By: Marjan Kasra, Esquire & Babak Hojjat, J.D.
Under the Trump administration, entry into United States has been severely restricted for nationals of certain countries. Under Travel Ban 1.0, there was extreme chaos experienced at all ports of entry into United States. Airlines refused to board nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen on January 27, 2017, the implementation date of the first Travel Ban. The constitutionality of the executive order was suspect from the get-go especially since the population of all these countries was predominantly comprised of Muslims. Travel Ban 1.0 caused extreme chaos at the airports, where even U.S. legal permanent residents (green card holders) were denied entry. This is due to the poorly written Travel Ban 1.0 and lack of warning or guidance from the administration and the Department of Homeland Security (DHS) to Customs and Border Protection (CBP).
As a result of Travel Ban 1.0, all existing immigrant and nonimmigrant visa appointments were cancelled and none of the already issued visas were being honored. Airlines stopped boarding individuals from said 7 nations for fear of being fined, and people who had already arrived at the U.S. ports of entry were being detained and refused entry. This caused tremendous stress for not only the foreign nationals, but also for their U.S. counterparts. Following a week of public protests at the airports nationwide, a federal judge in Seattle blocked U.S. President’s executive order which by that time was being called the “Muslim Ban.”
The restraining order as issued by the Seattle Judge prompted the Department of State to restore visas and visa appointments of the affected nations. In addition, Homeland Security suspended all actions in terms of enforcing the ban.
Amid the chaos and confusion, the American Civil Liberties Union filed a class-action case on behalf of two nationals with valid visas who were blocked entry at JFK international airport. A few days later, a federal judge in New York issued an emergency stay of removal, effectively stopping Department of Homeland Security from removing all visa holders and refugees with approved application on U.S. soil. Similar lawsuits followed against Trump in Virginia, Washington, Boston and Los Angeles.
The underlying theme of the grievance against the administration was rooted in violations of due process under Fifth Amendment as well as violations of the Establishment Clause of the First Amendment (as asserted by the Virginia Lawsuit).
After months of litigation, Travel Ban 2.0, a more “watered-down” version of the first one was introduced on June 29, 2017. Emergency motions were filed in Hawaii before the ban even went into effect, claiming that the Trump Administration was yet again attempting to ban certain class of individuals (Muslims) from entering the country.
This time around, Travel Ban 2.0 asserted that foreign nationals must prove a form of relationship with a parent, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law or sibling in the US in order to enter the country. Other family members, including grandparents were initially excluded as they did not count as a “bona fide” relation to the foreign national, and later included (following lawsuits).
Unlike the original Ban, with this version, existing Green Card holders and those with the stated “bona fide” U.S. family members were exempt from the Ban.
On the eve of the Travel Ban 2.0 going into effect, Federal Judges in both Hawaii and Maryland put the Ban on hold to more fully consider its constitutionality. After much litigation, in June of 2017, right before the Supreme Court took its summer recess, it gave the administration the win it needed…the Supreme Court’s ruling was unsigned by liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), but effectively lifted the hold on the ban. Conservative Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito argued that the Trump administration should be allowed to enforce the Travel Ban in all cases. This allowed the Trump administration to bar citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the U.S. for 90-days, and to bar nearly all refugees from entering the U.S. for 120 days.
Then came Travel Ban 3.0…..On September 24, 2017, Presidential Proclamation 9645 (no longer entitled “Executive Order”) was issued which imposed restrictions on eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. It also imposed added security measures on Iraqi citizens. Both 9th Circuit (Hawaii Plaintiffs) and 4th Circuit (Maryland Plaintiffs) issued injunctions against Travel Ban 3.0, again rendering the travel ban ineffective. However this time the Supreme Court, on December 4, 2017 granted the Trump Administration’s motions for emergency stay of preliminary injunctions.
Following said Supreme Court decision, President Trump’s most recent travel ban went into effect on December 8, 2017 for the predominantly Muslim countries while the appeals were still pending. The Supreme Court encouraged the appeals courts to quickly decide whether the most recent travel ban was lawful.
Effectively, the Presidential Proclamation appears to have resulted in the categorical denial of Immigrant Visas to unassuming families of U.S. Citizens (and LPR’s) who have waited between 1-13 years for a Visa to become available (wait time depends on which family or employment-base category is utilized).
Unlike Travel Ban 1.0, the visas issued to affected individuals prior to the Proclamation have not been revoked. However, there have been several reported incidents of invasion of privacy and prolonged questioning of the affected foreign nationals entering United States. There have been reports of similar abuse for even U.S. Citizens and Green Card holders who were born in the affected nations.
Unlike Travel Ban 1.0, under the existing Travel Ban, National Visa Center (NVC) continues to issue visa appointments. However, upon an interview at a given U.S. Consular Post, everyone (with a few visa category exceptions afforded some of the countries) is categorically denied a visa under with a generic statement reading “…a consular officer found you ineligible for a visa under Section 212(f) of the Immigration and Nationality Act, pursuant to Presidential Proclamation 9645. Today’s decision cannot be appealed.”
Said denial notice then allows the U.S. Consular Post Officer to check mark one of the two indicated options: 1) A denial with no option to file a Waiver; or 2) A denial with an option to file a Waiver.
Although a Waiver process is supposed to be possible, it is unclear as to what standards of proof are being used to make this determination. Department of State issued a guidance on December 4, 2017, which is effectively a reiteration of the Presidential Proclamation without much added clarity. The DOS “guidance” indicates a Waiver from the Presidential Proclamation may be granted on a “case-by-case basis”, if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that:
(a) Denying entry would cause the foreign national undue hardship;
(b) Entry would not pose a threat to the national security or public safety of the U.S.; and
(c) Entry would be in the national interest;
However, according to a bipartisan Senate letter (Jeff Flake & Chris Van Hollen) to the Secretary of the State (dated January 31, 2018), “…we have received reports of uniform denial of waivers for visas.” Furthermore, DOS has failed to provide the public with definitive guidance on waivers and to provide the qualifications and standard of proof for establishing waiver eligibility.
To make matters more complicated, on February 6, 2018 President Trump ordered establishment of a new government agency, “National Vetting Center,” housed with Department of Homeland Security, with a focus on further screening of immigrants, refugees, and other visitors. It is unclear as to what standards will be used by the National Vetting Center, and whether these standards are uniform for all nationals, or whether the Administration will continue to target nationals of certain countries.
The Supreme Court hearings on Travel Ban 3.0 are to be held on April 25, 2018, and the general consensus in the legal community is that the Supreme Court will in all likelihood avoid making a merits based determination of the Travel Ban. It is now up to the U.S. Supreme Court to decide whether the Judiciary will defer to the Executive Branch when it comes to matters of national security, and in that balancing act hangs the fate of millions of affected individuals from the predominantly Muslim nations.