United States: Hawaii Federal Judge Blocks President Trump's New Travel And Refugee Ban

Executive Summary: On March 6, 2017, President Trump issued a new Executive Order (EO) entitled "Protecting the Nation from Foreign Terrorist Entry into the United States," which was to take effect today, March 16, 2017. The new EO explicitly revokes President Trump's earlier EO travel ban issued January 27, 2017. Although the new EO was more specific and narrowly drafted to address the judicial concerns that led to the first EO being blocked by federal courts and the Ninth Circuit, on March 15, 2017, a Federal judge in Hawaii granted a temporary restraining order blocking the Trump administration from enforcing or implementing two sections of the new EO: the travel ban on nationals of Syria, Sudan, Iran, Somalia, Libya and Yemen (Section 2) and 120-day suspension on all refugee entries (Section 6).  

This legal alert discusses the key provisions of the new EO, two of which are now temporarily blocked. 

March 6, 2017 EO

90-Day Entry Ban for Nationals and Citizens of Syria, Sudan, Iran, Somalia, Libya and Yemen (temporarily blocked as of March 15, 2017)

The March 6 EO would have banned the entry of certain nationals of Syria, Sudan, Iran, Somalia, Libya and Yemen for 90 days, unless they qualified for one of the stated exemptions or were granted a discretionary waiver. The March 6 travel ban excludes Iraq, which was one of the countries previously included in the first January 27 travel ban. The EO also provides for certain categorical exceptions to the ban and discretionary, case-by-case waivers, discussed below. 

Who would be subject to the new travel ban, which is now temporarily blocked?

The new travel ban would only apply to foreign nationals of the six named countries (Syria, Sudan, Iran, Somalia, Libya and Yemen) who:

  • are outside the United States on March 16, 2017;
  • did not have a valid visa at 5:00 p.m. EST on January 27, 2017; and
  • do not have a valid visa on March 16, 2017.

Who would be exempt from the new travel ban, which is now temporarily blocked?

The following categories of people, among others, would be exempt from the ban regardless of nationality:

  • any lawful permanent resident of the United States (i.e., "green card" holders);
  • an individual carrying a valid Advance Parole, or other non-visa travel document, that was valid/issued on or after March 16, 2017 and permits travel to the U.S.;
  • any dual national traveling on a passport issued by a non-restricted country;
  • any individual traveling on a diplomat-type visa, NATO visa, C-2 visa, G-1, G-2, G-3 or G-4 visa; and
  • foreign nationals already granted asylum or refugee status.

The EO also provides for discretionary waivers on a case-by-case basis if the individual can demonstrate that denying his entry during the 90-day ban would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest. The EO sets forth some examples of circumstances that might qualify for such a waiver: someone with "significant business or professional obligations" that would be impaired by the ban can seek a waiver; someone seeking to reunite with a "close family member" in the U.S.; someone seeking urgent medical treatment; landed Canadian immigrants who apply for visas at a consulate in Canada; and U.S. government-sponsored exchange visitors (J-1 status).

Changes to Screening and Vetting Standards

Other changes ordered by the EO include implementing uniform screening and vetting standards for all immigration programs. Like the first EO, the new EO directs the agencies to implement a program to identify individuals who seek to enter the U.S. on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group of people within the U.S., or who present a risk of causing harm subsequent to their entry. The new EO also directs agencies to expedite the completion and implementation of a biometric entry-exit system, which was mandated by Congress in 1996. While DHS implemented biometric entry in 2006 at all air, land, and sea ports, a comprehensive biometric exit system is not yet in place.

Like the first EO, it suspends the Visa Interview Waiver Program (VIWP), which had been widely implemented at high-volume consular posts around the world in recent years to allow consular officers to waive in-person interviews to renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification. Thus, it is very likely that wait times for nonimmigrant visa appointments will increase, particularly at high-volume posts.

Suspension of U.S. Refugee Program (temporarily blocked as of March 15, 2017)

The new EO would block the entry of any refugee to the U.S. for 120 days, subject to certain waivers. The new EO eliminated the previous permanent ban on Syrian refugees. The new EO caps the number of refugees who will be accepted to the U.S. for FY 2017 at 50,000, unless the President determines that additional entries would be in the national interest.

Enforcement

No immigrant or nonimmigrant visa issued before the effective date of the new EO is to be revoked pursuant to the EO. The EO also provides that any individual whose visa was marked revoked or marked canceled as a result of the first EO, "shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry."

The Bottom Line: While the new EO is more narrowly drafted than the first EO, as of March 15, 2017, a federal court in Hawaii has issued a nationwide temporary restraining order blocking the federal government from enforcing or implementing the entry ban and refugee suspension pending further litigation proceedings. Since the new EO was issued on March 6, 2017, legal challenges have been filed in other federal courts as well. The fate of this new EO is in the air as it faces opposition similar to the first EO. It is still possible that employees from the six banned countries may face additional scrutiny when they travel.

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.

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