Protecting The Nation From Foreign Terrorist Entry Into The United States?

On March 6, 2017, President Trump’s administration released the anticipated and revised second Executive Order (EO). It specifies conditions of a travel ban for nationals of six Middle Eastern countries. The following is our analysis of the new order.

§1(a-h) explains the reasoning/history behind this EO. Like the previous one from January 27, 2017, terrorism is at the forefront. The administration provides the same loose statistics on foreign-born terrorists as the previous order and adds in anecdotal reference of 300 refugees who are currently under counterterrorist investigation. What this section does is provide the administration’s justifications for its actions.  Those actions include suspending the refugee program, USRAP, and banning the entry of visa applicants for 90 days.

The current EO does attempt to denounce the idea that the previous order was a religious ban. It attempts to explain that the prioritization of Christians in Muslim countries was not motivated by animus to a particular religion, but rather to allow all religious minorities the ability to seek asylum through USRAP given their special religious circumstances, even though USRAP would be suspended for 120 days under both EOs.

In these sections we see a glimpse of President Trump’s justifications. What is odd is that Trump excludes Iraq since it is an “active combat zone” while at the same time describing Libya and Yemen with similar terms. The only difference is that the Iraqi government, since the previous EO, has taken steps to further assist the US in deporting people back to Iraq. Couple that with fraud detection and Iraq becomes a special case. [1] The EO does not provide specifics about what cooperation the Iraqi government has agreed to other than Iraq will work with the US to provide proper documentation of their citizens.

Excepting Iraq from the previous EO’s list can call into question the legality of discriminating against nationality. Remember, this is a category protected under current asylum laws. [2] When three of the seven nations share characteristics (“active combat zones”), can the president, decide at random that one of those three nations (Iraq) get preferential treatment? Can nationals from Libya and Yemen have a claim of discrimination based on national origin? The likely answer is no, because new applicants probably won't be able to make a claim of harm without first establishing ties to the US.

§1(i) specifically rescinds the first EO and states this EO will clarify previous EO as well as exclude those aliens from those seven banned countries which the 9th Cir. was so concerned about.

§2 begins with an attempt to describe the process by which visa seekers from the current six countries will be vetted for entry. First the Sec. of Homeland Security, Sec. of State, and Director of National Intelligence will conduct a worldwide report to the president about whether and what extra information it needs from each country to help in the adjudication process for those seeking visas, admission, or other benefit under the INA.

§2(c) proclaims that unrestricted entry from the six countries is not in US best interest. It also calls for the 90 day suspension of entry for nationals from those six countries. The rest of the sub paragraphs of section 2 do little to explain in concrete terms what the actual vetting process will include, other than reports about what additional documentation the relevant agencies will need to adjudicate applications.

§3 does make exceptions more clear by including dates on which nationals from the six countries must have obtained a travel permit. That means the ban applies to all nationals from the named countries that are outside of the US on March 6, 2017, have not acquired a proper visa by 5:00 pm EST on January 27, 2017, or have no valid visa on March 6, 2017. So, if you are from those 6 nations and have a valid Visa as of March 6th, you most likely will not be affected by this EO. And presumably, if your Visa expired, then you wouldn’t be allowed back in the country under current law anyway. It seems that this EO will not affect those who have already received admission.

§3(b) excepts LPRs, any national paroled into the US before or after this new EO, dual nationals, diplomats, and any foreign national previously granted asylum. There are also waivers provided for in CBP’s discretion for certain individuals. For example, persons previously admitted under a certain class for work or school who are outside the US on March 6, 2017, a person who has significant business contacts in the US and denial of entry would impair that business, the person has established significant contacts in the US but traveled outside the US for work or school, foreign nationals seeking to visit or reside with close family members who are USCs, LPRs, or admitted to the US and would cause undue hardship, children and adoptees or other humanitarian category, as well as government workers.

While the new EO does fix some issues of the previous order and traces the exceptions already found in the INA, it still leaves some glaring problems. First, there is no clarity about the actual vetting process. By not providing notice of what the procedure will be, can there be a procedural due process issue? But, even if there is, do non-citizens have any standing to challenge or will we have to rely on some type of third party standing. Second, and more importantly, there is a procedural hurdle for litigants of the previous order since this order rescinds the one currently in litigation. Can the opponents now use this current order in place of the previous? Will plaintiffs need to petition new cases with this replacement order? Is the litigation rendered moot when there is no “ripe” issue?

This new order seems to be a lot less rushed and reads more statutory than the previous one. The issue now seems to be that this order might create too many exceptions and leave unclear how the safety of the US is actually enhanced by this order. The question is, does the fact that it is ineffective or bad policy affect its legality? This revised EO seems to make more difficult the legal challenges of its predecessor. We can expect that now there are serious standing issues. Does equal protection and due process apply to non-citizens without legal status here? There is still the 1st Amendment Establishment Clause argument. Yet it will be hard to show that this is a religious ban. The vast majority of muslim-majority nations are not included.

[1] The following is an article about Iraq to illustrate what the Trump administration may have been referring to in the EO:

[2] INA 101 § 42 giving the defininion of refugee to anyone outside of their home country who cannot return for fear of persecution based on nationality, among others.

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