided her late husband notice regarding the 9-month requirement. The appellant appealed the decision to the court, arguing that 5 U.S.C. § 8441(1) was unconstitutional and that the administrative judge improperly denied her discovery requests.

Holdings:

(1) The court found that 5 U.S.C. § 8441(1) does not violate the Constitution because there is a rational basis for Congress to use an imprecise set of criteria as a proxy to ensure that the marriage was entered into for reasons other than the desire to shortly acquire benefits.

(2) The court found that the administrative judge did not abuse her discretion in denying the appellant’s discovery requests because: (a) she had no reasonable belief that OPM has previously waived the 9-month requirement and, even if OPM had previously done so, it would still be required to follow the statutory requirements when reviewing the appellant’s application; and (b) there was no dispute that the appellant’s late husband submitted all of the election forms to ensure that she received survivor benefits and, even if he was unfamiliar with the statutory requirements contained in the election forms he signed, such fact would not provide a basis for waiving the requirements.

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Burn Bag: What right does this U.S. mission have to prior restraint?

Via Burn Bag:

An eligible family member (EFM) overseas (not employed by a US mission) was recently told she had to submit an article she had written to the Ambassador and the regional bureau for review. The article had nothing to do with policy, the host country, or anything approaching privileged information. Nevertheless, the Ambassador, who had no particular expertise in the subject, sent changes back to the author. The EFM was also instructed that her co-author would also need clearance from her post and bureau.

When is this ridiculous overreach going to stop?

The FAM says nothing about Foreign Service spouses having to seek pre-publication review. Why are they expected to get clearance for their writing even when they are not employed by a U.S. mission and are not working for the U.S. Government?

 

The State Department’s pre-publication review has three purposes per 3 FAM 4170:

The personal capacity public communications review requirement is intended to serve three purposes: 1) to determine whether the communication would disclose classified or other protected information without authorization; 2) to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, 3) in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4).

 

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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White House Issues Clean-Up Memo For Trump Ban to Exempt Green Card Holders

Posted: 1:09  am ET

 

On February 1, White Counsel Donald F. McGahn II released a memo intended to provide “Authoritative Guidance on Executive Order Entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017).”

Section 3(c) of the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017) suspends for 90 days the entry into the United States of certain aliens from countries referred to in section 217(a)(12) of the Immigration and Nationality Act (INA), 8 U.S.C. 1187(a)(12). Section 3(e) of the order directs the Secretary of Homeland Security, in consultation with the Secretary of State, to submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of certain foreign nationals from countries that do not provide information needed to adjudicate visas, admissions, or other benefits under the INA.

I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals. Please immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order.

The EO clearly states  “I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants.”  So the EO drafters had to idea what are green card holders? Or they just want to tame the blowback right now.

Here is Section 3 (c):

(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 of foreign nationals, and to ensure that adequate
standards are established to prevent infiltration by foreign
terrorists or criminals, pursuant to section 212(f) of the
INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant
and nonimmigrant entry into the United States of aliens from
countries referred to in section 217(a)(12) of the INA, 8
U.S.C. 1187(a)(12), would be detrimental to the interests of
the United States, and I hereby suspend entry into the United
States, as immigrants and nonimmigrants, of such persons for
90 days from the date of this order (excluding those foreign
nationals traveling on diplomatic visas, North Atlantic Treaty
Organization visas, C-2 visas for travel to the United
Nations, and G-1, G-2, G-3, and G-4 visas).

Here is Section 3 (e)

(e)  After the 60-day period described in subsection (d)
of this section expires, the Secretary of Homeland Security,
in consultation with the Secretary of State, shall submit to
the President a list of countries recommended for inclusion on
a Presidential proclamation that would prohibit the entry of
foreign nationals (excluding those foreign nationals traveling
on diplomatic visas, North Atlantic Treaty Organization visas,
C-2 visas for travel to the United Nations, and G-1, G-2, G-3,
and G-4 visas) from countries that do not provide the
information requested pursuant to subsection (d) of this
section until compliance occurs.

The full WH memo is here:

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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 Travel Ban: Rudy Tells the “Whole Story”, Plus Reactions and Fall Out

Posted: 2:09 am ET

 

On January 27, 2017, 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.

We’ve seen folks on social media get confused about this. So let’s try this.  There are 38 countries designated as Visa Waiver Program (VWP) countries; citizens or nationals of these 38 countries are currently eligible to travel to the United States without a visa. However, if either of the following is true, travelers will no longer be eligible to travel to the U.S. without a visa. Instead, individuals in the following categories will have to apply for a visa using the regular appointment process at a U.S. Embassy or Consulate.

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

The Trump EO banning entry and issuance of immigrant and nonimmigrant visas for 90 days uses these same seven countries.  Note that citizens from these seven countries have not been banned from visa applications or entry to the United States previously. Citizens from 38 visa waiver countries who previously traveled to these seven Muslim-majority countries were not allowed to use the waiver and must submit for an interview with a consular officer at an embassy or consulate overseas.

Since it appears that DOD Secretary Mattis and DHS Secretary Kelly were out of the loop on this, would it be totally shocking if no input was asked from the State Department? No?  Interagency cooperation is just the White House now? On the day President Trump was preparing to sign this EO, our embassies and consular posts worldwide were still issuing visas;  all official, and valid but no longer acceptable at ports of entry as soon as the executive order took effect.

Here’s Rudddddddy with a backgrounder.

Reaction round-up below:

 

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Trump EO: Protecting the Nation From Foreign Terrorist Entry into the United States, 1.27.2017

Posted: 8:20 pm ET

 

As of 8:06 pm ET, January 29, the Trump Executive Order that suspends the entry of refugees to the United States for 120 days and deny entry/issuance of visas to citizens of seven Muslim-majority countries [Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen] for 90 still has to show up on the White House website. A copy is available from the LA Times here,  but we are reposting it below in full text for easy reference:

THE WHITE HOUSE

Office of the Press Secretary

For Immediate Release

January 27, 2017

EXECUTIVE ORDER

PROTECTING the Nation from Foreign Terrorist Entry into the United States

By the authority vested in me as President by the Constitution and 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 American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1 . Purpose . The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States.  The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.  The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.  In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

Sec . 2 . Policy . It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.

Sec . 3 . Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern

(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

(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 review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order.  The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State 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 of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

(d)  Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

(e)  After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

(f)  At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.

(g)  Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

(h)  The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.

Sec . 4 . Implementing Uniform Screening Standards for All Immigration Programs

(a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, 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 the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.

(b)  The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.

Sec . 5 . Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017

(a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. 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 process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.

(b)  Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.  Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

(c)  Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.

(d)  Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), 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 such entry until such time as I determine that additional admissions would be in the national interest.

(e)  Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and 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 admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.

(f)  The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.

(g)  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 Homeland Security 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 . 6 . Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility

The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.

Sec . 7 . 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 all 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 contained in subsection (a) of this section.  The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order.  Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.

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.

Sec . 9 . Visa Validity Reciprocity

The Secretary of State shall review all nonimmigrant visa reciprocity agreements 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 a country does not treat United States nationals seeking nonimmigrant visas in a 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 the foreign country, to the extent practicable.

Sec . 10 . Transparency and Data Collection

(a) To be more transparent with the American people, and to more effectively implement 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 within 180 days, and every 180 days thereafter:

(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, or material support to aterrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;

(ii)   information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and 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, since the date of this order or the last reporting period, whichever is later; and

(iii)  information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later;

and

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

 (b)  The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.

Sec . 11 . 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,

January 27, 2017.

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