This morning, President Trump signed a new executive order implementing a temporary travel ban from six Muslim majority countries and a temporary suspension of the Refugee Admission Program. The order replaces the January 27 executive order whose implementation was halted by multiple federal courts last month. In a joint press conference, Secretary of State Rex Tillerson, Attorney General Jeff Sessions, and Secretary of the Department of Homeland Security announced the order.
Substantively, the new order is similar in objective to the original, but the revised order contains many of the revisions that Peter Margulies anticipated on Lawfare last week, revisions that significantly soften it around the edges. The new order is crafted far more carefully in an obvious attempt to avoid legal challenges that halted implementation of the January order, so let’s start with what has changed. The new order:
- no longer includes Iraq, noting that the U.S. and Iraqi governments have reached agreement about enhanced screening from Iraqi airports.
- specifies whom it does not affect: foreign nationals with valid visas, including those who had valid visas prior to the signing, and refugees whose travel to the U.S. has already been scheduled with the Department of State.
- no longer singles out Syria for “indefinite” suspension of the refugee program; instead, the temporary suspension of the program applies to all countries.
- eliminates any preference for religious minorities.
- delays implementation for ten days, until March 16, 2017, presumably to avoid a situation in which people engaged in ongoing travel receive a very rude shock at a U.S. port of entry.
- authorizes consular officials to waive the travel restriction on a case-by-case basis if the official determines the restriction would pose an undue hardship and that the entry would not pose a national security threat and would be in the national interest.
- authorizes the Secretaries of State and Homeland Security to jointly waive the temporary refugee restriction on a similar determination that accepting the refugee would not pose a national security threat and would be in the national interest.
- has a conspicuously more controlled and traditional rollout, including a fact sheet summary and FAQs that explain the order’s impact for certain foreign nationals.
- contains noticeably toned-down language in the policy section, eliminating the section describing “those who would place violent ideologies over American law.”
The New Executive Order
The new Executive Order bans travel from six Muslim majority countries—Sudan, Syria, Iran, Libya, Somalia, and Yemen—for 90 days. It suspends the Refugee Admission Program (USRAP) for all countries for 120 days, and imposes a cap of 50,000 refugees in 2017 once the program resumes.
- Section 1: “Policy and Purpose”
The new order highlights the policy of improving visa-issuance and USRAP protocols and procedures. Section 1 defends the legality of the January order, including the refugee program preference for religious minorities, noting that the preference applies to refugees from all countries, including Muslim-minority countries.
Likewise, the new order offers a paragraph on each country explaining why additional procedures are needed to avoid “the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States,” highlighting, for example, ongoing conflicts in each state or state sponsoring of terrorism. This extended section is clearly an effort to supply an administrative record to which government litigators may demand deference from the courts.
In a key change, the new executive order exempts Iraq from the temporary travel ban. It explains that Iraq is a “special case,” that the Iraqi government is a key ally in the fight against ISIS, and that the Iraqi government has taken steps to enhance screening. While “granting admission to Iraqi nationals should be subjected to additional scrutiny” under Section 4 of the order to identify applicants with possible ties to ISIS, Iraq is not subject to the 90-day travel ban.
Finally, Section 1 explains that the new order specifically addresses the Ninth Circuit’s concerns with the original order, “expressly exclud[ing] from the suspensions categories of aliens that have prompted judicial concerns” and clarifying other issues.
- Section 2: “Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period”
Section 2 directs Homeland Security to conduct a review and produce a report to the President and other key cabinet-level officials on what additional information would be needed from each country to determine whether a possible entrant poses a threat. The Secretary of State is then to request that the countries provide that additional information within 50 days. The restriction will be lifted or reevaluated based on whether the Secretary of Homeland Security is able to certify either that the country provided the requested information or that it has a adequate plan to provide it.
While that review is being conducted, the order imposes a 90-day suspension on entry for nationals of those six countries, subject to exceptions and limitations in sections 3 and 12 of the order. The Secretaries of Homeland Security or of State or the Attorney General may submit additional countries to the President similar treatment and review.
- Section 3: “Scope and Implementation”
Section 3 provides the key differences from the original order, specifically exempting foreign nationals who had valid visas prior to the January 27 original order or who have a valid visas prior to March 16. It also specifies categories of foreign nationals to whom the order does not apply: U.S. green card holders, dual citizens traveling on passports issued by a non-covered country, foreign nationals already admitted to the United States, those traveling on diplomatic passports, and refugees and asylees already settled here.
Section 3 opens a significant loophole for individual consular officials to issue visas at their sole discretion notwithstanding the order. If a consular official or U.S. Customs and Border Patrol determines that denying the visa would cause an undue hardship and that its issuance would not pose a national security threat and would be in the national interest, the consular official may issue the visa. The order lists factors that may be relevant for such a waiver, including, for example, significant prior contacts with the United States or purposes such as business travel or urgent medical need, but leaves the ultimate determination entirely to the consular official.
- Section 4: “Additional Inquiries Related to Nationals of Iraq”
Instead of having Iraq covered by the travel ban, the order specifies additional screening considerations for travelers from Iraq, including whether the applicant have connections with ISIS.
- Section 5: “Implementing Uniform Screening and Vetting Standards for All Immigration Programs”
The order instructs the Secretaries of State and Homeland Security, the Attorney General, and the Director of National Intelligence to develop uniform vetting standards, create a database of identity documents, and development mechanisms to identify fraudulent attempts at entry.
- Section 6: “Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017”
Section 6 suspends the U.S. refugee program and delays all decisions on pending refugee applications for 120 days, while Homeland Security and the Director of National Intelligence review the procedures for identifying refugee threats. Unlike the prior order, the section specifically exempts refugees who have already formally scheduled travel to the United States with the State Department. Like the old version, the order implements a 50,000 refugee cap for 2017 once the program resumes, which is down from the 110,000 refugees the Obama administration had planned to admit this year. Unlike the old version, it does not treat Syria differently from other countries.
- Sections 7-10: “Terrorism Grounds for Inadmissibility, Biometric Entry-Exit Tracking System, and Visa Interviews and Reciprocity”
Section 7 directs consideration of additional directives or guidance from State and Homeland Security on the terrorism grounds for inadmissibility under the Immigration and Nationality Act. Section 8 directs Homeland Security to expedite the completion of a biometric entry-exit tracking system and submit progress reports.
Section 9 suspends the Visa Interview Waiver Program, making in-person interviews mandatory for all nonimmigrant visas, subject only to statutory exemptions. The order likewise directs the Secretary of State to expand the staffing of the Consular Fellows Program to conduct these interviews while avoiding significant increases in wait times.
Section 10 directs a review of all nonimmigrant visa reciprocity agreements with foreign states to match fees and other treatment of U.S. citizens applying for nonimmigrant visas (such as work visas) in foreign countries.
- Section 11: “Transparency and Data Collections”
Section 11 primarily directs the relevant agencies to periodically report to the public on the number of terrorism-related offenses, convictions, and removals, radicalization in the U.S. of foreign-born immigrants, and gender-based violence perpetrated by foreign nationals in the U.S.
- Sections 12-16: Enforcement, Revocation of the Original Executive Order, Effective Date
The final sections of the order reiterate various exemptions, including refugees or foreign nationals who are already lawfully present in the U.S., establish an effective date of 12:01am on March 16, 2017, and formally revoke the January order.
The Presidential Memorandum
In addition to the new executive order, President Trump also issued a presidential memorandum today directing the Departments of Homeland Security, State, and Justice, as well as other agencies, to develop additional procedures to enhance screening of all entrants to the U.S., and to “rigorously enforce all existing grounds of inadmissibility and to ensure compliance with related laws after admission.” (This statement may suggest an intent to more rigorously enforce standards like the “public charge” law, the subject of a leaked executive order proposal from January.) The memorandum directs the Secretaries of State and Homeland Security to issue periodic public reports on the number and country of origin of immigrants admitted to the U.S.; the number of changes to immigration status of noncitizens by class of admission and nationality; the cost of the refugee program across federal, state, and local jurisdictions; and the number of refugees who are living in countries of first asylum for the same cost as it would take the United States to support those refugees, “taking into account the full lifetime cost of Federal, State, and local benefits.”
ICYMI: Lawfare’s Coverage of the Lead-Up to the New Executive Order
Peter Margulies argued that the reported changes to the order, which in fact materialized today, “place the administration in a materially better legal position.”
Nora Ellingsen analyzed the leaked Department of Homeland Security assessment that does not support White House assertions about threats from the restricted countries. (For more, see Nora’s prior piece on what the data really show about the threat from these countries.)
Susan and Ben responded to concerns of a group of Foreign Service officers about whether the Administration was considering all relevant information, including the Consular Consolidated Database, to inform an honest risk assessment in crafting a travel restriction.