Supreme Court Allows Limited Version of Trump Travel Ban to Take Effect

Deutsch, Killea and Eapen, Immigration Law Firm, will regularly update its blog to cover immigration under the Trump administration.  Contact any of our attorneys if you have a concern.

Monday, June 26, 2017:

The U.S. Supreme Court decided to hear the government’s appeal of two lower court decisions that had blocked President Trump’s executive order banning travel from six Muslim-majority countries for 90 days and suspending the U.S. refugee program for 120 days. The Supreme Court order today kept in place part of the lower court injunctions, but reimposed the travel ban for foreign nationals “who lack any bona fide relationship” with U.S. persons. The Supreme Court will hear arguments on the merits of the executive order in October.

The Supreme Court’s order is a partial win for the Trump administration, but will be confusing to implement over the summer. According to the order, the administration cannot block entry of individuals from the six affected countries (Libya, Iran, Somalia, Sudan, Syria, and Yemen) and refugees from around the world if they have “a credible claim of a bona fide relationship with a person or entity in the United States.” How individuals will prove such a relationship, and whether the burden of proof will be on the government or the individuals seeking entry, remains to be seen.

The Court’s order provided the following examples of bona fide relationships:

“The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member . . . clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the executive order]. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid [the executive order]. For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

Based on those examples, students from one of the six affected countries who have been admitted to U.S. universities and who now are applying for visas should be able to enter the country. Similarly, foreign nationals who have been hired by U.S. companies should be able to obtain come here.  But someone who just wants to visit the United States as a tourist may be ineligible.

Much may be left up to the discretion of State Department consular officers at U.S. embassies and consulate, and Customs and Border Protection officers at ports of entry. If an individual is denied a visa or entry, their U.S. college, employer, or relative may need to sue on their behalf.

The Supreme Court’s order is at https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf.

Monday, June 12, 2017:

The U.S. Court of Appeals for the Ninth Circuit held that the President exceeded his statutory authority delegated by Congress in issuing a revised executive order banning travel to the United States from 6 countries. In suspending the entry of more than 180 million nationals from those countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for fiscal year 2017, the President “did not meet the essential precondition” to exercising that authority, the court said: “The President must make a sufficient finding that the entry of these classes of people would be ‘detrimental to the interests of the United States.’ ” Further, the court said, the order “runs afoul of other provisions of the [Immigration and Nationality Act] that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees.” On these statutory bases, the court affirmed in large part the district court’s order preliminarily enjoining several sections of the executive order. The court also vacated the portions of the injunction that prevent the government from conducting internal reviews. The court remanded the case to the district court with instructions to reissue an order consistent with the June 12 opinion.

Thursday, May 25, 2017:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.

Tuesday, March 7, 2017:

On March 6, 2017, President Trump issued a revised executive order, temporarily banning travel to the United States for 90 days by citizens of six Muslim-majority nations–Iran, Libya, Syria, Somalia, Sudan, and Yemen. The revised executive order also halts all refugee admissions for 120 days.

The revised executive order repeals the  ‘travel ban’ executive order of January 25th, but repeats many of the same restrictions with some corrections:

1. It exempts citizens of Iraq from the travel ban.
2. It exempts green card holders and other visa holders from the six countries.
3. It halts refugee admissions from Syria for 120 days, rather than indefinitely.
4. The new order takes effect March 16, rather than taking effect immediately.  This is functionally too short a period of time for affected persons to secure visas.

Overall, however, the revised executive order is essentially a rehash of the last one.  It assumes that travelers from the six Muslim-majority countries and all refugees are inherent security risks.  Analysts in the intelligence unit at the Department of Homeland Security (DHS), however, found little evidence that citizens of the seven countries included in the original travel ban pose a terror threat to the United States. The draft DHS report concluded that citizenship is an “unlikely indicator” of terrorism threats to the United States and that few people from the countries in the original travel ban have carried out attacks or been involved in terrorism-related activities in the United States.

The American Civil Liberties Union, some universities, some States, and others have already indicated they would file lawsuits, over the inability of family members to join them in the United States, the problems the executive order will cause U.S. companies in bringing needed employees to the U.S., and the order’s potential impact on international students.  In sum, there will be continued controversy over the Trump Administration’s immigration policies and how they are enacted.

Thursday, February 9, 2017:

The Ninth Circuit Court of Appeals issued a ruling, denying the federal government’s emergency request to lift the temporary restraining order halting the implementation of President’s Trump’s travel bans.  The Executive Order had temporarily banned all non-citizens from seven majority Muslim countries and all refugees. This decision came in a lawsuit filed by the states of Washington and Minnesota. The states claimed that the travel and refugee bans contained in the President’s January 27 Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” violate the Constitution and the laws.

The Ninth Circuit judges were clearly troubled by the fact that the government had offered no evidence of a specific terrorist attack committed by a national of one of the seven named countries. The government’s entire claim is based on “national security,” but it could not back it up with any facts. Importantly, in concluding that the states have standing, the court emphasized the ‘ample evidence’ that the states, their universities and students, businesses and families would be harmed if the order were to be reinstated: numerous examples were submitted of employees, students and family members stuck overseas by the ban, causing major disruptions to U.S. businesses, universities and families.

This is only the beginning of the lawsuit.  The three judges noted that they were not ruling on the merits of the case.  They merely found that the government had not met its burden to show that it would be harmed if the lower court’s temporary stay continued.

The Trump Administration must now decide whether to further appeal this temporary restraint to the U.S. Supreme Court or to proceed with the merits of the lawsuit in the lower federal court.  Some have suggested the smarter approach would be for the Administration to withdraw its Executive Order and to draft a new one that complies with existing laws and administrative procedures.

The Ninth Circuit panel’s decision was unanimous, thorough, and well-reasoned.  It reaffirmed the important independent role of courts in our government.  For the time being, the nationwide injunction against key parts of the President Trump’s immigration ban remain in place.  Citizens of the seven affected countries can apply for visas to enter the United States.

Sunday, February 5, 2017:

On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order, prohibiting the federal government from enforcing these provisions of its Executive Order of January 27th on a nationwide basis:

1. 90-day travel ban on “immigrants and nonimmigrants” from seven designated countries,
2. 120-day ban on U.S. refugee program,
3. prioritization of certain refugee claims,
4. indefinite suspension of Syrian refugee admissions, and
5. case-by-case refugee admissions.

The Department of State has reversed the revocation of around 60,000 visas, which are once again valid for travel.  Customs and Border Protection has instructed its Field Offices to immediately resume inspection of travelers under standard policies and procedures.   All airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

The American Immigration Attorneys Association has confirmed with CBP that individuals who arrived last weekend and had their visas physically cancelled as a result of the Executive Order will not need to reapply for new visas.

The Trump Administration immediately filed an emergency stay of the Order, which the U.S. Court of Appeals for the 9th Circuit denied.   The Justice Department said it would wait for the appeals process to play out rather than ask the Supreme Court to act.  The Administration argues that it was improper for a lower court to engage in “second-guessing” of the president’s controversial Executive Order and had asked the appeals court to dissolve the judge’s order that stopped implementation of the Executive Order.

Saturday, February 4, 2017:

American Immigration Lawyers Association (AILA) liaison Parastoo Zahedi provided this update.

This is an update from Randall Caudle, a wonderful attorney fighting the good  fight on the West Coast in San Francisco, on Trump Administration Muslim ban (7 countries: Iran, Iraq, Sudan, Syria, Somalia, Yemen & Libya).

Along with approx. 60 other immigration attorneys, I was at a meeting with U.S. Customs & Border Protection (CBP) this morning in San Francisco. U.S. CBP is the federal immigration agency at international airports and borders. A fter the events of this past weekend, we were not sure if anyone from CBP would show up. Not only did CBP show up, but they brought a high level CBP Field Office Director. He was very honest & forthcoming with us and answered all of our questions.

What we found out:

1) All U.S. Legal Permanent Residents will be let into the U.S. without waivers, as of yesterday (Wed., Feb. 1st) afternoon. This includes U.S. Legal Permanent Residents from the 7 banned countries. (Note: The INA – Immigration & Nationality Act is a federal statute. In Section 212 of the INA, it states that all U.S. Legal Permanent Residents have to be let into the U.S.  So, CBP is now complying with the law on this.)

2) There were 6 detained individuals at SFO as of last Sunday, Jan. 29th. 1 individual returned to their home country. The other 5 were released. The last of the detained individuals was released at 2pm Sunday.

3) All dual citizens will be treated as if from the country they present themselves from (which passport they use). So, if someone has French Citizenship and Iranian Citizenship, and uses their French passport, they should be let into the U.S.  If they use their Iranian passport, they will not be let into the U.S.

4) CBP confirmed that officers will search electronic devices and social media of anyone it wants more info. on. They called this one of their tools of investigation.

5) Advance Parole travel permits for DACA (Deferred Action for Childhood Arrivals) will be honored until they are told otherwise, unless it is an individual from 1 of the 7 banned countries.

6) CBP has not heard of and is not aware of any additional countries that will be added to the list of 7.

7) All U.S. Citizens, even with dual citizenship, will be let into the U.S.

8) No individuals from any of the 7 countries came into SFO yesterday.

9) Airlines have been given instructions by CBP on who to let board airplanes. This does not mean that some airline employees will not bar people from boarding that should be allowed to board.

10) Anyone with a medical issue while in primary or secondary inspection will be attended to by paramedics and taken to the hospital if necessary. If inspection is not complete, a CBP officer will go with the individual to the hospital.

Friday, February 3, 2017:

The Department of State announced that a dual national, of an unrestricted country and at the same time a restricted country, with a valid immigrant or nonimmigrant visa, will not be restricted from entering the United States.   Here is the memorandum’s language:

This Executive Order does not restrict the travel of dual nationals from any country with a valid U.S. visa in a passport of an
unrestricted country. Our Embassies and Consulates around the world will continue to process visa applications and issue
nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country,
even if they hold dual nationality from one of the seven restricted countries. Please check with your local Embassy or Consulate for
country specific information.

Furthermore, in response to rumors of plans to expand the travel ban to other countries, The Department of State has informed the American Immigration Lawyers Association that there is no addendum, annex, or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in the Executive Order entitled, “Protecting the Nation From Foreign Terrorist Entry into the United States.” This includes Colombia and Venezuela which have been widely rumored to be under consideration.

Thursday, February 2, 2017:

The Department of State issued an “Important Announcement,” that it has temporarily stopped scheduling appointments and halted processing of immigrant visa applications for individuals who are nationals or dual nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.  Furthermore, the National Visa Center (NVC) has cancelled all scheduled immigrant visa interviews for these applicants scheduled in February 2017. This includes all visa categories, whether they are family- or employment-based. Applicants for fiancé visas (“K” visas) are included. The State Department states, “once it is appropriate, the NVC or a U.S. Embassy or Consulate abroad will notify you of a new interview date and time.”

If anyone received an interview appointment in February and has not yet attended the required medical examination, they should cancel the examination appointment.

The NVC will continue to work on in-process cases for these applicants up to the point of the interview. Persons should continue to pay fees, complete Forms DS-260 immigrant visa application, and submit financial and civil supporting documents to NVC.  NVC will review case files and can qualify caseS for appointments, though persons will not receive visa interviews until further notice.

The Department of State provides detailed Frequently Asked Questions on its website.

Thursday, February 1, 2017:

Current status with regard to persons from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen: US citizens and aliens traveling on “A” diplomatic visas, “G” international organization visas, NATO and “C-2” UN transit visas need have no fear.  However, the Department of State has revoked all Immigrant Visas and other Nonimmigrant Visas (such as “H” and “L” workers, “F” students, and their dependents) for persons from the seven countries.  As discussed below, the Secretary of Homeland Security has stated permanent residents (those with Immigrant Visas) who do not pose threats may still enter the U.S.: this seems to contradict the State Department’s simultaneous revocation of Immigrant Visas.

Our advice remains:

1. Those from one of the seven countries, whether permanent residents or nonimmigrants (but not U.S. citizens), who are in the U.S., should not leave the U.S. if possible.  These persons certainly would risk being denied reentry to the U.S.  Nonimmigrants should attempt to extend their status in the U.S. without leaving, by filing of Form I-129 or Form I-539.
2. While anything can happen in our new world, one should not make assumptions or have fears beyond what is actually happening.  Depending on individual circumstances, of course, our office is advising clients from other countries (than the seven) to travel internationally if required for work or other important reasons.  Generally, we have no reason to believe, at this time, that such persons will be prevented from returning to the U.S.  That said, there are many situations where Customs and Border Protection (CBP) might delay people in the airport when they are returning to the U.S., for example, making them wait for 2 hours in “secondary inspection” if CBP does not like the look on their faces or if the CBP officer “got up on the wrong side of the bed” that morning.  Furthermore, CBP might question persons entering the country about their activities abroad and intended activities in the U.S. – don’t be surprised or overly resentful if this happens to you, since it has always been the case.

Sunday, January 29, 2017:

It seems U.S. permanent residents, even from the 7 designated countries (see below 1/27/17 entry) may now travel with confidence they will be permitted to return.  I assume the success of these travel efforts will soon be known.

Secretary of Department of Homeland Security issued a statement, stating:

WASHINGTON – In applying the provisions of the president’s executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.

Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.

Friday, January 27, 2017:

President Trump signed an executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States.”  Its provisions will prevent many foreign professional and high-level scientific workers currently working in the U.S. from traveling abroad for work or for personal reasons.  It will leave thousands of refugees who face life-threatening danger without protection by halting all U.S. refugee admissions for four months and Syrian refugee admissions indefinitely. The Order also imposes a 90-day ban on entry for all nationals of seven predominantly Muslim nations without requiring any individualized determination  that the person is a security risk. It also imposes additional security protocols, including a hugely burdensome requirement that U.S. government officials interview every person who applies for a nonimmigrant visa.

Highlights of the Executive Order:

1. Ban on entry of nationals of only some Muslim-majority countries: The order bans immigrant and nonimmigrant entries, for at least 90 days, for nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.  None of the 9-11 terrorists was from the listed countries, but rather they were from Saudi Arabia, United Arab Emirates, Lebanon, and Egypt.  Our conservative advice for now is for anyone from one of the affected countries to remain in the U.S. and to extend status here.  This includes permanent residents and all nonimmigrants (F-1 students H-1B professional workers, and L-1 multi-national workers, among others).  It seems for now that such persons may extend their status inside the U.S. by filing Form I-129 or Form I-539.  
   
2. Suspension of U.S. Refugee Admissions Program for 120 days. Exceptions can be made on a case-by-case basis if in the national interest.  In addition, for the current fiscal year, the order reduces the number of refugees to be admitted to the U.S. from 110,000 to 50,000, dropping U.S. refugee admissions to the lowest level in a decade.
3. Ban on Syrian refugees indefinitely, until the President determines their admission is in the national interest. Last year the U.S. accepted about 10,000 Syrians fleeing the civil war—far fewer than other Western countries.
4. Requirement of in-person interviews for most nonimmigrant visa applicants, by suspension of the Visa Interview Waiver Program (VIWP).  The VIWP permitted consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification: it has been waived interviews only for persons already vetted and determined to be a low security risk, with a demonstrated track record of stable employment and travel.  This requirement will create backlogs and long waits for visa applicants at understaffed American Consulates, thus preventing many foreign professional and high-level scientific workers currently working in the U.S. from traveling abroad for work or for personal reasons.