The White House recently issued a new immigration Executive Order "Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States." The executive order comes after the United States Court of Appeals for the Ninth Circuit upheld a Temporary Retraining Order ("TRO”) on the White House's prior similarly titled executive order issued on January 27, 2017, and the White House subsequently declined to appeal the case further to the U.S. Supreme Court (our discussion regarding the January 27, 2017, executive order can be found here). The newest executive order unequivocally revokes the January 27, 2017, executive order.
Similar to its predecessor, the executive order continues the temporary ban on entrance into the United States for foreign nationals from the countries of Iran, Libya, Somalia, Sudan, Syria, and Yemen – the so-called "designated countries." However, the executive order does not affect foreign nationals from Iraq.
The executive order clearly establishes that the travel restrictions apply only to foreign nationals from the six designated countries that:
- Are outside the United States on March 16, 2017 (the “Effective Date”);
- Did not have a valid visa at 5:00 pm EST on January 27, 2017; and
- Do not have a valid visa on the Effective Date.
Further, the travel restrictions do not apply to:
- Any lawful permanent resident of the United States (i.e. green card holders);
- Any foreign national who is admitted to or paroled into the United States on or after the Effective Date;
- Any foreign national, who has a document other than a visa, valid on the Effective Date or issued on any date thereafter, that permits the foreign national to travel to the United States and seek entry or admission; or
- Any dual national of a designated country when the individual is traveling on a passport issued by a non-designated country.
The executive order also leaves open the possibility of a case-by-case waiver by a consular officer or a Customs and Border Protection ("CBP") official in circumstances such as:
- The foreign national having been previously admitted to the United States for a continuous period of work, study, or other long-term activity, and is outside the United States on the Effective Date, seeks to reenter the United States to resume that activity, and denial of reentry during the 90-day suspension period would impair that activity;
- The foreign national has previously established significant contacts with the United States, but is outside the United States on the Effective Date;
- 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 those obligations;
- 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 Government; or
- The foreign national is travel as a United States Government-sponsored exchange visitor.
Lastly, the executive order unequivocally states that:
- No immigrant or nonimmigrant visa issued before the Effective Date will be revoked pursuant to the executive order;
- Any individual whose visa was marked revoked or marked canceled as a result of the January 27, 2017, executive order will be entitled to entry into the United States; and
- Any prior cancellation or revocation of a visa that was solely pursuant to the January 27, 2017, executive order will not be the basis of inadmissibility for any future determination concerning entry or admissibility in the United States.
In light of the above, it is clear that the White House crafted the new executive order to avoid the difficulties that plagued the implementation of the January 27, 2017, executive order and constituted the grounds for the successful legal actions against the order. Nevertheless, on March 15, 2017, hours before the executive order was to take effect, the United States District Court for the District of Hawaii issued a nationwide TRO temporarily enjoining Section 21 and Section 62 of the executive order from taking effect. Soon after, in the earlier morning of March 16, 2017, the United States District Court of the District of Maryland issued a nationwide Preliminary Injunction preventing the implementation Section 2(c)3 of the executive order. The full text of the Maryland Court's opinion can be found here.
Both federal courts found that the executive order, in all likelihood, violates the Establishment Clause of the United States Constitution. Taking into consideration the public statements of President Donald Trump, his advisors, and members of his Administration4, both courts found that the executive order targeted the designated countries' Muslim majority populace and had a disproportionate impact on foreign nationals of the Islamic faith. The courts noted that the White House only offered the national security rationale after federal courts issued preliminary injunctions against the January 27, 2017, executive order. The Maryland Court also stated that the executive order was unprecedented in the recent history5 of the United States.
Despite the nationwide injunctions imposed on the latest executive order, foreign nationals from the six designated countries should avoid travel and refrain from leaving the United States for the foreseeable future or, if currently outside the United States and in possession of a valid visa, reenter the United States as quickly as possible. The TRO and Preliminary Injunction issued by the federal courts, as the names suggest, are temporary halts to the implementation of the executive order. There still remains the possibility that the courts will decline to extend the decisions or that a higher court will lift the TRO and/or the Preliminary Injunction.
1 Section 2 includes the 90-day travel for foreign nationals of the designated countries.
2 Section 6 includes the suspension of the United States Refugee Admissions Program, encompassing applications for refugee status and refugee admission into the United States, for 120 days.
3 The Maryland Court declined to issue an injunction blocking the executive order in its entirety, but Section 2(c) includes the 90-day travel ban for foreign nationals of the designated countries.
4 Both courts cite statements by President Trump during his 2016 presidential nomination and campaign, as well as in the early weeks of the Administration. In addition, the courts cite Trump advisors Stephen Miller and Rudolph Giuliani, and White House Press Secretary Sean Spicer.
5 The Maryland Court referred to the distant restrictions imposed on Iranian nationals by President Jimmy Carter and on Cuban nationals by President Ronald Reagan during their respective administrations.