Articles Posted in Syrian Refugees

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On October 24, 2017, the President issued Executive Order 13815 entitled, “Resuming the United States Refugee Admissions Program (USRAP) with Enhanced Vetting Capabilities.” As the title suggests, the U.S. Refugee Admissions Program also known as (USRAP) is no longer suspended and the policies set forth in section 6(a) of Executive Order 13780 also known as “Protecting the Nation from Foreign Terrorist Entry into the US,” are no longer in effect as they pertain to refugees. As outlined in Executive Order 13780, beginning October 24, 2017, “Presidential action to suspend the entry of refugees under the USRAP [is no longer needed] to protect the security and interests of the United States and its people.”

Section 6(a) of Executive Order 13780 imposed a temporary freeze on the admission of refugees to the United States, and provided for a temporary 120-day window in which the Department of Homeland Security would review the application and adjudication process for the Refugee Admissions Program to prevent foreign terrorist entry to the United States. This 120-day window expired on October 24, 2017. Section 6(a) contained a provision which stipulated that refugee travel and application decisions would resume after the 120-day window had terminated, “for stateless persons and for nationals of countries which the Secretary of State, Secretary of Homeland Security, and Director of National Intelligence jointly determine that the additional procedures identified through the USRAP review process are adequate to ensure the security and welfare of the United States.”

At this time, the Secretary of State, Secretary of Homeland Security, and Director of National Intelligence have advised the Trump administration that sufficient improvements have been made to prevent foreign terrorist entry through the Refugee Admissions Program, such as the implementation of enhanced vetting procedures. These improvements have been deemed sufficient to ensure the “security and welfare of the United States,” for the time being. In accordance with this order, the Department of Homeland Security will only apply special measures restricting the travel of refugees to those categories of refugees that “pose potential threats to the security and welfare of the United States.”

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On October 17, 2017, federal judge Derrick Watson of the U.S. District Court for the District of Hawaii, issued a temporary restraining order preventing the government from enforcing Sections 2(a), (b), (c), (e), (g), and (h) of the Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” signed by the President on September 24, 2017. These sections of the Presidential Proclamation were to be enforced at 12:01 a.m. eastern daylight time on October 18, 2017.

As a result, foreign nationals from Chad, Iran, Libya, Syria, Yemen, and Somalia will NOT be affected by the restrictions outlined in the Presidential Proclamation and may continue to travel freely to the United States. Visa applications for these countries will continue to be adjudicated in accordance with existing immigration law, and visa processing standards, irrespective of the restrictions outlined in the Presidential Proclamation.

However, the court order does not prevent the government from implementing restrictions on foreign nationals from North Korea and Venezuela. In addition, the order does not prevent the government from scrutinizing the adjudication of visas for Iraqi nationals and their admittance to the United States. Sections (d) and (f) of the Proclamation, outline the provisions that remain in force. Restrictions on the entry of foreign nationals from North Korea, Venezuela, and Iraq began on Wednesday, October 18, 2017 and will continue until further notice. The restrictions on Venezuela as you will see below are the most lenient of the restrictions. 

Restrictions on North Korean nationals: Entry of foreign nationals from North Korea has been suspended for all immigrants and non-immigrants (including diversity visa holders).

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Just one day before Presidential Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” was set to go into effect, a federal judge in Hawaii issued a ruling blocking portions of the Presidential Proclamation from being enforced on a majority, but not ALL, of the countries, listed in the Proclamation.

The Presidential Proclamation, commonly referred to in the media as ‘travel ban 3.0’ set out to suspend the entry of foreign nationals from eight “countries of identified concern,” and the admission of foreign nationals from those countries was to remain limited until further notice.

The countries to be affected by travel ban 3.0 included: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. A federal judge from the state of Hawaii by the name of Derrick Watson has granted a temporary restraining order preventing the government from suspending the admission of foreign nationals from the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but DOES NOT prevent the government from suspending the admission of foreign nationals from North Korea and Venezuela, and from imposing stricter screening standards on Iraqi nationals. The restrictions on foreign nationals from North Korea, Venezuela, and Iraq will continue to be enforced according to the Proclamation, beginning today, Thursday, October 19, 2017. Restrictions on North Koreans and Venezuelans will likely remain indefinitely, given that the U.S. government has no formal diplomatic avenues for communication with those countries.

Judge Derrick Watson wrote in his opinion that the latest revision of the ban, “suffers from precisely the same maladies as its predecessor,” and “lacks the sufficient finds that the entry of more than 150 million nationals from [the] specified countries would be ‘detrimental to the interests of the United States,” and “plainly discriminates based on nationality.”

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On Wednesday, July 19, 2017, the United States Supreme Court responded to the Trump administration’s motion seeking clarification regarding the Supreme Court’s June 26th preliminary ruling, which held that the President could enforce the travel ban against foreign nationals from Iran, Syria, Sudan, Libya, Yemen, and Somalia, who lack a credible “bona fide” relationship to a person residing in the United States, or entity such as an employer, religious, or academic institution.

The government sought clarification from the United States Supreme Court after the state of Hawaii challenged the government’s interpretation of a “close familial relationship,” and convinced a federal court judge that the Supreme Court intended close family members to include extended family members such as “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.” Federal judge Watson was also convinced that refugees with a formal assurance from a resettlement agency were exempt from the travel ban.

In a brief order, the Supreme Court denied the government’s motion seeking clarification of the court’s June 26, 2017 preliminary order, and reversed judge Watson’s decision regarding the admission of refugees with a formal assurance from a resettlement agency. The Supreme Court has ruled that refugees with a formal assurance from a resettlement agency will not be granted admission to the United States pending the resolution of the government’s appeal to the Ninth Circuit Court of Appeals.

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Last week, Thursday, July 13, 2017, U.S. District Court Judge Derrick K. Watson handed down a ruling which exempts extended family members from President Trump’s travel ban including: “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.” These familial relationships are to be considered bona fide relationships that qualify such foreign nationals from gaining admission into the United States.  Thursday’s ruling also makes refugees with assurances from a resettlement agency, exempt from the President’s travel ban.

Last month, the U.S. Supreme Court announced that they would hear arguments challenging the President’s travel ban when the Court reconvenes in October of next year. As part of their announcement, the U.S. Supreme Court ruled that, in the interim, the President could enforce the travel ban against foreign nationals from Iran, Syria, Sudan, Libya, Yemen, and Somalia, who lack a credible “bona fide” relationship to a person residing in the United States, or entity such as an employer, religious, or academic institution.

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In their ruling, the Supreme Court however provided little guidance on what types of familial relationships would qualify as a credible bona fide relationship. The Supreme Court vaguely stated that “close familial” relationships would qualify as a bona fide relationship, citing mother-in-law’s and spouses as an example of a qualifying familial relationship. However, the Court was silent regarding extended family members.

This prompted the State of Hawaii to seek clarification from federal judge Watson, regarding what types of familial relationships would be subject to the ban. The State of Hawaii argued that the Trump administration had wrongfully interpreted the Court’s ruling to exclude close family members such as grandparents, after the administration issued a diplomatic cable to U.S. consular posts and embassies abroad that defined a “close familial relationship” to include parents, children, and in-laws, but not grandparents, grandchildren, aunts, uncles, and cousins.

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ICE Memo Discusses Immigration Enforcement of EOs 13767 and 13768  

In a new memorandum entitled “Implementing the President’s Border Security and Immigration Enforcement Policies,” U.S. Immigration and Customs Enforcement (ICE), outlines the President’s policies going forward in implementing Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” and Executive Order 13768 “Enhancing Public Safety in the Interior of the United States,” signed by the President on January 25, 2017.

The memorandum makes clear that enforcement and removal operations will be taken immediately against all removable aliens, prioritizing expedited removal of aliens with criminal history or prior immigration violations such as fraud or material misrepresentation. Accordingly, the Department of Homeland security “will no longer exempt classes or categories of removable aliens from potential enforcement” under EO 13767 and 13768.

Under these directives, officers will prioritize efforts to remove individuals who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved;
  • Have committed acts which constitute a chargeable criminal offense;
  • Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

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As previously reported, the U.S. Supreme Court recently announced that the court will be hearing arguments in defense of and in opposition to the President’s controversial executive order “Protecting the Nation from Foreign Terrorist Entry into the United States,” also known as the “travel ban” in October of this year.

In the meantime, the Supreme Court has allowed some parts of the President’s executive order to take effect until it makes a final ruling later this year. This means that certain foreign nationals will be prevented from gaining admission to the United States. Today, the Department of State announced that per the Supreme Court’s instructions, the President’s 90-day temporary suspension will be implemented worldwide at 8:00 PM (EST) beginning today, June 29, 2017.

Who will be affected?

Foreign nationals from the six countries of concern mentioned in the President’s executive order, including Syria, Sudan, Somalia, Iran, Libya, and Yemen, who do not have a bona fide relationship with a person, entity (such as a religious or academic institution), or employer in the United States, will not be granted admission to the United States for a period of 90 days, beginning, June 29, 2017 8:00 PM EST, unless the foreign national can demonstrate that they have a credible qualifying bona fide relationship with a person, employer, or entity in the United States. Such individuals may qualify for a case-by-case waiver.

In addition, refugees will not be admitted to the United States for a period of 90 days, beginning June 29, 2017 8:00 PM EST, unless they can demonstrate a legitimate claim of “concrete hardship,” to be weighed against the country’s concern for its national security.

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On Monday morning, the United States Supreme Court announced that it will hear arguments for and against the President’s controversial executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” otherwise known as the “travel ban,”when it reconvenes in October of this year. The President’s executive order seeks to block the admission of foreign nationals from 6 predominantly Muslim countries (Syria, Sudan, Somalia, Iran, Libya, and Yemen) for a period of 90 days, and suspend the admission of refugees for a period of 120 days.

This announcement sets in motion the end of a long legal battle challenging the scope of the President’s executive power on immigration. This Fall, the Court will be tasked with determining whether the ban violates the establishment clause of the U.S. Constitution, as well as key provisions of the Immigration and Nationality Act, signed into law by Congress.

In the meantime, the Supreme Court has announced, in their per curiam opinion, that a limited version of the President’s executive order will remain in effect, until the Court makes its final ruling. In their opinion, the Court ruled that foreigners who have no ties or relationships in the United States may be prohibited from entering the country. This would include individuals applying for visas who have never been to the United States, or have no family, business, or other ties.

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In preparation for its legal showdown at the United States Supreme Court, on Wednesday, the Trump administration moved to amend the starting date of the President’s executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” an order which seeks to bar the admission of foreign nationals from Iran, Syria, Sudan, Libya, Somalia, and Yemen for a 90-day period. The Trump administration has moved to amend or change the starting date of the 90-day period of the order’s enforcement to avoid the case becoming “moot” when it reaches the Supreme Court, given that the period of the executive order’s enforcement was set to begin on March 16, 2017, and expire on Wednesday, June 14, 2017 thereafter. This 90-day period would essentially have given the Trump administration enough time to introduce enhanced security measures in its vetting of visa applicants.

Because the executive order was blocked by a federal judge from the state of Hawaii on Wednesday, March 15, 2017 (a day before the enforcement period was set to begin) with the issuance of a Temporary Restraining Order, the President’s executive order did not go into effect on March 16, 2017 as he had planned. The Trump administration’s efforts to halt the admission of Muslim foreign nationals from “countries of particular concern” and refugees was put on hold until the appellate courts ruled on the constitutionality of the travel ban.

Accordingly, the White House recently issued a memo indicating that parts of the executive order that have been placed on hold (pending litigation) cannot expire before they go into effect, and that the start date of the executive order would begin at the time the court injunctions (if at all) are lifted. In doing so, the Trump administration hopes that if the Supreme Court upholds the travel ban, the travel ban will go into effect immediately after the ruling is made.

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The United States Court of Appeals for the Ninth Circuit has dealt yet another blow to President Donald Trump’s embattled executive order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” an order which temporarily prevented the admission of foreign nationals from six predominantly Muslim countries (Syria, Sudan, Somalia, Iran, Libya, and Yemen) and the admission of all refugees. As previously reported, the case reached the Ninth Circuit Court of Appeals, where a three-judge panel heard arguments against the President’s travel ban, brought by the state of Hawaii as well as other individual Plaintiffs.

Together, Judge Hawkins, Gould, and Paez, grilled the U.S. Solicitor General, Jeffrey Wall, representing the U.S. government, and attorney Neal Katyal, representing the state of Hawaii, concerning the constitutionality of the President’s executive order. Like the Fourth Circuit Court of Appeals, the Ninth Circuit Court once against decided against the President’s executive order, albeit for different reasons. The Ninth Circuit Court’s ruling against the travel ban is the latest in a string of court rulings rejecting the President’s executive order on statutory grounds.

In their 86-page opinion, the Ninth Circuit Court of Appeals rejected the executive order on statutory grounds, stating that the President had exceeded his executive power and made an inadequate judgment call with the issuance of his executive order. “The Immigration and Nationality Act (INA) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show,” stated the Court, referring to the nation’s system of checks and balances. The Court added “we conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.” The Court further stated that the President’s executive order is at odds with various provisions of the Immigration and Nationality Act established by Congress, including a provision that prohibits nationality-based discrimination and a provision that requires the President to follow specific protocol when setting the annual cap on admission for refugees. The lower’s courts injunction on the travel ban will remain in place until a decision is issued by the U.S. Supreme Court.

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