This evening the Trump White House announced yet another – this is the fourth – version of its unconstitutional travel ban. Currently, the Administration’s third travel ban has been struck down as unconstitutional and is facing final review before the Supreme Court. Today’s announcement is the President’s fourth attempt to mold a policy that will survive review by the Courts. Courts have held that the previous version of the travel ban were unconstitutional because they made good on Trump’s campaign promise to target Muslims based on their religion.
The current policy differs from previous ones in that it describes different restrictions for different countries. Rather than apply a single rule to all countries subject to the ban, the policy describes different rules for each country. The policy also adds two new, non-Muslim majority countries to the banned list: North Korea and Venezuela.
Let’s look at the new policy (which is available in all of its legalese here).
What countries are subject to the new travel ban?
Under the new Order, Venezuela, North Korea, and Chad have been added to the list. Sudan is now no longer subject to the travel ban. The countries now subject to the travel ban are:
- North Korea;
- Venezuela; and
The Department of Homeland Security will have the authority to add further countries to the travel ban list.
What type of restriction does the new travel ban impose?
- Chad. Processing of all immigrant (permanent) visas is suspended. No more B-1, B-2 visas for tourism and business-related travel will be issued. It appears that all other non-immigrant (temporary) visas could theoretically still be issued.
- Iran. Almost all visas are suspended. The only exceptions are student (F and M) and exchange visitor (J) visas. But applicants for those categories will be subject to “enhanced screening and vetting requirements.”
- Libya. All immigrant (permanent) visa applications are suspended. No more B-1, B-2 visas for tourism and business-related travel will be issued. It appears that all other non-immigrant (temporary) visas could theoretically still be issued.
- North Korea. No visas of any type will be issued.
- Somolia. Review of all immigrant (permanent) visas is suspended. All non-immigrant (temporary) visas will be subject to heightened scrutiny.
- Syria. No visas of any type will be issued.
- Yemen. All immigrant (permanent) visa applications are suspended. No more B-1, B-2 visas for tourism and business-related travel will be issued. It appears that all other non-immigrant (temporary) visas could theoretically still be issued.
- Venezuela. Specified government officials and their immediate family members are ineligible for visas. Other Venezuela citizens will be subject to enhanced screening protocols.
Exceptions to the new travel ban.
The policy lists some very limited exceptions. Under these exceptions, you could be allowed into the United States even if you are from one of the banned countries.
- Already in the United States. The policy states clearly that it applies only to people outside of the United States. So if you are already in the U.S., you should not be impacted by the travel ban. This should mean that it is possible for you to apply for marriage-based adjustment of status, for example.
- Lawful permanent residents (LPRs). If you are already a lawful permanent resident (green card holder) then you are not subject to the travel ban.
- Existing visa. If you are from one of the banned countries and already have your visa, you should still be permitted to travel to the U.S. The policy states that it does not apply to visas that are already issued. The same is true if you have another form of valid travel document other than a visa.
- Dual-citizens. You will not be subject to the new travel ban if you are (a) a dual citizen and (b) are traveling on the passport of a country that is not listed on the travel ban.
- “Admitted or paroled into the U.S.” The policy states that an individual is not subject to the travel ban if they are “admitted or paroled” into the U.S. – even after the announcement of the new travel ban. “Admission” is the normal process for someone entering the U.S. with a visa or other authorization. The policy is clear that if you have a valid visa, you should be allowed to enter the U.S. as per normal procedure. “Parole” is an interesting addition. Under the immigration statute, the agencies have broad authority to allow someone into the U.S. for humanitarian reasons. So it appears they could continue to exercise this authority for someone from a travel ban country.
- Visa canceled under the original travel ban. When the original travel ban was issued, some visas were canceled, even though they had already been approved. If the only reason for the cancellation was the original travel ban policy, that person should still be able to have their visa reinstated.
- Refugees, aslyees, and withholding of removal. The policy states that it does not apply to those granted status as refugees or asylees, nor to those granted witholding of removal (basically, a type of refugee status). The policy also seems to indicate that a person from a travel ban country can still apply for those forms of immigration relief. So – for example – if you are from Chad and present in the U.S., you may still be able to apply for asylum.
- Diplomatic visa. It appears that the policy will still allow the U.S. to issue diplomatic visas to the banned countries.
A wavier (pardon) is possible.
The policy says that the immigration agencies are authorized to issue a waiver to someone subject to the new travel ban. The Department of Homeland Security is supposed to come up with specific standards for these waivers. But the waivers must fall within these three requirements:
- Denying entry would cause the individual “undue” hardship;
- Entry would not pose a threat to the national security or public safety of the United States; and
- Entry would be in the national interest.
In is interesting to note that this appears to be a lower standard than other immigration waivers. Common waivers in the immigrant (permanent) visa context require an individual to prove that denial of the waiver would cause “extreme hardship.” The “undue” hardship standard for travel ban waivers is arguably lower than this standard – meaning that it would be easier to win these waiver requests.
This one is permanent. Unless it’s not.
Unlike previous versions of the Trump travel ban, this one is intended to be permanent. The policy contains no end date. Instead, it is supposed to remain in effect until the impacted countries get their records keeping into line with the standards required by our State Department.
But like all three previous travel bans, this one will almost certainly be challenged in court. The main issue – to simplify – is whether Trump can unring the bell. Whether he can backpeddle on expressly anti-Muslim policies that he endorsed during the election. So far, he has failed completely in defending the prior travel bans. Zero for three.