United States: Some Context For Trump's New Immigration Executive Order

President Donald Trump's issuance of an executive order on Jan. 27, banning travel to the U.S. for 90 days by nationals of seven predominantly Muslim countries, and putting a halt to the U.S. refugee assistance program for 120 days, has sown confusion and spurred anger in the few days it has been in effect. In addition to the controversy over its substance, arguments are raging over the White House's claims of precedent for the executive order, and the implications of implementing "extreme vetting."

A Short Overview

First, let's go over what the new executive order requires. Under its provisions:
 

  • Individuals holding nationality from Iran, Iraq, Syria, Sudan, Somalia, Libya and Yemen (the seven countries) may not travel to the U.S. for at least 90 days unless they are also dual U.S. citizens or U.S. lawful permanent residents.
     
  • The U.S. refugee assistance program is suspended for 120 days; no refugees will be processed or permitted to enter the country during that period.
     
  • The purpose of both actions is to allow the U.S. State Department and the U.S. Department of Homeland Security to develop an "extreme vetting procedure" above and beyond the checks currently conducted by the agencies.

Precedent for the List of Countries

The White House has claimed that the list of seven countries is the same as a list created by the Obama administration. While the list is the same, understanding its origin and use requires context.

The VWP Amendment and the Seven Countries

In December 2015, the Republican Congress passed the Visa Waiver Program Improvement and Terrorist Travel Prevention Act (VWP amendment), which restricted the ability of certain foreigners to enter the United States without a visa. That bill was strongly resisted behind the scenes by the Obama administration in negotiations with the Hill, and some modifications were made at the administration's request. Other changes were rejected by Republican negotiators, and ultimately the bill was enacted as part of the large, year-end, must-pass appropriations bill. Faced with the imperative of funding the government, President Barack Obama signed the appropriations bill and thereby enacted the VWP amendment.

The VWP amendment prohibited visa-free travel to the U.S. by anyone who had traveled to, or was a dual national of Iraq, Syria, or any country on a U.S. government list of state sponsors of terrorism. That list consists of Iran and Sudan. The VWP amendment also gave the secretary of homeland security 60 days to determine, pursuant to listed criteria, whether other countries should be included on the list. In compliance with the law, after consulting with the director of national intelligence and the secretary of state, in February 2016 the homeland security secretary added Libya, Somalia and Yemen to the list, bringing the number of affected countries to seven.

Key Distinctions

While the new executive order utilizes the same list the Obama administration used with regard to the visa waiver program, there are some crucial distinctions:
 

  • The statute did not ban travel. To the contrary, it merely denied certain people connected to these countries the privilege of visa-free entry, requiring instead that they obtain a visa. This is no different than what is required of nationals from more than 80 percent of the countries in the world who do not qualify for the visa waiver program (including Israel, Brazil, Mexico and South Africa, and all other nationals of the seven countries). Think of it as revocation of your access to the pre-check line at the airport, not being barred from all flights.
     
  • As discussed above, the list was primarily created by Congress, over objections from the Obama administration, though three countries were added by the DHS pursuant to the statute.
     
  • Congress created, and the Obama administration executed, exceptions and waiver authority, permitting even certain individuals who would otherwise lose their VWP privileges under the VWP amendment to receive visa-free travel to the U.S. These included individuals who had traveled to one of the seven countries as part of a VWP country's military, for legitimate business purposes, for nongovernmental organizations, as journalists, as well as members of U.S. Customs and Border Protection's "Global Entry" program.
     
  • Unlike the executive order, the VWP amendment created no exemption for religious minorities. Indeed, religion played no role in the adjudication of the VWP amendment's provisions.

Suspension of the Refugee Program

With regard to suspension of the refugee program, the White House has cited a 2011 six-month ban on refugees from Iraq, following the arrest in Kentucky of two Iraqi nationals on federal terrorism charges. As the Washington Post and others have reported, the U.S. government did at the time reexamine the records of 58,000 Iraqi refugees already in the U.S., leading to a slow-down in processing of Iraqi visa applications, but Iraqi resettlement was never actually stopped or banned.

"Extreme Vetting"

As noted, the executive order calls a halt to any admission of these individuals into the U.S. for several months. It does so in order to implement what the president has termed "extreme vetting." Again, some context is useful. Currently Syrian refugees undergo the most thorough vetting of anyone entering the U.S. As the New York Times has reported, Syrian refugees must pass through as many as 20 different stages of vetting, including three personal interviews, three background checks and three fingerprint screens, to be allowed to enter the U.S. On average, it takes 18 to 24 months for a Syrian refugee to complete this vetting process, with approximately half failing the vet. If all refugees seeking to come to the U.S. and all immigrants (refugee or not) from the seven countries were to submit to such a vet, let alone something more "extreme," they would have to wait at least this long (probably longer) and face odds of failing the vet that are at least as daunting.

Perhaps more to the point, the DHS and State would have to multiply many times over the resources currently devoted to Syrian refugee vetting. It is unclear how the U.S. government will find the personnel for such an effort, particularly in light of the fact that it has just imposed a hiring freeze. The demand for resources will skyrocket while no additional resources will be available. Something will have to give.

Finally, as some observers have noted, the major terrorist incidents that have hit the United States in recent years — including 9/11, Fort Hood, the Boston bombing, San Bernardino and Orlando — were perpetrated either by U.S. citizens or nationals of countries other than the list of seven. This means that either we have gotten lucky regarding the seven countries, these countries are not the main concern or the existing vetting process for these countries is working.

Originally published in Law360, New York (January 31, 2017, 12:02 PM EST) – 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
16 Oct 2017, Seminar, San Diego, United States

P.S.R. is the only event that brings you the best of privacy and security in one brilliant (and completely unique) cross-industry conference. And this year, we’re heading to San Diego with even more programming. The main conference now begins on Monday evening, 5 p.m. sharp, with Monday General Session—right after training and workshops end.

17 Oct 2017, Seminar, California, United States

Covering topics such as promotions and sweepstakes, mobile advertising challenges, privacy considerations, claim substantiation and more, this expansive program will equip you with the tools you need to practice advertising law today.

17 Oct 2017, Seminar, California, United States

Please join us for Sheppard Mullin's Labor & Employment Law Update & Happy Hour Seminar Series. 2017 presents significant developments in California labor and employment laws that will affect the way you run your day-to-day business operations. We will provide analysis and insight on these new laws, as well as offer practical advice and helpful tools for employers to protect their organizations from liability in the workplace.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.