On March 6, 2017 the Trump Administration issued a new Travel Ban Executive order, entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” This Executive Order is an attempt to pass travel restrictions that will not be found unconstitutional, after the Administration’s last Travel Ban was struck down by federal courts. The new Executive Order may be downloaded here: March 6th Executive Order.
Key provisions of the March 6th Executive Order.
The March 6th Travel Ban Executive Order has some similarities and some differences with the original Travel Ban order.
- Iraq not subject to restriction. The countries now subject to the Travel Ban are Libya, Somalia, Sudan, Syria, and Yemen, but not Iraq. See Section 2(c).
- Ban applies only to those outside of the U.S. without visa. Unlike the first Travel Ban, this Order applies only to those outside the U.S. See Section 3. To be subject to the new Travel Ban, the individual must be: (1) outside the U.S.; (2) not possess a valid visa as of 5:00 p.m., eastern standard time on January 27, 2017; and (3) not possess a valid visa on the effective date of the Executive Order (March 16, 2017). In other words, someone who held a valid U.S. immigration status, or valid U.S. visa, issued before the Executive Order, is not subject to the Travel Ban. Lawful permanent residents, for example, should be able to reenter without issue.
- Waiver possible. Those who have not already been issued a visa will have to apply for a special waiver, if they are from a Travel Ban country. See Section 3(c). The standard for this waiver is that the individual’s entry to the U.S. must be in the “national interest.” Examples of individuals who may qualify for waivers are given below.
- Heightened review for Iraqis. Unlike the first Travel Ban, Iraqis are not completed barred by the new Executive Order. However, the Order indicates that they will be subjected to a strict standard of review when applying for visas. See Section 4.
- Temporary ban of refugees. Similar to the first Executive Order, refugee admissions are barred for 120 days. See Section 6. Those already issued refugee visas, however, are permitted to seek entry to the U.S., unlike the original Travel Ban.
- Additional countries. The Order directs the Department of Homeland Security to investigate additional countries that should be subject to travel restrictions. See Section 2. The initial review is due on March 26, 2017.
Who would qualify for a “national interest” waiver?
Unlike the first Travel Ban order, the new Order gives specific examples of who might qualify for a “national interest” waiver if from one of the Travel Ban countries. Those examples are:
(i) the foreign national has previously been admitted to the United States for a continuous
period of work, study, or other long-term activity, is outside the United States on the
effective date of this order, seeks to reenter the United States to resume that activity, and
the denial of reentry during the suspension period would impair that activity;
(ii) the foreign national has previously established significant contacts with the
United States but is outside the United States on the effctive date of this order for work,
study, or other lawful activity;
(iii) the foreign national seeks to enter the United States for significant business or
professional obligations and the denial of entry during the suspension period would impair
(iv) the foreign national seeks to enter the United States to visit or reside with a close
family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful
permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial
of entry during the suspension period would cause undue hardship;(v) the foreign national is an infant, a young child or
(v) the foreign national is an infant, a young child or adoptee, an individual needing
urgent medical care, or someone whose entry is otherwise justified by the special
circumstances of the case;
(vi) the foreign national has been employed by, or on behalf of, the United States
Government (or is an eligible dependent of such an employee) and the employee can
document that he or she has provided faithful and valuable service to the United States
(vii) the foreign national is traveling for purposes related to an international organization
designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et
seq., traveling for purposes of conducting meetings or business with the United States
Government, or traveling to conduct business on behalf of an international organization not
designated under the IOIA;(viii) the foreign national is a landed Canadian immigrant who applies for a visa at a
(viii) the foreign national is a landed Canadian immigrant who applies for a visa at a
location within Canada; or
(ix) the foreign national is traveling as a United States Government-sponsored exchange
Will the new Executive Order hold up in Court?
Throughout his election campaign, President Trump announced his intention to ban Muslims from the United States. After taking office, he seems to have been advised that such an action would be unconstitutional. So based on that advice, he issued the first Travel Ban, which was basically putting lipstick on the pig – that is, since he couldn’t actually ban Muslims, he took steps towards that goal, without actually saying it. The Courts weren’t fooled by the lipstick, and saw his actual intention clearly.
Now we have a second Travel Ban order, which is basically putting more makeup on the pig, not just lipstick. So, for example, the new Executive Order makes several pages of “factual findings” intended to justify its policies. See Section 1. The findings describe the Administration’s justifications for the restrictive policies imposed by the Order. These are doubtlessly meant to help the Trump Administration defend the Executive Order when he is sued in court, as will happen almost immediately.
But Courts are not stupid. The new Travel Ban has been issued against the backdrop of Trump’s vitriolic anti-Muslim rhetoric. To say nothing of the previous, unconstitutional Travel Ban order. He cannot unring the bell in terms of the steps he has already taken to target and discriminate against Muslims. That history will make it very difficult for him to defend the new Travel Ban order.