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U.S. President Trump’s Revised Executive Order

On March 6, 2017, President Trump signed a revised travel ban, the “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States,” which will take effect on March 16, 2017.  This Executive Order, already dubbed with the moniker “Muslim Ban 2.0” by immigrant rights groups, expressly revokes the previous travel ban of the same name issued on January 27.  The implementation of the previous ban was first temporarily restrained on February 3 by a federal district court and then suspended altogether by the Ninth Circuit Court of Appeals on February 9.[1]

Here is a quick summary of key points:

  • The ban goes into effect on March 16.
  • Iraq has been removed from the list of designated countries.
  • Current U.S. visa holders are no longer affected: the ban applies for a period of 90 days only to people from the six designated countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) without current visas.
  • Green card holders from the six designated countries are not affected
  • Dual nationals: the ban does not apply to dual nationals who enter the U.S. presenting their passport from a country not under the ban.
  • The Department of State will restrict the Visa Interview Waiver Program and require in-person interviews for most non-immigrant visa applicants.
  • Foreign nationals from the six designated countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) who are landed Canadian immigrants who apply for U.S. visas at a location within Canada may be eligible for entry. However, any such determination will be made on a case-by-case basis under the joint discretionary authority of the Department of Homeland Security and the Department of State.
  • Refugees: All refugee resettlement will be halted for 120 days, starting March 16. Those already granted asylum will be allowed.  Once the refugee program is reinstated, refugees of minority religions will no longer be favoured, and Syrian refugees are now only temporarily barred rather than indefinitely barred.

Who is Affected

Foreign nationals from the remaining six predominately Muslim countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) are still barred from obtaining U.S. visas for 90 days, starting on March 16.

This ban applies to foreign nationals of these six designated countries who are outside of the U.S. on March 16.  It also applies to foreign nationals of those six designated countries who did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017, as well as those who do not have a valid visa as of March 16, 2017.

Who is Not Affected

Iraq has been removed from the list of designated countries.  The Government of Iraq and the U.S. Department of State have been in negotiations to increase cooperation on the vetting of Iraqi citizens applying for a visa to travel to the U.S.  As a result, Iraqi citizens are not affected by the Executive Order.

Green card holders, as lawful permanent residents of the U.S., will not be affected, even if they are nationals of one of the six designated countries.

Those with an immigrant or non-immigrant visa issued before March 16 will not have their visas revoked as a result of this Executive Order.

Case-by-Case Review by the Department of Homeland Security and the Department of State

Under this revised Executive Order, the Department of Homeland Security and the Department of State have the joint discretionary authority to issue visas or allow the entry of foreign nationals from the six designated countries on a case-by-case basis.  They can do so when officials are satisfied that the individual in question can demonstrate either that the denial of entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest.  The Executive Order provisions give examples of circumstances in which case-by-case waivers could be appropriate.  One such example is where the foreign national is a landed Canadian immigrant who applies for a U.S. visa at a location within Canada.

Refugees

The revised travel ban has potentially devastating consequences for refugees.  The Executive Order suspends travel of refugees into the U.S. under the U.S. Refugee Assistance Program (USRAP) and all decisions on applications for refugee status for the fiscal year 2017 for 120 days starting on March 16.  In addition, the Order limits the entry of refugees into the country to 50,000 refugees for the fiscal year 2017, a drastic reduction from the 110,000 target.  However, refugees from Syria are no longer indefinitely banned, and refugees from religious minorities will no longer be favoured.

Legal Challenges: Discrimination on the Basis of Religion

The revised Executive Order is intended to stand up to legal scrutiny more firmly than the previous travel ban of January 27, which was halted by the federal court and which faced numerous legal challenges by states and advocacy groups on the basis of religious discrimination.  However, the Guardian reports that Hawaii was the first state to file a legal challenge against the revised travel ban on March 7 in the federal court in Honolulu, stating that the order will harm its Muslim population, and adversely affect both tourism and foreign students in Hawaii.[2]  In addition, the state argues that the new travel ban is still incompatible with freedom of religion protections in both the state and federal constitutions.

The American Immigration Lawyers Association (AILA) has stated that it does not believe the new Executive Order will withstand judicial scrutiny if legally challenged, given that the six designated countries are majority Muslim countries, and despite its revision, the Order still does not provide sufficient evidence that nationals of these countries pose a threat to national security.[3]  Moreover, AILA notes that in legal challenges to the first Executive Order of January 27, courts gave serious consideration to the discriminatory statements made against Muslims by President Trump and his staff, which may once again help demonstrate an intension to discriminate against Muslims.

In Conclusion

Hawaii’s Attorney General, Douglas Chin, stated that nothing of substance had changed in the revised Executive Order: “[t]here is the same blanket ban on entry from Muslim-majority countries (minus one) and the same sweeping shutdown of refugee admissions (absent one exception) and lawless warren of exceptions and waivers.”[4]  While the revised Executive Order expands upon its justification of an underlying national security rationale to protect Americans from foreign terrorism by providing brief descriptions of each of the six designated countries from the U.S. Department of State’s Country Reports on Terrorism 2015, such justification still remains extremely dubious.  It is not clear that any greater degree of security will be reached, but what is certain is that the revised Executive Order will negatively affect a great number of people by separating families, keeping workers from their jobs, keeping out visitors and students, and trapping thousands of refugees in dangerous conditions.  While it is possible that the revised travel ban will meet the same fate as the first ban in federal court, it is certain that however long it is in place, it will serve to further isolate the United States from the world.

The full text of the Executive Order is available on the White House website:

https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states

[1]Liz Robbins and Jonathan Wolfe, “New York Today: The New Travel Ban,” New York Times, March 7, 2017, https://www.nytimes.com/2017/03/07/nyregion/new-york-today-what-you-need-to-know-about-the-travel-ban.html?_r=0;

American Immigration Lawyers Association (AILA), “Summary and Analysis of Executive Order ‘Protecting the Nation from Foreign Terrorist Entry into the United States,” March 6, 2017, AILA Doc. No. 17030660, http://www.aila.org/infonet/summary-second-trump-exec-order-visa-issuance.

[2] Oliver Laughland, “Hawaii becomes first state to sue over Trump’s revised travel ban,” The Guardian, 9 March 2017,  https://www.theguardian.com/us-news/2017/mar/08/revised-travel-ban-hawaii-legal-challenge-trump.

[3] American Immigration Lawyers Association (AILA), “Summary and Analysis of Executive Order ‘Protecting the Nation from Foreign Terrorist Entry into the United States,” March 6, 2017, AILA Doc. No. 17030660, http://www.aila.org/infonet/summary-second-trump-exec-order-visa-issuance.

[4] Oliver Laughland, “Hawaii becomes first state to sue over Trump’s revised travel ban,” The Guardian, 9 March 2017,  https://www.theguardian.com/us-news/2017/mar/08/revised-travel-ban-hawaii-legal-challenge-trump.