Wednesday, July 25, 2018

All the dates for immigration orders...

Background on President Trump's Travel Orders

By Andrew R. Arthur on July 25, 2018

The Trump Travel Orders, and Resulting Litigation

On January 27, 2017, President Trump issued Executive Order 13,769 (EO-1) captioned "Protecting the Nation from Foreign Terrorist Entry into the United States".15 EO-1 suspended the entry into the United States of nationals of Iraq, Syria, Iran, Sudan, Libya, Yemen, and Somalia for 90 days.16 This suspension was intended to allow the Department of Homeland Security (DHS), in conjunction with the Department of State (DOS) and the DNI, to determine what information was needed:

[F]rom any country to adjudicate any visa, admission, or other benefit under the [Immigration and Nationality Act (INA)] in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.17

It also suspended the U.S. Refugee Admissions Program (USRAP) for 120 days to allow DOS and DHS, in consultation with the DNI, to review the USRAP process "to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States,"18 and suspended the admission of Syrian refugees "until such time as [the president has] determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest."19

On February 3, 2017, a federal district court judge in the Western District of Washington issued a temporary restraining order (TRO) preventing enforcement of these suspensions.20

On March 16, 2017, the White House issued a second executive order (EO 13,780) also captioned "Protecting the Nation from Foreign Terrorist Entry into the United States" (EO-2).21 Subsection 2(c) of EO-2 suspended the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days, subject to a number of limitations, waivers, and exceptions.22 Security and vetting concerns related to those six countries, which supported those suspensions, were set forth in section 1 of EO-2.23

Section 2(a) of EO-2 required DHS, in conjunction with DOS and the DNI, to:

[C]onduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.24

DHS was required to submit a report on the results of that review within 20 days of the effective date of that order.25

Unlike EO-1, EO-2 applied only to foreign nationals outside the United States without a visa.26 Like EO-1, EO-2 suspended USRAP for 120 days to allow DOS, in conjunction with DHS and DNI to:

[R]eview the USRAP application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.27

On May 25, 2017, the Court of Appeals for the Fourth Circuit issued a decision in International Refugee Assistance Project [IRAP] v. Trump, in which it enjoined the 90-day suspension in section 2(c) of EO-2.28 The plaintiffs there asserted that the national security purpose in EO-2 "was given in bad faith ... as a pretext for what really is an anti-Muslim religious purpose."29 The Fourth Circuit agreed, finding:

Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump's numerous campaign statements expressing animus towards the Islamic faith [including the statements cited above]; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting "territories" instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor's statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1. Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address national security interests, including the exclusion of national security agencies from the decision making process, the post hoc nature of the national security rationale, and evidence from DHS that EO-2 would not operate to diminish the threat of potential terrorist activity.30

Based on this, the court then concluded:

Plaintiffs have more than plausibly alleged that EO-2's stated national security interest was provided in bad faith, as a pretext for its religious purpose. And having concluded that the "facially legitimate" reason proffered by the government is not "bona fide," we no longer defer to that reason and instead may "look behind" EO-2.31

"Looking behind" EO-2, the court found, meant applying the so-called Lemon test to determine whether EO-2 violates the Establishment Clause.32

In this context, the Establishment Clause refers to the first provision in the First Amendment to the Constitution, which states: "Congress shall make no law respecting an establishment of religion ... . "33 "This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another."34

The Lemon test was set forth by the Supreme Court in its decision in Lemon v. Kurtzman.35 As the Heritage Foundation states:

The Lemon test requires courts to consider whether the law in question has (1) a secular purpose, (2) a primary effect that neither advances nor inhibits religion, and (3) does not create excessive entanglement with religion.36

After reviewing statements of candidate Trump, President Trump, and the president's spokesman and advisors, the Fourth Circuit found "that the reasonable observer would likely conclude that EO-2's primary purpose is to exclude persons from the United States on the basis of their religious beliefs,"37 and therefore concluded "EO-2 likely fails Lemon's purpose prong in violation of the Establishment Clause."38 Having reached this conclusion, the Fourth Circuit found that "Plaintiffs are likely to succeed on the merits of their Establishment Clause claim."39

In this decision, the Fourth Circuit improperly applied Supreme Court precedent in Kleindienst v. Mandel,40 as the dissent noted.41 In Mandel, the Court held:

[P]lenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. ... We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. [Emphasis added.]42

EO-2 was both facially legitimate and facially bona fide. The clauses in subsection 1(e) of that executive order stated, with respect to each of the six affected countries "why their nationals continue to present heightened risks to the security of the United States."43 For example, with respect to Iran, EO-2 states:

Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted al-Qa'ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts.44

Subsequently, on September 24, 2017, President Trump issued Presidential Proclamation No. 9645, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States By Terrorists or Other Public-Safety Threats" (EO-3).45 That proclamation, which succeeded EO-2, indefinitely suspended the entry of some or all immigrants and/or nonimmigrants from eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.46 These restrictions apply only to nationals of those countries who are outside of the United States and who do not have a valid travel document.47

Those designations resulted from the report required by EO-2. That report established a "baseline" for the types of information required to determine whether a foreign national should be allowed to enter the United States. The baseline consisted of three categories of criteria relevant to the ability of the United States "to confirm the identity of individuals seeking entry ... and ... assess whether they are a security or public-safety threat."48

The first category is "identity-management information", which "focuses on the integrity of documents required for travel to the United States."49 Its purpose is to determine whether applicants for immigration benefits are who they claim to be.

The second category is "national security and public-safety information".50 This category focuses on whether the country in question provides criminal and terrorist information to the United States about individuals seeking entry upon request, and whether it provides exemplars of travel documents.

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