Friday, January 27, 2017

Executive Order on "Protecting the Nation From Foreign Terrorist Entry Into The United States"

Trump

Here (and here) is the latest Executive Order (Protecting the Nation From Foreign Terrorist Entry Into The United States) on immigration issued by President Trump on January 27, 2017.  The second paragraph of Section 1 reads as follows:

"Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism."

The American Immigration Lawyers Association has prepared this summary of the order.  The Executive Summary is below:

EXECUTIVE SUMMARY
 
On Friday, January 27, 2017, President Trump signed an executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States” The provisions contained in the order are unlikely to make our nation safer. Instead, they will leave thousands of refugees who face life-threatening danger without protection by halting all U.S. refugee admissions for four months and Syrian refugee admissions indefinitely.  The order also imposes a 90-day ban on entry for all nationals of seven predominantly Muslim nations without requiring any individualized determination based on specific intelligence that the person is a security risk. Broad language in the order appears to be designed to target people of Muslim faith. The order also imposes additional security protocols, including a requirement that U.S. government officials interview every person who applies for a nonimmigrant visa.  
 
Suspension of U.S. Refugee Admissions Program (USRAP): The order suspends the USRAP for 120 days. Exceptions can be made on a case-by-case basis if it is in the national interest, the person would not pose a risk, and the person is a religious minority facing religious persecution, or the admission of the person is required to conform U.S. conduct to an international agreement, or when a person is already in transit and denying admission would cause hardship. In addition, for the current fiscal year, the order reduces the number of refugees to be admitted to the U.S. by more than half from an initial goal set by President Obama of 110,000 to 50,000, dropping U.S refugee admissions to the lowest level in a decade. Having already admitted 29,895 refugees as of January 20, 2017, the United States would only admit 20,000 more refugees for the remainder of the year. The order also directs DHS to determine the extent to which state and local jurisdictions may have greater involvement in determining the placement or resettlement of refugees in their jurisdictions.
 
Ban on Syrian Refugees: The order halts the processing and admission of Syrian refugees indefinitely, until the President determines that sufficient changes have been made to ensure that the admission of Syrian refugees is in the national interest. Last year the U.S. accepted about 10,000 Syrians fleeing the civil war—far fewer than other Western countries.
 
Ban on Entry of Nationals of Muslim-Majority Countries: The order bans immigrant and nonimmigrant entries, for at least 90 days, for nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen [by reference to INA §217(a)(12)]. Other countries may be added and adjudications of other immigration benefits could be impacted. As described in Section 1, the order also calls for the exclusion of people who “would place violent ideologies over American law” or “who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own)….” This language is vague and appears highly susceptible to discriminatory abuse against people of Muslim faith.  
 
Requires In-Person Interviews for Most Nonimmigrant Visa Applicants. The order suspends the Visa Interview Waiver Program (VIWP), requiring all nonimmigrant visa applicants to attend an interview unless an interview is not required by statute.  The VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification. Suspending the VIWP will place enormous burdens on U.S. consulates and embassies (particularly high-volume posts) by increasing already extended interview wait times and processing times, wasting limited resources, and decreasing the quality of consular interviews. The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel. Limited consular resources should be primarily devoted to high risk or new visa applicant cases where eligibility or security is a concern.  
 
Screening of all Immigration Benefits: The order directs federal agencies to develop screening standards and procedures for all immigration benefits to identify fraud and detect whether a person intends to do harm. Agencies are directed to create a process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest.” These standards are not required by law (except in very limited circumstances), are extremely subjective, and will create significant and often insurmountable barriers for many individuals.
 
Biometric-Entry Exit: The order directs agencies to expedite the completion and implementation of a biometric entry-exit system and includes reporting requirements. Since 1996, Congress has mandated that an automated entry-exit system be developed and implemented at all air, land, and sea ports of entry in an attempt to track those who overstay their visas. While DHS implemented biometric entry in 2006, a biometric exit system has been held up by numerous obstacles and logistical issues.  The completion of an integrated biometrics entry-exit system would require significant funding. The FY 2016 Consolidated Appropriations Act authorizes up to $1 billion for a biometric exit program, to be collected through fee surcharges over a period of up to 10 years. DHS has noted that a comprehensive entry-exit system at all ports of entry will require additional resources.

**

Here is another summary prepared by the Penn State Law Center for Immigrants' Rights.  The website also has posted "Urgent Important Immigration News," which reports that "immigration attorneys around the country are advising their clients from Iraq, Iran, Libya, Syria, Yemen, Sudan and Somalia who are currently PRESENT in the United States to immediately cancel any planned travel outside of the country until further notice, as they might not be allowed back in even if they are in possession of a valid visa.  It is also recommended that people from such countries who are currently OUTSIDE the United States, but are in possession of a valid visa or travel document immediately return to the United States."

CNN, the New York Times, Washington Post, and Los Angeles Times report on the Executive Order and its fallout.  Needless to say, criticism of the order has been harsh.  For the claim that the order violates federal law, see this New York Times editorial.  A letter from scholars in protest of the week of executive orders is seeking signatories.  Here is the statement:

The recent executive orders criminalizing undocumented immigrants, banning the entry of foreign nationals from some majority-Muslim countries, suspending the entry of refugees and establishing religious criteria for their admission, reauthorizing torture, censoring government scientists, and erecting a border wall are a disgrace to our country. As scholars, but more importantly as ordinary citizens and human beings, we feel a responsibility to uphold fundamental democratic values. These executive orders embody religious, ethnic, and anti-immigrant bigotry and threaten our core values of fairness and decency and our democracy itself. We must strenuously resist these executive orders and reclaim our country's highest standards of respect, tolerance, and goodwill.
 
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As of the morning of January 28, the letter had 219 signatories

KJ

https://lawprofessors.typepad.com/immigration/2017/01/executive-order-on-protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states.html

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Comments

Is the Executive Order constitutional? Does anyone have an opinion on this issue? Does the Executive Order violate any statutes?

Posted by: Ed Clinton | Jan 28, 2017 2:15:26 PM

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