New Trump proclamation changes the game on travel ban

By Pamela Wolf, J.D.

President Trump has issued a proclamation suspending and limiting the entry of foreign nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen from entry into the United States. The move comes after the completion of a vetting process laid out in Trump’s controversial Executive Order 13780 of March 6, 2017—the second version of the so-call “Muslim” or “travel” ban. This proclamation also arrives just ahead of the October 10 oral argument scheduled in the Supreme Court on challenges to EO 13780 that prompted two federal courts to preliminarily enjoin the travel ban in substantial part due to among others, Establishment Clause and equal protection concerns.

On September 25, the Supreme Court announced that it was accordingly cancelling the October 10 oral argument, directing the parties instead to file letter briefs by October 5 addressing whether the proclamation rendered the cases before the Court moot or whether the scheduled expiration of two Sections 6(a) and 6(b) of Executive Order No. 13780 might render those aspects of that case moot.

Trump’s first travel ban suspended entry of foreign nationals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Following challenges, the second iteration removed Iraq from the list but left intact the remainder of the list. Trump’s September 24, 2017, proclamation effectively removes Sudan from the travel ban and adds Chad, North Korea, and Venezuela to the list. From the beginning, Trump’s travel bans, which previously excluded foreign nationals from only Muslim-majority countries, have been seen by many as the fulfillment of his campaign promise to ban Muslims from the United States.

Notably, the proclamation’s new restrictions and limitations appear to be effective immediately for all foreign nationals of the countries also designated in EO 13780 who were not thereafter excluded from the travel ban by operation of the Supreme Court’s partial stay of preliminary injunctions against the executive order. October 18, 2017, is the effective date of restrictions and limitations for all other persons subject to the proclamation, including nationals of Iran, Libya, Syria, Yemen, and Somalia “who have a credible claim of a bona fide relationship with a person or entity in the United States,” as well as Chad, North Korea, and Venezuela. This later effective date appears to apply to foreign nationals who remained protected under the preliminary injunctions.

Travel ban challenges. EO 13780 has been challenged in many jurisdictions, most notably in Hawaii and Maryland, with preliminary injunctions by district courts in those locations upheld by the Ninth and Fourth Circuit Courts of Appeals, respectively. The cases traveled up to the Supreme Court and back on the question of the narrowed scope of the ban after the Justices granted certiorari, consolidated the cases, and provided a partial stay of the preliminary injunctions as to individuals who have no connection with the United States or have remote familial relationships that would not qualify as “bona fide.”

The state of Hawaii and the Trump administration battled over what the Supreme Court meant in determining that the travel ban would remain in effect as to those who did not have a “close familial relationship” to a person in the United States. The Supreme Court declined to take up the question, leaving the district court in Hawaii to interpret the Supreme Court’s order. The Hawaii district court concluded that a “close family relationship” did not exclude, as the administration’s guidance contended, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. It called the Administration’s definition the “antithesis of common sense.”

Vetting process. As required under Section 2 of EO 13780, the Secretary of Homeland Security, the Secretary of State, and the Director of National Intelligence conducted a worldwide review of information-sharing practices. After analyzing the collected information, the officials established a new information-sharing standard aimed at protecting U.S. national security that was communicated globally. Where practicable, the administration worked with countries determined to fall short of the mark to enhance information-sharing or formulate a plan to do so. After the engagement period, and based on the results, recommendations were made to further national security.

Restricted countries. The countries that did not adhere to the information-sharing standard include Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. While Somalia was compliant, there were other factors that landed the country on the list, including “significant identity-management deficiencies.” In a fact sheet, the Trump administration detailed the restrictions as to each country and the justifications for the actions. The following restrictions apply under the proclamation:

  • Chad: Entry of nationals as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.
  • Iran: Entry of nationals as immigrants and as nonimmigrants is suspended, except that entry by nationals of Iran under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals will be subject to enhanced screening and vetting requirements.
  • Libya: Entry of nationals as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.
  • North Korea: Entry of nationals of North Korea as immigrants and nonimmigrants is suspended.
  • Somalia: Entry of nationals as immigrants is suspended, and nonimmigrants traveling to the United States will be subject to enhanced screening and vetting requirements.
  • Syria: Entry of nationals of Syria as immigrants and nonimmigrants is suspended.
  • Venezuela: Entry of certain Venezuelan government officials and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.
  • Yemen: Entry of nationals as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.

The restrictions and limitations apply only to foreign nationals of the designated countries who are outside the United States on the applicable effective date of the proclamation, do not have a valid visa on the applicable effective date, and do not qualify for a visa or other valid travel document under Section 6(d) of the proclamation.

Exceptions. In a FAQ, the administration states that the suspension of entry does not apply to:

  • any lawful permanent resident of the United States;
  • any foreign national who is admitted to or paroled into the United States on or after the effective date of this proclamation;
  • any foreign national who has a document other than a visa, valid on the effective date of this proclamation or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;
  • any dual national of a designated country when the individual is traveling on a passport issued by a non-designated country;
  • any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
  • any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The proclamation is expressly limited to individuals who do not have a valid visa on the effective date of the proclamation.

Effective date. The restrictions and limitations on travel are effective at 3:30 p.m. Eastern Daylight Time on September 24, 2017, for foreign nationals who:

  • were subject to entry restrictions under Section 2 of EO 13780, or would have been subject to the restrictions but for the limitations on scope, exceptions, or waivers contained in Section 3 of that EO, and
  • lack a credible claim of a bona fide relationship with a person or entity in the United States.

The restrictions and limitations on travel are effective at 12:01 a.m. Eastern Daylight Time on October 18, 2017, for all other persons subject to this proclamation, including nationals of Iran, Libya, Syria, Yemen, and Somalia who have a credible claim of a bona fide relationship with a person or entity in the United States; and Chad, North Korea, and Venezuela.

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