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

Posted: 1:09  am ET
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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
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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
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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
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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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Trump Travel Ban: Rudy Tells the “Whole Story”, Plus Reactions and Fall Out

Posted: 2:09 am ET
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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 Bars US Entry of Refugees, and Citizens, Green Card Holders From Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

Posted: 4:45 pm PT
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Yesterday, 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.

A WH official reportedly told reporters that “green card holders in the US will have to meet with a consular officer before leaving the country.”  Anyone with basic familiarity on how the system works knows that U.S. consular officers are primarily posted overseas at U.S. embassies and consular posts.

CNN is reporting that the US “will not automatically allow green card holders who traveled to countries placed under a temporary travel ban back into the United States.”  The report also says that “Green card holders already overseas seeking to return to their homes in the US will be processed through a waiver authority that has already been established. One official said there is a case-by-case admissions process and another said it is being done “expeditiously.”  

We understand that there is no waiver specific to “green card” holders. DHS notes that there is a waiver for the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 and that “the Secretary of Homeland Security may waive these new travel-related VWP restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States.” But this waiver is specific to nonimmigrant visas and does not appear to include “green card” holders.

Trump in his White House bubble says new travel restrictions “working out very nicely.”  He forgot to add that there are huge chaos both at airports and within the agencies tasked to implement his order.

Meanwhile, the ACLU issued an alert: “Lawyers are stationed at airports across U.S. If you know someone entering country, tell them not to sign anything before talking to lawyer.”

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