VISAS MANTIS and Implications for Trump’s “Extreme Vetting”

Since his inauguration, President Donald Trump has spent his first 100 days in office issuing Executive Orders. Among them, Trump has signed two Executive Orders directing travel bans for non-U.S. citizens of certain Muslim-majority countries: on January 27, 2017, Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States)); and a revised Order on March 6, 2017 Executive Order 13780. The first Executive Order sparked litigation in federal courts around the country, and many suits are continuing forward to challenge the revised Order.

Executive Orders are controversial because it seems to override our system of checks and balances. However, the President has broad powers to issue executive directives under Article II of the U.S. Constitution. In addition, the Immigration and Nationality Act (INA) section 212(f) gives the President broad authority to exclude certain individual aliens or class of aliens if it would be detrimental to the interests of the United States.

President Trump states his intent is to use the power of the Executive Order to limit immigration as quickly as possible with the goal of imminently protecting national security. However, it is hard to believe the President because he made his intensions clear during the campaign about who he wants to allow into the U.S.

Below is a brief timeline of the executive orders and current state of litigation:

On January 25, 2017, President Trump announced two immigration Executive Orders on interior and border enforcement that focused on deportation priorities on immigrants and expanded the number of U.S. Immigration & Customs Enforcement (ICE) and Border Patrol agents. The Order moves forward with the building of a wall among other anti-immigration policies.

On January 27, 2017, the President signed an Executive Order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which immediately banned individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for ninety (90) days. Initially, this Order included people with green cards and student visas, as well as refugees. Later, the Department of Homeland Security (DHS) promised to allow green card holders from these seven (7) countries to enter the United States. Among other directives outlined in more detail below, the order prohibited all refugees from entering the U.S. for 120 days, prevented Syrians from entering the U.S. indefinitely, and decreased refugee admissions from 110,000 to 50,000.

The President’s Executive Order sparked protests across the country in opposition to a perceived, and arguably, specific, anti-Muslim and “un-American” travel ban. Within days, lawsuits were filed in the states of Washington and Minnesota in the United States District Court for the Western District of Washington based on the Due Process, Establishment, and Equal Protection Clauses of the Constitution that resulted in a nationwide temporary restraining order against several sections of the First Order. On February 3, 2017, a Seattle Federal Judge issued a temporary nationwide block on President Trump’s travel ban. Washington v. Trump, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017).

The Department of Justice filed a Notice of Appeal and an Emergency Motion under Circuit Rule 27-3 for administrative stay and motion for stay pending appeal, and requested that the Court enter stay pending appeal of the District Court’s Injunctive Order.

On February 9, 2017, the United States Court of Appeals for the Ninth Circuit, unanimously supported the Seattle Judge’s decision and ruled against reinstating President Trump’s unconstitutional travel ban. Washington v. Trump, 847 F.3d 1151, 1165-66 (9th Cir. 2017). In a per curiam Order, the Ninth Circuit denied the federal government’s emergency motion for a stay, finding that it failed to show a likelihood of success on the merits of its appeal and that failure to stay the TRO would cause irreparable injury. Although it did not reach the Establishment Clause claim, the Ninth Circuit noted that the asserted claim raised “serious allegations” and presented “significant constitutional questions.” Id. at 1168.

On March 6, 2017, President Trump issued a revised Executive Order which was substantially similar to the first travel ban, but it removed Iraq from the list of affected countries and added certain exemptions. The order:

• Cuts the number of refugees allowed into the United States in fiscal 2017 from 110,000 to 50,000;

• Suspends for 120 days the U.S. Refugee Admissions Program, which identifies and processes refugees for resettlement in the United States. It no longer bans Syrian refugees indefinitely;

• Suspends the entry of nationals from Iran, Sudan, Libya, Yemen, Somalia and Syria for 90 days. This no longer includes Iraq and does not apply to nationals with current visas, dual nationals, legal permanent residents and people with diplomatic visas;

• Directs the Secretary of Homeland Security, the Director of National Intelligence and Secretary of State to put together a list of countries that do not provide adequate information to vet potential entry of foreign nationals into the United States. Foreign nationals from those countries will be banned from entering the United States;

• Directs the Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation (FBI) to implement a uniform screening baseline for all immigration programs;

• No longer directs the Secretary of Homeland Security to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”

• Directs the Secretary of Homeland Security to implement a biometric entry-exit tracking system;

• Grants state and local jurisdictions, whenever possible, a “role in the process of determining the placement or settlement” of refugees;

• Suspends the Visa Interview Waiver Program, which allows certain people renewing their visas to skip an in-person interview; and,

• Directs the Secretary of State to expand the Consular Fellows Program.

Just hours before the travel bans were scheduled to go into effect, the State of Hawaii challenged President Trump’s revised travel ban stating the Executive Order violates protections against religious discrimination, and would harm state businesses and universities, as well as the tourism industry. On March 15, 2017, the Court issued a Temporary Restraining Order enjoining the Government from enforcing or implementing Sections 2 and 6 of the Executive Order nationwide. State of Hawaii v. Trump, No. (2017 WL 1011673) (D. Haw. Mar. 15, 2017).

Immediately after the Federal Judge in Hawaii issued the TRO, a U.S. District Court in Maryland issued a nationwide Preliminary Injunction prohibiting enforcement of the ninety (90) day ban against travelers from the six (6) specified countries. International Refugee Assistance Project v. Trump, No. 8:1cv000361-TDC (D. Md. Mar. 17, 2017).

On March 29, 2017, the District Court of Hawaii granted an Order to convert the TRO to a nationwide Preliminary Injunction against the travel ban. State of Hawaii v. Trump, 2017 WL 1167383 (D. Haw. Mar. 29, 2017). Other parts of the Executive Order are still in place. The Government filed a Notice of Appeal to the Ninth Circuit. The Administration and the Department of Justice have argued the ban was necessary to protect the nation’s security and President Trump has said he would fight all the way to the Supreme Court, if necessary.

As of the writing of this article, upcoming federal appellate hearings are scheduled to take place in early May. It is possible that appeals will reach the U.S. Supreme Court to ultimately decide whether or not the travel bans are constitutional.

As immigration practitioners, I and my colleagues have seen the immediate impact on individuals, families and refugees throughout the country as a result of the travel ban and restrictions. Understandably, the client base we serve are scared for their futures because there is much uncertainty given the limbo status of the Executive Orders. Until final decisions are rendered by the courts, which have an unpredictable timeline, we recommend that visa holders and legal permanent residents from Muslim countries impacted by the Executive Orders contact an attorney for advice before travelling outside the U.S.

Snehal Batra, Esq. is Counsel to Nachman, Phulwani and Zimovcak Law Group, P.C., a law firm dedicated to Immigration and Nationality Law, with offices in Ridgewood, NJ, NY and India. An opening of a Neshanic Station, NJ office is anticipated in June, 2017. She is a member of the American Immigration Lawyers Association (AILA); Member of the Immigration Section of the New Jersey State Bar Association and Chair of the Immigration Practice of the Somerset County Bar Association.