Travel Ban 3.0: Trump Announces Indefinite and Expanded Travel Suspension for Eight Designated Count
On September 24, 2017, President Trump unveiled new travel restrictions for eight designated countries through his Presidential Proclamation “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into The United States by Terrorists or Other Public-Safety Threat.” The Proclamation, which has the same legal effect as an Executive Order, was issued on the same day the partial enforcement of the travel ban under the 2nd Executive Order (March 6, 2017) ended. In June 2017, the U.S. Supreme Court permitted partial implementation of the 90-day travel ban for foreign nationals from six designated countries - Iran, Libya, Somalia, Sudan, Syria and Yemen, which was set to expire on September 24, 2017. The President’s Proclamation replaces and expands the previous travel ban in restricting travel and entry into the United States for five of the six designated countries – Iran, Libya, Somalia, Syria, and Yemen – with Sudan being removed from the list for its compliance with U.S. security mandates. Three new countries were also added to the list of designated countries subject to the travel restrictions. In addition to Chad, the Proclamation adds two non-Muslim countries to the travel ban: North Korea and Venezuela. The new travel restrictions will be phased-in in two stages with Iran, Libya, Somalia, Syria, and Yemen taking immediate effect on September 24, 2017, and Chad, North Korea and Venezuela taking effect on October 18, 2017. The Proclamation was issued to enhance the President’s policy to protect U.S. citizens from terrorist attacks and other public safety threats by increasing the screening and vetting procedures and protocols necessary to implement this policy. Under the 2nd Executive Order, the Department of Homeland Security (DHS) conducted a worldwide review of the information each foreign country would need to provide in order for the U.S. government to confirm the identity of foreign nationals seeking entry as immigrants and nonimmigrants into the United States. The DHS assessed all foreign countries through its baseline criteria: (1) whether the foreign country has identity management protocols, i.e. electronic passports and procedures and protocols for lost and stolen passports; (2) whether the foreign country is compliant with information-sharing with the United States on individuals who pose a threat to U.S. national security; and (3) whether the foreign country is a known or potential safe haven for terrorists. The foreign countries that were identified as “inadequate” or “at risk” for not meeting the baseline criteria were given 50 days to make improvements. Based on the DHS’ non-compliance report, the President imposed travel restrictions on the eight designated countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Country-Specific Travel Restrictions Unlike the two previous Executive Orders that provided blanket restrictions for all designated countries, the President’s Proclamation provides specific travel restrictions for each designated country. The entry of all immigrants is suspended from the designated countries, except for Venezuela. All travel and entry into the United States is suspended from the eight designated countries in the following manner:
Effective Dates and Enforcement For foreign nationals from the remaining five designated countries who were subject to the travel ban under the 2nd Executive Order, the travel restrictions through this Proclamation went into immediate effect at 3:30pm EST on September 24, 2017. For all other foreign nationals from Chad, North Korea, and Venezuela, the travel restrictions through this Proclamation will go into effect at 12:01am EST on October 18, 2017. The travel restrictions will be enforced indefinitely, or until the eight designated countries satisfy the DHS’ baseline criteria. The DHS will review and report the foreign countries’ compliance with the U.S. security mandates every 180 days starting from the issuance date of this Proclamation. The travel restrictions only apply to foreign nationals from the eight designated countries who are outside the United States and who do not possess an immigrant or nonimmigrant visa on the effective dates of the Proclamation. Immigrant or nonimmigrant visas already issued to foreign nationals from the eight designated countries will not be revoked. In addition, foreign nationals whose visas were revoked or cancelled as a result of the 1st Executive Order on January 26, 2017 are entitled to a travel document stating that they are permitted to travel under the revoked or cancelled visa. Exceptions Similar to the travel ban under the 2nd Executive Order, lawful permanent residents from the designated countries, and dual citizens from the designated countries who use a passport from a non-designated country are not subject to the travel restrictions. In addition, the travel restrictions do not apply to foreign nationals from the designated countries who are in the United States on or after the effective dates. Waivers Waivers are available on a case-by-case basis for foreign nationals subject to the new travel restrictions. The foreign national must demonstrate (1) that the denial of entry will cause the foreign national to experience undue hardship, (2) the foreign national does not pose a threat to national security and public safety, and (3) the foreign national’s entry will be in the national interest. Some examples of individual circumstances that warrant a waiver are:
Foreign nationals who have been previously admitted to the United States for work or school and seek to reenter to resume that activity;
Foreign nationals who have significant business or professional obligations in the United States and denial of entry will impair these obligations
Foreign nationals who have a close family member – spouse, child, parent – who is a U.S. citizen, lawful permanent resident, or lawful nonimmigrant
Foreign nationals who are landed Canadian permanent residents
Effect on Federal Litigation In response to the President’s Proclamation, the U.S. Supreme Court cancelled upcoming oral arguments in the federal case on the constitutionality of the 2nd Executive Order. The U.S. Supreme Court instead instructed the parties to file briefs by October 5, 2017 on whether the issues of violation of freedom of religion and the statutory authority of the President to issue the travel ban are now moot, since the 90-day travel ban under 2nd Executive Order expired on September 24, 2017. The addition of North Korea and Venezuela to the new list of designated countries has been deemed by critics as an effort by the Trump Administration to avoid the federal litigation and resulting injunctions that plagued the first two Executive Orders. By adding non-Muslim countries, the Administration can better support its argument that the travel restrictions are solely motivated by national security concerns, and do not target or discriminate against Muslims.