On January 27, 2017, Donald Trump signed an Executive Order (hereinafter “EO”) called “Protecting the Nation from Terrorist Attacks by Foreign Nationals.” The EO immediately (1) Implements a travel ban from seven designated Muslim countries for 90 days; (2) Suspends refugee admissions for 120 days; and (3) Suspends interview waivers at US consulates abroad. On February 3, 2017, a Federal District Court Judge in Seattle, Washington issued a Temporary Restraining Order (TRO), finding that the ban should be blocked until its constitutionality can be fully reviewed. On February 9, 2017 a three-judge panel at the US Court of Appeals for the Ninth Circuit unanimously found that the TRO should remain in place in part because of the serious constitutional questions at stake and the governments failure to articulate a legitimate national security basis for the travel ban. The Ninth Circuit emphasized that the “the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.” As of the time of writing this advisory, the TRO temporarily stops the travel ban from being applied anywhere in the world.

Will the ban be reinstated?

Trump can choose one of four options to challenge the Ninth Circuit’s findings: (1) Write a new, better written executive order which could possibly be implemented at any time; (2) Appeal the decision on the TRO to a full panel of judges at the Ninth Circuit; (3) Appeal the Ninth Circuit’s decision on the TRO to the US Supreme Court; or (4) Do nothing now, but wait for the full hearing on the travel ban. Shortly after the Ninth Circuit issued its decision on the TRO, Trump tweeted “SEE YOU IN COURT.” It’s uncertain which of the court options above he is likely to take or if he will also issue a new executive order. On February 10, 2017, CNN reported that Trump will not immediately appeal the travel ban decision to the Supreme Court, but that a new executive order is being considered.

Becker & Lee’s advice to all travelers

Before the TRO was issued, Trump’s EO imposed drastic restrictions on travel to the US. Since Trump could issue a better written, more narrowly tailored travel ban by way of a new executive order at any time, we advise people who are subject to Trump’s January 27, 2017 Executive Order to travel with caution at this time. Those foreign nationals who are inside the US and are subject to the ban should not travel outside the US without consulting with an immigration attorney to fully understand the risks. Some foreign nationals who are not subject to the ban should also understand that they could be subject to potential delays and additional “extreme vetting” upon return from travel abroad. For example, foreign nationals who are not subject to the ban, but who need to apply for visas abroad will likely experience longer wait times for visa interviews and may experience “administrative processing” delays when applying for their visas. Upon return to the US, all foreign nationals and even US citizens who hold dual citizenship with a designated country should expect potential additional screening and delays and should plan accordingly.

THE 90-DAY TRAVEL BAN AIMED AT MUSLIMS

Since the ban is on hold, the government is not allowed to apply any provisions of the travel ban. The terms of the initial ban would be implemented if the TRO is lifted. Trump’s EO suspends issuance of visas and immigrant and non-immigrant entry to the US of “nationals” of the following seven countries: Iran; Iraq; Libya; Somalia; Sudan; Syria; and Yemen. Importantly, the EO makes clear that additional countries can be added to this list after a 90-day review process by the Trump Administration. The ban includes exceptions for some diplomats and other visa holders. Unfortunately, Trump issued the EO without properly consulting the various immigration agencies that execute immigration laws and the authors of the order failed to clarify key terms which were essential for smooth implementation. As a result, much confusion and unnecessary detentions ensued during the first days of the ban’s implementation.

Who does the travel ban apply to?

The travel ban is temporary on hold, but if reinstated, it applies to any individual who is a “national” of one of the countries listed above. In essence, this means that a non-US citizen who is a citizen of any of the seven designated countries is barred from entering the US, even if that person has not visited the designated country for years. Since the order is written vaguely and does not define “national” it should be assumed the bar will be interpreted very broadly. Until further guidance is issued, any non-US citizen who was born in one of the seven countries should assume the ban can apply, even if that person no longer holds a passport or does not consider her or himself to be a citizen of one of the seven listed countries.

Does the ban apply to dual citizens?

Initially the EO applied to all dual citizens unless the person is also a US citizen. The travel ban applies to any national of a banned country who wants to come to the US as a temporary (non-immigrant) visa holder or with an immigrant visa. As of the writing of this advisory, it is unclear whether once reinstated, the ban would apply to non-US citizens who are dual citizens of one non-designated country and one designated country.

On January 28, 2017 a US Department of State officer reportedly stated that dual citizens who come to the US but “who have nationality of one of these countries will not be permitted .. to enter the United States or be issued an immigrant or non-immigrant visa.” This statement contradicts statements issued subsequently by the US Consulate in the UK as well as statements issued by the governments of the UK and Canada. The US Embassy and Consulate in the UK reports that “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.” Also, media outlets report that US government officials have confirmed dual citizens of Canada are also exempt from the ban. There appears to be an exception for dual citizens of Canada and the UK.

Anecdotally, some dual citizens have reportedly obtained entry to the US by showing a passport from the non-designated country, while others have been denied entry. Customs and Border Protection (CBP) officers will determine who is subject to the ban based on the information given to the officers at time of entry. A US citizen, in contrast, is not subject to the ban even if he or she is a citizen of a designated country. However, even US citizens who are from or have recently traveled to one of the designated seven countries could be subject to additional delays and interrogation.

Does the ban apply to permanent residents?

Initially CBP applied the ban to permanent residents, but subsequently confirmed the EO “does not apply to” lawful permanent residents. Initially the ban was applied broadly to apply to all permanent residents who are from one of the seven designated countries. A number of permanent residents were refused boarding from overseas, and/or detained for many hours after landing in the United States, many times without having access to an attorney.  A number of federal lawsuits were successful in stopping the practice of applying the ban to permanent residents and detaining returning residents.

As of result of this pressure, on Sunday, January 29, 2017 DHS stated that permanent residents are allowed to board planes and come to the US, but will undergo additional secondary inspection screening upon their entry. The same day DHS issued a statement saying permanent residents will be allowed to enter the US on a “case by case basis” but that permanent residents will continue to undergo increased interrogation. Even after DHS’ announcement softening how the ban applies to permanent residents, anyone returning from one of the seven designated countries should anticipate increased interrogation, potential detention and long delays when returning from trips abroad.

If I have a visa can I board the plane even if I am subject to the ban?

Since the ban is temporarily on hold, all travelers can come to the US, even if the ban applies to them. If the TRO is lifted and the ban is reinstated, a person who is subject to the travel ban will (1) not be granted a visa at a US consulate abroad; and (2) if they already have a visa, will be denied entry and/or will be subject to detention until CBP allows them to enter or returns them to their home country on another flight. A person subject to the ban with a valid visa should be allowed to board the plane, although there are reports of individuals who have not been allowed to get on the plane. Once the person lands in the US, however, he or she could be detained and returned to his or her home country. For those subject to the band who land in the US, there is a waiver that can allow them to enter. Initially, that waiver was only issued by CBP authorities in Washington, DC. Eventually, that waiver power was transferred to CBP officials in charge of various Ports of Entry. If the ban is reinstated, CBP officials in charge of local Ports of Entry should be able to adjudicate the waiver upon arrival. Due to numerous legal challenges of this travel ban and the government’s constant changing interpretation of who it should apply to, it is essential for a person who is potentially subject to the ban to obtain current information from an experienced immigration lawyer before traveling internationally. Contacting an immigration lawyer before traveling to the US is highly recommended.

If I am subject to the travel ban but have a pending application or petition with USCIS how will my case be impacted?

There were reports that DHS had initially issued internal guidance temporarily stopping final adjudications of all applications and petitions filed on behalf of individuals who are from one of the seven designated countries. According to the Intercept, Daniel M. Renaud, Associate Director of Field Operations for USCIS advised DHS officers that, “effectively (sic) immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya.” According to the guidance quoted in the Interceptor, USCIS officers were allowed to process applications and interview applicants for green card applications and other benefits, but were told to hold final adjudication until further notice. Since the TRO is now in place, it would be illegal for the government to hold cases for those who are subject to the ban.

Is this a “travel ban” or a “Muslim ban”?

Trump made it very clear during his campaign that he wants to ban all Muslims from coming to the US. But upon learning that such a move would likely not be legal, he rebranded his order as a “travel ban” instead. Trump, who is not a lawyer, consulted with legal counsel who explained that a ban that so explicitly targets one of the world’s largest religions would likely not survive court challenges. According to Former New York mayor Rudy W. Guiliani, Trump formed a “commission” to study how he could legally ban Muslims. Based on the commission’s recommendations, Trump’s “Muslim ban” was later re-branded as a “travel ban” to focus on nationals of specific Muslim-majority countries instead of applying a religious test. Many media outlets and immigration advocates continue to refer to Trump’s EO for what it really is: an attempt to ban Muslims.

Is the ban legal and will it survive?

Although the power to issue this EO is authorized under the Immigration and Nationality Act, there are strong legal arguments that can be used to potentially overturn it. Indeed, a number of lawsuits across the country have already obtained temporary stays of parts of the EO and have successfully been used to stop deportations, secure the release of detained immigrants, and allow lawyers access to their detained clients at airports. The lawsuits claim, among other things, that the EO unconstitutionally discriminates based on national origin and religion and that DHS violates due process and existing immigration laws when applying the order. Many expect that the legality of the ban will ultimately be decided before the U.S. Supreme Court. There is also a bill that is likely to be introduced in Congress to override the ban.

Will other countries be added to the list?

The EO makes clear that other – presumably Muslim-majority countries – could be added to the list after a 90-day review process by the Trump Administration. To understand the likelihood of this happening, its important to consider two issues: (1) the initial reason the seven designated countries were selected; and (2) Trump’s personal business ties in other Muslim countries that are likely to be added to the list.

To overcome accusations that the ban is a “Muslim ban” that unconstitutionally discriminates based on religion, Trump selected a list of seven countries previously identified by the Obama Administration as countries whose citizens are not eligible for the Visa Waiver Program. Obama required such nationals to undergo normal visa interview screening, while Trump used Obama’s list to ban all nationals from entering the US.

The EO also purports to protect the US from another terrorist attack on US soil. According to the conservative-leaning Cato Institute, however, there hasn’t been a single American death on US soil by citizens of the seven designated countries for at least the last 40 years. Indeed, the countries whose citizens have been involved with the highest number of terrorist acts on US soil – such as Saudi Arabia, the UAE and Egypt, for example – are not included in the travel ban. The US has significant financial and political interests to maintain with these three political allies. Also, Bloomberg and other media outlets have pointed out that Trump holds significant personal business interests in Saudi Arabia, the UAE and Egypt but he has no business ties in the seven designated countries. It would be against Trump’s own business interests to impose a travel ban on citizens of countries who have actually engaged in terrorist attacks in the US.

Due to Trump’s own business interests, the business and political interests of the US, the need to keep the list of designated Muslim countries short to help overcome legal challenges, and the heavy opposition the ban has received across the world, it is unlikely – although not impossible – that additional countries will be added in the next 90 days.  Thus, those who are citizens of Muslim-majority countries should plan overseas travel with caution—at least for the next few months.

REFUGEE BAN

The EO also suspends all refugee admissions for 120 days and indefinitely suspends admission of Syrian refugees for an undefined amount of time. During the 120 days, government agencies are instructed to implement new procedures to help secure the “national interest.” Upon resumption of the refugee program, the EO also instructs the government 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.” This is widely interpreted as an attempt to favor the admission of Christians refugees fleeing from majority-Muslim nations, and supports the legal argument that the order unconstitutionally favors one religion over another.

  SUSPENSION OF INTERVIEW WAIVERS

The EO also suspends the “interview waiver” program at US consulates abroad. Importantly, ESTA or the “Visa Waiver Program” is not directly impacted by the new EO. The “interview waiver” program is a policy whereby some foreign nationals applying for a renewal of a visa abroad are exempt from an in person interview at US consulates since they have been previously screened. By eliminating the interview waiver program, interview wait times at US consulates will likely increase.

By: Camiel Becker

Note: This advisory is intended to provide an overview of the EO and is not a substitute for individual legal advice. Before filing a request for any immigration benefit or traveling abroad you should consult with an experienced immigration lawyer to determine if the travel ban applies to you. The information in this article is current as of February 10, 2017. Legal challenges and government interpretation of the legal issues discussed are likely to change quickly over the coming days and weeks.

“This version of the Travel Advisory is an updated version that was published on January 31st, 2017.”