Trump's Executive Orders on U.S. Immigration
President Trump issued three executive orders (EO) affecting US immigration the week starting 23 January 2017. Of these, the EO signed on 27 January is the most controversial, causing enormous difficulties for nationals or dual nationals of the seven named countries including ‘green card’ holders, sparking protests outside US airports, and leading to lawsuits against the administration. The American Immigration Law Office Ltd condemns these orders as being discriminatory and profoundly un-American.
Executive Order on Border Security and Immigration Enforcement Improvements (25 January 2017). Full text available. In summary, the order addresses, inter alia:
- Building a wall between the United States and Mexico;
- Increasing the number of US Customs and Border Protection Officers;
- Creating/ operating detention facilities near the border with Mexico;
- Ending so called ‘catch and release’ policies;
- Requiring mandatory detention during removal proceedings and pending removal;
- Ending so called ‘abuse of parole and asylum provisions’ as barriers to removal;
- Coordinating with local agencies.
Executive Order on Enhancing Public Safety in the Interior of the United States (25 January 2017). Full text available. In summary, the order addresses, inter alia:
- Empowering US Immigration and Customs Enforcement to act as provided in the ordinance;
- Setting enforcement priorities as to which non-citizens should be removed from the USA;
- Collecting unpaid fines from individuals unlawfully present in the USA;
- Hiring of an additional 10,000 ICE officers;
- Ending federal grants to so called ‘Sanctuary Cities’ [US cities with a policy of not reporting individuals without lawful status in the USA];
- Helping victims of crimes committed by undocumented individuals.
Executive Order on Protecting the Nation From Foreign Terrorist Entry Into the United States (27 January 2017). Full text available. This is by far the most controversial EO and it addresses, inter alia:
- Suspending the US Refugee Admissions Program for 120 days, with limited exceptions;
- Reducing the number of refugees the USA will accept in the current fiscal year by more than half (from 110,000 to 50,000);
- Halting admission of Syrian refugees indefinitely;
- Banning entry into the USA for nationals of Muslim-majority countries, at the moment to include Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, but additional countries may be added;
- Creating and implementing a biometric entry-exit programme with reporting requirements;
- Requiring in person interviews for most non-immigrant visa classifications, thereby ending the Visa Interview Waiver Program;
- Developing procedures for all US immigration benefits to identify fraud and individuals who intend “to cause harm, or who are at risk of causing harm” in the USA.
WHAT THE EXECUTIVE ORDER MEANS FOR NATIONALS OF MUSLIM-MAJORITY COUNTRIES
As soon as the executive order was signed, affected nationals whether holding a US visa or holding a ‘green card’ were immediately impacted when trying to enter the USA, as attested by countless articles. Thousands of people protested Trump’s immigration order outside airports across the USA. Numerous individuals on temporary trips outside the USA were stranded abroad, and businesses were affected when key employees were unable to return to work.
Who does the executive order affect?
The Executive Order affects nationals or dual nationals of the seven designated countries, and include individuals who hold non-immigrant US visas, immigrant visas, lawful permanent resident status, refugee status, Special Immigrant Visa, etc. At the moment, the EO only affects individuals who are trying to enter the USA (aka those within the USA already are not affected unless they wish to leave the US and re-enter).
Reversing earlier policy and practice at US airports, the Department of Homeland Security has now confirmed that lawful permanent residents of the USA who are citizens of one of the seven countries will not be affected by the ban "absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare" but that case by case determinations will be made.
Applicants for a US visa who are citizens of one of the seven designated countries at a US Embassy or Consular abroad may be affected. The US Embassy in London indicates that immigrant and non-immigrant visa holders will only be affected in limited circumstances:
"Beginning January 27, 2017, travelers who have nationality or dual nationality of one of these countries will not be permitted for 90 days to enter the United States or be issued an immigrant or nonimmigrant visa. Those nationals or dual nationals holding valid immigrant or nonimmigrant visas will not be permitted to enter the United States during this period. Visa interviews will generally not be scheduled for nationals of these countries during this period.
Dual nationals of the United Kingdom and one of these countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa."
According to the Department of State Visa Appointment system, visa applicants for both immigrant and non-immigrant visas will only be impacted in limited circumstances:
"Per U.S. Presidential Executive Order signed on January 27, 2017, visa issuance to aliens from the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen has been suspended effective immediately until further notification. If you are a national, or dual national, of one of these countries, please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please DO NOT ATTEND your appointment as the US Department of State will not be able to proceed with your visa interview.
- NATO: Please note that certain travel for official governmental purposes, related to official business at or on behalf of designated international organizations, on behalf of the North Atlantic Treaty Organization, or by certain officials is not subject to this suspension.
- Dual Nationals: Dual nationals with a valid passport issued by any country not restricted under the Executive Order may schedule appointments and apply for visas. U.S. embassies and consulates will process visa applications and issue visas to otherwise eligible applicants who apply with a passport from an unrestricted country, even if they hold dual nationality from a restricted country. Those who qualify for visas will be permitted to travel to and apply for admission to the United States.
- Landed Immigrants of Canada: Landed immigrants of Canada (not including refugees) who hold passports of a restricted country can apply for an immigrant or nonimmigrant visa to the United States, if the individual presents that passport, and proof of landed immigrant status, to a consular officer. These applications shall be made at a U.S. consular section in Canada."
Please note that there have been ongoing disparities in implementation of the executive order. As such, the extent of the EO’s effect on dual nationals remains to be seen.
Legal action has been brought by several affected individuals, resulting in a New York court order temporarily halting aspects of the executive order, as reported by the New York Times. However, it appears that the court order only affects those currently detained at the US border. In addition, the US District Court in Massachusetts issued a judgement halting for a week the ban on nationals of the seven countries entering the USA. A full copy of the court order is available HERE. We will continue to monitor the situation and bring you updates as they become available.
On 29 January 2017, the UK Foreign Office issued the following statement regarding the ban:
"The Foreign Secretary Boris Johnson has today held conversations with the US Government and as a result we can clarify that:
The Presidential executive order only applies to individuals travelling from one of the seven named countries.
If you are travelling to the US from anywhere other than one of those countries (for instance, the UK) the executive order does not apply to you and you will experience no extra checks regardless of your nationality or your place of birth.
If you are a UK national who happens to be travelling from one of those countries to the US, then the order does not apply to you – even if you were born in one of those countries.
If you are a dual citizen of one of those countries travelling to the US from OUTSIDE those countries then the order does not apply to you.
The only dual nationals who might have extra checks are those coming from one of the seven countries themselves – for example a UK-Libya dual national coming from Libya to the US.
The US has reaffirmed its strong commitment to the expeditious processing of all travellers from the United Kingdom."
The United States Department of Homeland Security has now issued a similar statement, confirming as follows:
"For the next 90 days, nearly all travelers, except U.S. citizens, traveling on passports from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen will be temporarily suspended from entry to the United States. The 90 day period will allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals.
Importantly, however, Lawful Permanent Residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate. The entry of these individuals, subject to national security checks, is in the national interest. Therefore, we expect swift entry for these individuals.
In the first 30 days, DHS will perform a global country-by-country review of the information each country provides when their citizens apply for a U.S. visa or immigration benefit. Countries will then have 60 days to comply with any requests from the U.S. government to update or improve the quality of the information they provide.
DHS and the Department of State have the authority, on a case-by-case basis, to issue visas or allow the entry of nationals of these countries into the United States when it serves the national interest. These seven countries were designated by Congress and the Obama Administration as posing a significant enough security risk to warrant additional scrutiny in the visa waiver context."
Seattle Federal Judge James Robart issued a Temporary Restraining Order halting the nationwide enforcement of the Executive Order on Protecting the Nation From Foreign Terrorist Entry Into the United States. Read the full court order here.
The Department of Justice's appeal to reinstate the travel ban was rejected, as reported by the BBC.
Due to the high level of public interest, a website has been created with further information regarding the court documents filed in the State of Washington & State of Minnesota v. Trump matter before the Ninth Circuit Court of Appeals.
On 9 February 2017, the Federal Court of Appeals refused to reinstate Trump's travel ban. The full court decision is available here.