President Donald Trump signed a new “travel ban” executive order on March 6, 2017, that takes effect March 16. Among other things, the new order revokes a previous order signed on January 27, 2017, and reduces to six, from the previous seven, countries whose nationals are suspended from entry under a “temporary pause.” The order exempts permanent residents and valid visa holders as of certain dates and times, and provides for case-by-case discretionary waivers. The order also suspends refugee travel to the United States for 120 days for those not previously admitted, subject to waivers in certain circumstances. The new order includes explanations of President Trump’s rationale for the order’s provisions.
Several states immediately filed or joined legal challenges against the new travel ban order, including Hawaii, Washington, New York, Oregon, and Massachusetts. The states challenging the ban did so for a variety of reasons. Bob Ferguson, attorney general for the state of Washington, said, “We’re asserting that the president cannot unilaterally declare himself free of the court’s restraining order and injunction.” He noted, “After spending more than a month to fix a broken order that he rushed out the door, the President’s new order reinstates several of the same provisions [as the earlier order issued in late January] and has the same illegal motivations as the original. Consequently, we are asking [U.S. District Court] Judge [James] Robart to confirm that the injunction he issued remains in full force and effect as to the reinstated provisions.”
Washington state’s ongoing lawsuit asserts that President Trump’s travel ban unconstitutionally violates the First Amendment’s Establishment Clause and the Equal Protection Clause, by disfavoring Islam. Mr. Ferguson noted that “Washington need not demonstrate that the ban impacts all Muslims, that it covers only Muslims or that it was motivated solely by anti-Islam animus. Rather, the state must establish that such animus was one motivating factor behind the Executive Order.” Washington’s lawsuit also argues that the President’s actions violate the Immigration and Nationality Act and the Administrative Procedure Act.
The new list of six countries on a “temporary pause” for entry of their nationals to the United States are Iran, Libya, Somalia, Sudan, Syria, and Yemen. The new executive order does not include Iraq, which the new order says “presents a special case.” The order notes that “[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.” The new list of countries is “subject to categorical exceptions and case-by-case waivers,” the order states. The new order makes an exception for nationals of the countries on the banned list who had a valid visa at certain specified times and dates; are permanent residents; have other valid travel documents; are dual nationals who are traveling on a passport issued by a non-designated country; are traveling on a diplomatic visa; have been granted asylum; are in refugee status and have already been admitted to the United States; or who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
The order also lists examples of possible discretionary waiver cases, such as returning students in an ongoing program of study, and calls for a review of all nonimmigrant visa reciprocity agreements and arrangements, among other things.
President Trump’s previous “travel ban” executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” was signed on January 27, 2017. Among the most controversial aspects of the order were a ban on entry to the United States for a period of 90 days for people from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; suspension of the U.S. Refugee Admissions Program for 120 days (with indefinite suspension for refugees from Syria); and prioritizing refugee claims based on religion. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a temporary restraining order on February 9, 2017, against key provisions of the travel ban. Among other things, the panel rejected the government’s argument that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable.
The new order is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states. A statement from Washington state’s attorney general’s office is at http://www.atg.wa.gov/news/news-releases/ag-ferguson-revised-trump-travel-ban-still-subject-injunction.