The latest incarnation of the “Muslim Ban”

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As of June 26, 2017, the Supreme Court of the United States settled the question of Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States,” which gained recognition as “The Muslim Travel Ban.”  The Supreme Court held that foreign nationals with a “bona fide” connection to the United States could be admitted, but those without a bona fide connection could be banned without any Constitutional violations.  Yet, the Supreme Court did not define what constitutes a bona fide relationship, and thus the expectation of litigation regarding such standard was only a matter of time.

As anticipated by many legal professionals and by all those affected by the “Travel Ban,” nearly three months later, on September 24, 2017, President Trump issued Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.”  As explained by The United States District Court for the District of Maryland, the Proclamation applied to “foreign nationals who lack a credible claim of a bona fide relationship with a person or organization within the United States, and which [was] slated to go into effect on October 18, 2017.”

The basis of the Proclamation is that nations who failed to provide the categories of information as previously set by the Secretary of Homeland Security were given 50 days to fix the issue; 50 days later, eight countries were determined to have continued inadequate information sharing practices: Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen.

“This new ban is entirely better, and facially more legal, than anything that came before.”

The Proclamation lays out reasons as to why each of the countries is subject to the entry restrictions and treats various countries differently.  It also notes how countries can get off the list as well.  As an article by Slate suggests, “this new ban is entirely better, and facially more legal, than anything that came before.”  For each of the named eight countries, in Section Two, “Suspension of Entry for Nationals of Countries of Identified Concern,” the Proclamation states, “[t]he entry into the United States of nationals of the following countries is hereby suspended and limited….”

CHAD

For Chad, entry of nationals, as immigrants, and as nonimmigrants with B1 (business) or B2 (tourist) visas is suspended entirely.  In support of this suspension, the Proclamation cites Chad’s failure to provide or share adequate public-safety and terrorism-related information, as well as Chad having at least one unspecified national security risk factor.

IRAN

For Iran, the Proclamation suspends entirely the entry of Iranian nationals on both immigrant and nonimmigrant visas, except those travelling on student (“F” and “M”) and exchange visitor (“J”) visas.  Yet, these visa holders are subject to enhanced screening and vetting due to Iran being a source of significant terrorism threats, as well as a designated state sponsor of terrorism by The Department of State.  Furthermore, it states that Iran fails to cooperate with the United States to identify security risks, fails to satisfy at least one key risk criterion, and refuses to accept its nationals slated for deportation.

LIBYA

For Libya, entry of nationals, as immigrants, and as nonimmigrants with B1 (business) or B2 (tourist) visas is suspended entirely.  Reasons for this suspension include the fact that Libya does not provide adequate public-safety or terrorism-related information, has deficiencies in its identity-management protocols, has at least one unspecified national security risk factor, and lastly, does not reliably accept its nationals slated for deportation.

NORTH KOREA

For North Korea, the entry of nationals of North Korea as immigrants and nonimmigrants is suspended. North Korea’s failure to “cooperate with the United States Government in any respect and [its] fail[ure] to satisfy all information-sharing requirements” are the primary reasons supporting the suspension.

SYRIA

For Syria, the Proclamation suspends entirely the entry of all Syrian nationals, both immigrants and nonimmigrants.  This is on the basis that Syria does not “cooperate with the United States Government in identifying security risks, is the source of significant terrorist threats, and has been designated by the Department of State as a state sponsor of terrorism.”  Furthermore, “Syria has significant inadequacies in identity-management protocols, fails to share public-safety and terrorism-information, and fails to satisfy at least one key risk criterion.”

VENEZUELA

For Venezuela, the Proclamation states that the country has adopted many of the baseline standards set by the Secretary of Homeland Security; however, “its government is uncooperative in verifying whether its citizens pose national security or public-safety threats” by failing to share public-safety and terrorism-related information, failing to satisfy at least one key risk criterion, and by not being “fully cooperative with respect to receiving nationals subject to final orders of removal from the United States.”  The proclamation limits such restrictions to government officials of Venezuela since they are responsible for the identified inadequacies.  As a result, Venezuela is the only country for which entry of immigrants is not suspended.

YEMEN

For Yemen, the entry of nationals, as immigrants, and as nonimmigrants with B1 (business) or B2 (tourist) visas is suspended entirely.  This is due to Yemen facing “significant identity-management challenges, which are amplified by the notable terrorist presence in its territory.”  Moreover, the Yemeni Government “fails to satisfy critical identity-management requirements, does not share public-safety and terrorist-related information, and fails to satisfy at least one key risk criterion.”

SOMALIA

For Somalia, the entry of nationals with immigrant visas is suspended entirely.   Additionally, adjudication of visas is subject to “additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.”  The reasons for this suspension include, but are not limited to: significant identity-management deficiencies, persistent terrorist threats, and the government’s lack of territorial control.

In sum, the Proclamation refers to the countries as “important and valuable counterterrorism partners,” except in the cases of Iran, North Korea, Syria, Venezuela, and Somalia.  Additionally, it is important to mention that many immigration law scholars refer to “fear and money” as the driving forces for and underlying all immigration laws. Accordingly, nonimmigrants are allowed entry from all of the aforementioned countries except from North Korea, Syria, and Somalia.

A nonimmigrant, as set out by the United States Citizenship and Immigration Services, is someone who comes to the United States for a specific time and for a specific purpose.  In particular, a nonimmigrant has a permanent residence abroad.  As expected, the specific visas allowed under the Proclamation are both student and tourist visas, which benefit the United States financially; therefore, it is not surprising that these visas are allowed.

This is different from the previous Travel Ban because this will bar indefinitely the entry into the United States of some or all nationals of Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela.

In regards to the reasoning for the Proclamation, President Trump stated, “[a]s President, I must act to protect the security and interests of the United States and its people.”  The basis for the first two attempts at restricting entries from predominantly Muslim countries continues to be national security.  President Trump later announced: “We cannot afford to continue the failed policies of the past, which present an unacceptable danger to our country.  My highest obligation is to ensure the safety and security of the American people, and in issuing this new travel order, I am fulfilling that sacred obligation.”

It is important to note, however, that this is different from the previous “Travel Ban” in that the current Proclamation will bar indefinitely the entry into the United States of some or all nationals of Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela.  Therefore, it is no surprise that not even a month after the Proclamation was announced, challenges were filed against its implementation

As stated previously, two Federal courts, the United States District Court for the District of Hawaii and the United States District Court for the District of Maryland, ruled against the “Travel Ban 3.0” because it discriminates against Muslims.  Both courts support a view that “Travel Ban 3.0” is vulnerable to most of the same legal challenges as its predecessors.  In sum, these courts imposed nationwide restrictions on implementation of the new travel ban order, with the U.S. District Court for the District of Hawaii issuing a temporary restraining order and the U.S. District Court for the District of Maryland issuing a temporary injunction.

First, the United States District Court for the District of Hawaii enjoined the Acting Secretary of Homeland Security and the Secretary of State and all “respective officers, agents, servants, employees, and attorneys … from enforcing or implementing Sections 2(a), (b), (c), (e), (g), and (h) of the Proclamation issued on September 24, 2017 [] across the nation.”  Accordingly, the court stated that Executive Order 3 (“EO-3”) lacks sufficient finding that the entry would be “’detrimental to the interest of the United States”—a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f).”  Lastly, the court stated that “EO-3 plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical both Section 1152(a) and the founding principles of this Nation.”

On the same day, the United States District Court for the District of Maryland concluded that the “Travel Ban 3.0” is a continuation and extension of the previous orders, and thus has the same underlying unconstitutional purpose of discriminating against Muslims.  Specifically, the court pointed out that even though Venezuela and North Korea were non-Muslim countries, these may be pre-textual and serve very little purpose in suggesting that the whole order is to discriminate Muslims.

The Venezuelan provision only applies to a small number of government officials and their families. In addition, only 100 North Korean citizens entered the United States in 2016, many of them officials on diplomatic visas not covered by the ban.  Judge Chuang went on to state in the opinion that President Trump’s most recent statements “covey[ed] the message that the third iteration of the ban—no longer temporary—will be the ‘enhanced expression’ of the earlier ones.”

We may see this issue in the Supreme Court once again.

The decisions by the Hawaii and Maryland district courts show how the “Travel Ban 3.0” is similar to its predecessors in terms of litigation.  In other words, it is vulnerable to most of the same legal challenges as its predecessors.  Furthermore, the motive behind the creation of a travel ban as alleged by President Trump and other executive members is for “national safety and security;” however, considering President Trump’s own Tweet stating, “we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”—a racially-motivated argument can be made.

Based on the fact that two federal courts have already taken up the issue, it is likely that more legal challenges will occur; as a result, we may see this issue in the Supreme Court once again. The question now is whether the issue will be taken at face value, or if the underlying implications as to why the order was placed will be considered.  As suggested by Elie Mystal, an editor at Above the Law, “[w]hen Trump first said that he wanted to ban people based on their religion and others responded, ‘he can’t do that,’ but some lawyers said “actually, there’s probably a way he can do that,” this is what they were talking about.”