Travel Ban Executive Order

Resources Relating to: Executive Order: "Protecting the Nation from Foreign Terrorist Entry into the United States"

Updated September 26, 2017

The September 24, 2017 Presidential Proclamation

On Sunday, September 24, the White House issued a new proclamation extending the scope of the President's travel ban. The proclamation extends the travel ban to travelers from Chad, Venezuela, and North Korea. The proclamation goes into effect on October 18 for an indefinite amount of time, or at least until the banned countries comply with the White House's vetting requirements. As a result of the proclamation, the Supreme Court has postponed hearing arguments against the travel ban, asking lawyers to argue whether the new proclamation makes the new litigation moot.

External Links:

For the full text of the proclamation, officially titled "Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats" see the following link:https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry

A collaboration of advocacy agencies compiled a useful fact sheet explaining the basics of the proclamation:

https://pennstatelaw.psu.edu/sites/default/files/2017.09.25_Ban%203.0%20Fact%20Sheet_Final.pdf

To read more about the travel ban here is an article concerning the new ban, who it affects, and what is new:

http://www.npr.org/2017/09/25/553532495/white-house-amends-travel-ban-to-expand-beyond-muslim-majority-countries

Who does the Proclamation Affect?

Whether the Proclamation affects an individual depends on that individual's nationality and status. With regard to these categories, the Proclamation designates the following as affected:

Chad: Entry by individuals holding B1, B2, and B-1/B-2 visas, as well as immigrant and diversity visas is suspended.

Iran: Entry by nonimmigrant visas is suspended, except for F, M, and J student visas which are subject to enhanced screening and vetting requirements. Further, entry by individuals holding immigrant and diversity visas is suspended.

Libya: Entry by individuals with B-1, B-2, and B-1/B-2 visas, as well as immigrant and diversity visas is suspended.

North Korea: Entry by immigrant, nonimmigrant, and diversity visas is suspended.

Syria: Entry by nonimmigrant, immigrant, and diversity visas is suspended.

Venezuela: No restriction on immigrant visas, but entry suspended for holders of B-1, B-2, or B-1/B-2 visas for officials from the following Venezuelan government agencies (and their immediate family members):

  • Ministry of Interior, Justice and Peace,
  • Administrative Service of Identification, Migration, and Immigration,
  • Corps of Scientific Investigations, Judicial and Criminal
  • Bolivarian Intelligence Service
  • People's Power Ministry of Foreign Affairs

Yemen: No entry by nonimmigrants holding B-1, B-2, B-1/B-2 visas, or under immigrant visas.

Somalia: Nonimmigrant visas are subject to additional scrutiny. Entry by individuals under immigrant or diversity visas is suspended. Further, visa adjudications are subject to additional scrutiny if the individual is determined to be connected to terrorist organizations or otherwise "pose a national security threat."

For all individuals who are designated above, the Proclamation affects those who:

  1. Are outside of the United States as of the applicable date;
  2. Do not have valid visas on the applicable date; and
  3. Do not qualify for a visa or other travel documents under the special provisions made for those whose visas were previously revoked or cancelled at the time of the January 27th, 2017 Executive Order

The applicable dates are:

September 24th: Those who were subject to entry restrictions from earlier Executive Orders and who do not have a bona fide relationship with a person or entity of the United States.

(For information on what constitutes a bona fide relationship, see the analysis at)

https://pennstatelaw.psu.edu/sites/default/files/2017.09.25_Ban%203.0%20Fact%20Sheet_Final.pdf

October 18th: Those who are nationals of Iran, Libya, Syria, Yemen, and Somalia, even with a bona fide relationship with a person or entity in the United States; and those who are nationals of Chad, North Korea, and Venezuela.

Who does the Proclamation NOT affect?

Immigrant or nonimmigrant visas issued before the applicable date shall not be revoked

Individuals will still have the opportunity to make a credible claim of fear of persecution or torture

Persons who had visas revoked or cancelled because of the January 27th Executive Order are entitled to travel document confirming that they are permitted to travel to the United States, and can seek entry under terms or conditions of the previously revoked/cancelled visa.

This Proclamation does not apply to individuals granted asylum, refugees already admitted to the US, or those granted withholding of removal or protection under Convention Against Torture

The Proclamation identifies the following exceptions for individuals who are:

  • Lawful permanent residents and green card holders
  • Anyone admitted to or paroled into the US on or after the applicable effective date
  • Anyone with a document other than a visa (like a transportation letter, boarding foil, or an advance parole document valid on applicable effective date)
  • Dual nationals traveling on passport of non-designated country. Even if one nationality is of a designated country, the dual-national can enter using their other passport.
  • Traveling on diplomatic or diplomatic-type visas, NATO visas, C2 Visas for travel to the UN, or G1, G2, G3, or G4 visas
  • Granted asylum, refugee status, or withholding of removal, advance parole, or protection under the Convention Against Torture

Last, the Proclamation allows individuals subject to travel restrictions to seek a case-by-case waiver allowing them to obtain a visa to enter the US if they can convince a consular or CBP officer that:

  • Denying that their entry would cause undue hardship
  • Their entry wouldn't "pose a threat to national security or the public safety of the United States;" and
  • Their entry is in the United States' "national interest"

Resources and referrals

If you are a member of the UW community affected by the travel ban, you can contact the Office of International Studentswith your questions. If you need to speak with an immigration lawyer, consider contacting NWIRP or AILA. Below you can find web resources that are being updated and may be helpful:

https://pennstatelaw.psu.edu/immigration-after-election#Executive Orders

  • Immigration Advocates Network - nationwide non-profit immigration leal support

https://www.immigrationadvocatesorg/nonprofit/legaldirectory/

"Travel ban" earlier developments

In response to the Supreme Court decision, the Ninth Circuit modified its mandate.

http://cdn.ca9.uscourts.gov/datastore/general/2017/09/14/17-16426%20Mandate%20Order.pdf

On September 13, the Supreme Court issued a stay of mandate with respect to refugees with a formal assurance. This means that for the moment, some refugees will be blocked.

http://cdn.ca9.uscourts.gov/datastore/general/2017/09/11/17-16426%20Supreme%20Court%20Order.pdf

On September 7, the 9th Circuit Court of Appeals, upheld a District Court decision interpreting "bona fide relationship" to include relationships with certain extended family members and with refugee resettlement agencies in the U.S.

http://cdn.ca9.uscourts.gov/datastore/general/2017/09/07/17-16426%20Opinion%20Filed.pdf

 

The Supreme Court on June 26 partially upheld the "travel ban" Executive Order, but permitted the implementation of certain sections of the travel ban to "who lack any bona fide relationship with a person or entity in the United States."

The Supreme Court decision can be read here:

https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf

Analysis of the Supreme Court decision

The Supreme Court specifically identified several categories of individuals who have a bona fide relationship and thus would not fall under the travel ban: admitted students; persons with work visas; and people who seek to enter the U.S. to visit or live with a family member. However, it remains unclear how the "bona fide" relationship test will be implemented in practice. Below are a number of articles and advisories on the Supreme Court case.

Penn State Law Advisory: "What Students Need to Know."

https://pennstatelaw.psu.edu/sites/default/files/pictures/faculty/ADC%20PSU%20Student%206.28.17.pdf

Early legal analysis of the Supreme Court decision:

https://www.acslaw.org/acsblog/musings-on-today%E2%80%99s-travel-ban-decision-by-the-supreme-court

https://lawfareblog.com/supreme-courts-cert-grant-travel-ban-cases-guide-perplexed

https://www.justsecurity.org/42550/stay-or-lack-thereof/

https://takecareblog.com/blog/on-the-travel-ban-the-supreme-court-says-stay-tuned

Court of Appeals decisions on the travel ban

The Supreme Court was reviewing the Fourth Circuit and Ninth Circuit decision which had more broadly enjoined the implementation of the travel ban.

On June 12, 2017, the Ninth Circuit upheld the District Court injunction stopping implementation of the travel ban. The decision can be read here:

http://cdn.ca9.uscourts.gov/datastore/uploads/general/cases_of_interest/17-15589%20per%20curiam%20opinionpdf

On May 25th, 2017, the Fourth Circuit stopped implementation of the "travel ban" Executive Order. The decision can be read here:

http://coop.ca4.uscourts.gov/171351.P.pdf

The revised, March 6, 2017, Executive Order (EO)

On March 6, 2017, the President issued a new "travel ban" Executive Order, modifying the first EO, which has been rescinded after successful court challenges (see below).

The text of the new Executive Order can be found here:

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

The Executive Order was set to take effect on March 16, 2017, but was blocked by two Federal District Court judges. These orders are being reviewed by the Courts of Appeals. The new EO would create a 90-day ban on issuing new visas for individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraq has been removed from the list of affected nations. U.S. permanent residents, as well as individuals from the affected countries who have valid immigration documents issued prior to March 16, 2017 are not directly affected by the new EO.

Summary and Analysis of the new EO

American Immigration Lawyers Association (AILA) summary of the revised travel ban:

http://www.aila.org/infonet/summary-second-trump-exec-order-visa-issuance

DHS Q&A on the revised travel ban:

https://www.dhs.gov/news/2017/03/06/qa-protecting-nation-foreign-terrorist-entry-united-states

Pending litigation challenging the new EO

Two federal judges have now blocked the Executive Order, and it has not taken effect.

One case, State of Hawaii v. Trump, is pending in the Ninth Circuit. The Ninth Circuit has links to the relevant documents and developments in the case.

https://www.ca9.uscourts.gov/search_results.php?q=17-15589

Oral argument was held before the Ninth Circuit on May 15, 2017.

The other case, IRAP v. Trump, is pending in the Fourth Circuit. The Court has links to the relevant documents:

http://www.ca4.uscourts.gov/caseinformationefiling/cases-of-interest/17-1351-international-ref-asst-proj-v-trump

Oral argument in the Fourth Circuit case took place on May 8, 2017, and can be downloaded and listened to:

http://www.uscourts.gov/courts/ca4/17-1351-20170508.mp3

The Fourth Circuit stopped implementation of the travel ban in a decision issued on May 25, 2017:

http://coop.ca4.uscourts.gov/171351.P.pdf

In addition to the two direct challenges to the revised travel ban EO, there are numerous cases around the country challenging provisions of the EO and its application. The Civil Rights Litigation Clearinghouse has links to many of these cases:

https://www.clearinghouse.net/results.php?searchSpecialCollection=44

The First Executive Order (rescinded)

NOTICE: Enforcement of Executive Order Temporarily Suspended

Enforcement of the Executive Order was suspended nation wide after a ruling by a federal judge, which was upheld by the Ninth Circuit.

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf

About The Executive Order

The Executive Order had suspended entry from seven Muslim majority countries (Iran, Syria, Yemen, Iraq, Somalia, Libya and Sudan) for 90 days, suspended refugee admittance  for 120 days, and indefinitely suspended admission of Syrian refugees.  You can read the full text of the Executive Order here:

https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states

This Executive Order has caused much confusion at US ports of entry. Initially, even legal permanent residents from the seven countries  were being denied entry into the US. The Department of Homeland Security has since indicated that green card holders will be admitted on a case by case basis:

https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states

Questions have been raised  about the EO's  constitutionality. Several lawsuits have been filed, including one by the State of Washington. To read more about the Attorney General's lawsuit, click here:

http://www.atg.wa.gov/executive-order-lawsuit

As of 2/14/2017, the date this page was last updated, this EO has been stayed and is not in effect, in accordance with a ruling by the 9th Circuit Court of Appeals.

https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf

Authority for the Executive Order

The statute that authorizes the President to make these kinds of decisions is 8 U.S. Code § 1182(f) which says:

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.

However, lawsuits that have been filed claim that this Executive Order violates the nondiscrimination clause at  8 U.S. Code § 1152(a)(1)(A) which says:

Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.

Impact of the Executive Order on Refugees:

https://therefugeecenter.org/how-will-president-trumps-executive-order-affect-refugees/ (via the Internet Archive)

Impact of the Executive Order on Washington State immigrants:

http://www.seattletimes.com/seattle-news/data/trumps-travel-ban-affects-more-than-21000-state-residents/?utm_source=referral&utm_medium=mobile-app&utm_campaign=ios

Resources from the ACLU:

https://www.aclu.org/news/aclu-files-demands-documents-implementation-trumps-muslim-ban

https://www.aclu.org/video/what-do-when-faced-anti-muslim-discrimination

https://www.aclu.org/legal-document/darweesh-v-trump-petition-writ-habeas-corpus-and-complaint-declaratory-and-injunctive?redirect=legal-document/petition-writ-habeas-corpus-and-complaint-declaratory-and-injunctive-reliefpetition

Resources for UW Students:

The UW Office of Global Affairs has launched http://www.washington.edu/globalaffairs/executiveorder_info/, a resource for UW community members from nations affected by the recent executive order on immigration (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen). This resource provides updated travel recommendations as well as campus, state and federal resources.