39 days after the first travel ban, Trump has signed his second. This second order takes effect on March 16th, and at that point it will rescind the first order and start the clock on new temporary bans and new permanent procedures. Plenty of news sources give interpretations, but as usual I wanted to see the source document for myself and trace the documents it references. Here’s what I found…
[Update 3/9/2017: The first court case challenging this Executive Order has started: Hawaii v Trump.]
[Update: 3/9/2017: added links to the newly published Federal Register version of the document.]
Legal Challenges (section added 3/14/2017)
Some of the legal challenges from the original travel ban are carrying over, and Hawaii v Trump started after the new travel ban was signed.
- Hawaii v Trump
- International Refugee Assistance Project (“IRAP”) v. Trump
- State of Washington v. Trump (Minnesota is no longer a party to this lawsuit, see footnote 1 of this order)
All three cases have hearings scheduled for Wednesday 3/15/2017, and all three are seeking to block the new travel ban from going into effect on 3/16/2017.
Update 3/15/2017: Judge Watson (Hawaii) has issued a nation-wide Temporary Restraining Order, halting the implementation of Section 2 and Section 6 of this Executive Order. This mirrors the TRO that halted the last Executive order. The ruling is… pointed:
- “Because the Executive Order at issue here cannot survive the secular purpose prong, the Court does not reach the balance of the criteria.” (page 29)
- “The illogic of the Government’s contentions is palpable.” (page 30)
- “It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” (page 33)
- “When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ TRO.” (page 42)
Update 3/16/2017: Judge Chuang (Maryland) has issued a nation-wide Temporary Restraining Order, halting the implementation of section 2(c) of this Executive Order. This ruling is less pointed than Judge Watson’s. Here is the rationale for the section of the Order that is blocked:
- INA arguments:
Plaintiffs pointed out that 8 U.S. Code § 1152(A) prohibits immigration discrimination based on nation of origin, but the Judge says that prohibition probably doesn’t apply in this case: “They have not shown a likelihood of success on the merits of the claim that § 1152(a) prevents the President from barring entry to the United States pursuant to § 1182(t), or the issuance of non-immigrant visas, on the basis of nationality.” (page 24)
- Establishment Clause arguments:
Plaintiffs argue that religiously based bans violate the Establishment Clause of the First Amendment. The Judge agrees that they are likely to succeed with that argument: “But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban.” (page 37)
- The result:
“Plaintiffs have asked the Court to issue an injunction blocking the Executive Order in its entirety. The Court declines to grant such broad relief. The Plaintiffs’ Establishment Clause and INA arguments focused primarily on the travel ban for citizens of the six Designated Countries in Section 2(c) of the Second Executive Order. The Court will enjoin that provision only.” (page 40)
Update 3/17/2017: Judge Robart (Washington State) has issued an order denying the request to extend the Temporary Restraining Order imposed on the first executive order and apply it to the second executive order. The defendants in this case appear to have asked that the old TRO be applied to the new executive order rather than asking to have a new TRO applied to the new executive order.
- “In this instance, the court agrees with Defendants that the court’s preliminary injunction should not automatically extend to [the new Executive Order, EO2].” (page 7)
- “The court does not say, however, that Plaintiffs are not entitled to a temporary restraining order or preliminary injunction with respect to certain aspects of EO2. The court makes no ruling on that issue, and notes that Plaintiffs have now filed a motion for a temporary restraining order with respect to EO2.” (page 8) And here is that motion.
Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States [full document]
Quote: “By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq. [remember, those are two ways of citing the same set of laws], and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:…”
Section 1: Policy and Purpose
Quote: “I am imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers, as described in section 3 of this order.”
This section does three things:
- It lays out the history of the previous Executive Order (which I previously wrote about) in some detail, including reasons that the White House felt the first order was justified.
- It lays out country-by-country justifications for increased scrutiny of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen (as well as reasons that Iraq is now left off of the list). Unlike last time, this time it actually names each country.
- It lays out justification for the current ban, including a paragraph listing several immigrant criminals from recent history.
Let’s take the main paragraphs in order.
The Order says that the descriptions of each of the countries is “taken in part from the Department of State’s Country Reports on Terrorism 2015.” This is part of a suite of reports put out regularly by the Department of State as required by Title 22 Section 2656f of the United States Code. (The report refers to ISIL rather than ISIS, so if you go searching through it keep that in mind.) The reports include general Country Reports on 87 countries (4 of which are included in this order, and 3 of those 4 are also included in the specialized sections on State Sponsors of Terrorism or Terrorist Safe Havens), plus reports on 3 countries that are “State Sponsors of Terrorism” (all of which are mentioned in this order), and 13 countries that are “Terrorist Safe Havens” (4 of which are mentioned in this order, though one of those 4 is Iraq, which is not banned).
The order gives these descriptions, which I’ve quoted and then added links to sources:
- Quote: 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. (All contained in the State Sponsors of Terrorism chapter of the report.)
- Quote: Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States’ counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United States Embassy in Libya suspended its operations in 2014. (This information comes from the Terrorist Safe Havens chapter of the report.)
- Quote: Portions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qa’ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists. (This information comes from the Terrorist Safe Havens chapter of the report.)
- Quote: Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa’ida and other terrorist groups to meet and train. Although Sudan’s support to al-Qa’ida has ceased and it provides some cooperation with the United States’ counterterrorism efforts, elements of core al-Qa’ida and ISIS-linked terrorist groups remain active in the country. (All contained in the State Sponsors of Terrorism chapter of the report.)
- Quote: Syria has been designated as a state sponsor of terrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not cooperate with the United States’ counterterrorism efforts. (All contained in the State Sponsors of Terrorism chapter of the report.)
- Quote: Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, al-Qa’ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen’s porous borders are used to finance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts. (Most of this information comes from the Terrorist Safe Havens chapter of the report.)
Travel from Iraq is not banned in this Executive Order like it was in the previous one. It is listed as a Terrorist Safe Haven, but the EO says that Iraq has been working closely with the U.S. and will therefore be allowed visas.
The justifications section concludes with a statement that requires some sourcing, which I’ve provided in footnotes within this section:
Quote: (h) Recent history shows that some of those who have entered the United States through our immigration system have proved to be threats to our national security. Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States.* They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees. For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses.** And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction as part of a plot to detonate a bomb at a crowded Christmas-tree-lighting ceremony in Portland, Oregon.*** The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.****
* This appears to be referring to a 2016 Justice Committee list, prepared by its then-chairman Jeff Sessions, of 580 people convicted of terrorist activities since 9/11. Of these, the committee determined that 380 were foreign-born, 39 of which were from countries named in this ban. These numbers are complicated because there’s no formal definition of the word “terrorism” or how closely a conviction has to be tied to terrorism in order to be included on these lists. The Cato Institute determined that 40 of those 580 were terrorist activities, for example, and they published an extensive report in September 2016 on the topic of terrorism convictions. The New America group has studied the demographics and other characteristics of terrorists convicted since 9/11 (in the footer of the page you can download a spreadsheet of their data). They list 181 foreign-born people convicted of terrorist activities since 9/11, but none of these came from the 6 countries that are currently banned. The Migration Policy Institute cites both of those reports in their own work.
** This appears to refer to the Bowling Green incidents. Iraq, these convicts’ country of origin, is not covered under this ban.
*** This appears to refer to Mohamed Osman Mohamud.
**** This appears not to be a published statistic. The statement also mentions suspects rather than convicts, so it would be interesting to know the ratio of suspects to convicts in this sort of crime — of all the people accused of a connection to terrorism, how many are ultimately found to have committed the crime. But I haven’t found a study on that yet. The only context we can really build for this number is in relation to the number of refugees in the country, which we can do using Refugee Processing Center data or the annual reports of the Office of Refugee Resettlement. If we count entering refugees since 2001, that would make it about 0.15% of refugees under investigation. If we go back farther, that percentage gets smaller.
Section 2: Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. [This section is currently blocked by 2 Temporary Restraining Orders]
This section says essentially four things:
- The Secretary of Homeland Security (in consultation with the Secretary of State and the Director of National Intelligence), will conduct a worldwide review to find out what information is needed from each country when making decisions about granting visas.
- Once that’s done, and everyone has agreed on which countries need which kinds of information, they’ll ask countries to start providing us with whatever information was deemed necessary for visa processing.
- While all of this is being worked out, there is a temporary travel ban: “I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) [the relevant words] and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.”
- Once these 90 days are over, there will be a new proclamation that would “prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.”
As a side note, I’m still curious how Section 1182 referenced above works with Section 1152.
8 U.S. Code § 1182 – Inadmissible aliens (enacted in 1952) reads:
(f) Suspension of entry or imposition of restrictions by President Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
8 U.S. Code § 1152 – Aliens and Nationality (enacted in 1965) reads:
(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
Update 3/16/2017: Judge Chuang (Maryland) has given an opinion on this apparent conflict in the law. He says:
At first glance, President Trump’s action appears to conflict with the bar on discrimination on the basis of nationality. However, upon consideration of the specific statutory language, the Court finds no direct conflict. Section 1182(f) authorizes the President to bar “entry” to certain classes of aliens. 8 U.S.C. § 1182(f). Section 1152(a) bars discrimination based on nationality in the “issuance of an immigrant visa.” … Accordingly, an executive order barring entry to the United States based on nationality pursuant to the President’s authority under § 1182(f) does not appear to run afoul of the provision in § 1152(a) barring discrimination in the issuance of immigrant visas. (pages 20-21 of the TRO from 3/16/2017)
Section 3: Scope and Implementation of Suspension.
Unlike last time, this EO lays out some details about which people are and are not covered by this order. Here are the relevant words:
- Quote – This order shall apply only to foreign nationals of the designated countries who:
- are outside the United States on the effective date of this order;
- did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and
- do not have a valid visa on the effective date of this order.
- Quote – This order shall 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 order;
- any foreign national who has a document other than a visa, valid on the effective date of this order 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 country designated under section 2 of this order 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.
This section also lays out 9 examples of times when a case-by-case determination may result in a waiver for certain individuals from these 6 countries, including returning to work or study, visiting a close family member in the United States, has worked for the U.S. government and can document faithful service, or is an infant, young child, or adoptee.
Section 4. Additional Inquiries Related to Nationals of Iraq.
This section boils down to “Iraqis aren’t banned, but they’ll be vetted extremely.”
Section 5. Implementing Uniform Screening and Vetting Standards for All Immigration Programs.
The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence will work together to come up with minimum vetting standards for all immigrants who want to enter the United States, ideally screening out people who try to get into the country fraudulently or who “may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States”
Section 6. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. [This section is currently blocked by the Temporary Restraining Order from Hawaii]
For 120 days after March 16th, the Secretary of State will suspend all new travel of refugees to the United States and all new decisions about applicants for refugee status in the United States.
Unlike last time, this time the ban does not apply to refugees who are already scheduled for travel to the United States (or who get their travel schedules before March 16th), and unlike last time there is room for case-by-case waivers of the ban.
During Fiscal Year 2017 the United States will accept no more than 50,000 refugees. This revises Obama’s order for FY 2017 which allowed 110,000 refugees, an unusually high number compared with previous years. Here are the orders Obama signed for 2016 (85,000), 2015 (70,000), 2014 (70,000), 2013 (70,000), 2012 (75,000), 2011 (80,000), and 2010 (80,000).
The Secretary of State will work with state and local jurisdictions to see if there are ways for local government to have more say over which refugees get settled in their jurisdictions.
Section 7. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility.
Quote: “The Secretary of State and the Secretary of Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority permitted by section 212(d)(3)(B) of the INA, 8 U.S.C. 1182(d)(3)(B) [the relevant words], relating to the terrorism grounds of inadmissibility, as well as any related implementing directives or guidance.”
The clause referenced here grants the Secretary of State and the Secretary of Homeland Security the ability to decide that someone or some group connected with terrorism may enter the country.
It looks like this authority has been used 43 times in the past to exempt people who gave aid under duress or gave medical aid or the like. The current Executive Order says to consider rescinding these actions.
Section 8. Expedited Completion of the Biometric Entry-Exit Tracking System.
This section of the Executive Order says to complete the implementation of biometric entry-exit tracking quickly.
In 1996 Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (big PDF), which required the institution of biometric entry-exit tracking for non-citizens (section 104(a), page 556). Every president since then has signed laws requiring this tracking, and last year the Congressional Committee on the Judiciary held a hearing to determine why the systems were not yet in place (chaired by current Attorney General Jeff Sessions).
Here are the laws I could find that were signed into law since 1996 and that dealt with biometric entry-exit screening:
- Omnibus Consolidated Appropriations Act, 1997 (104 H.R. 3610)
- Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (105 H.R. 4328)
- Immigration and Naturalization Service Data Management Improvement Act of 2000 (106 H.R. 4489)
- Aviation and Transportation Security Act, 2001 (107 S. 1447)
- Enhanced Border Security and Visa Entry Reform Act of 2002 (107 H.R. 3525)
- Machine-Readable Passports and Visas for Foreign Visitors Extension – 2004 (108 H.R. 4417)
- Intelligence Reform and Terrorism Prevention Act of 2004 (108 S. 2845)
- Implementing Recommendations of the 9/11 Commission Act, 2007 (110 H.R. 1)
- Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (110 H.R. 2638)
Section 9. Visa Interview Security.
Quote: The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. This suspension shall not apply to 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; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of conducting meetings or business with the United States Government.
Because there will no be no automatic waiver for all the qualified travelers from the 38 countries in the Visa Waiver Program, there will be a lot more work to do at U.S. Consulates, so the Secretary of State is also directed to expand the Consular Fellows Program so that Fellows can help with the work of vetting visa applicants.
As a side note, I was curious how an Executive Order could cancel an enacted law, but if I’m reading it correctly it turns out that the law states that it authorizes the Secretaries of State and Homeland Security to create this program, and it sets out parameters for the program, but the law does not actually create the program.
Section 10. Visa Validity Reciprocity.
Quote: “The Secretary of State shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment.”
Section 11. Transparency and Data Collection.
This section calls for the collection and publication of statistics on the number of non-citizens charged or convicted of terrorism, radicalized, gender-based violence against women, and “any other information relevant to public safety and security.”
Section 12. Enforcement.
The Secretary of State and the Secretary of Homeland Security will consult with “appropriate domestic and international partners” to make sure that the roll-out of this Order is smooth and effective.
There are 4 points of specially called out or clarified in this section:
- The Secretaries should still allow for the “credible fear” provisions covered by section 235(b)(1)(A) of the INA, 8 U.S.C. 1225(b)(1)(A) [the relevant words].
- “No immigrant or nonimmigrant visa issued before the effective date of this order [March 16th, 2017] shall be revoked pursuant to this order.”
- “Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.”
- “This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.”
Section 13. Revocation.
Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order [March 16th].
Section 14. Effective Date.
This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017.
Section 15. Severability
This section says that if any part of this executive order is found to be invalid, the rest of the order is still in effect. And if any part of the order can’t be accomplished because an agency doesn’t have procedures in place, that agency should put procedures in place.
Section 16. General Provisions
This wording goes at the end of every executive order, I think, and says that the Executive Order does not reduce any other agency’s lawful authority, it should be implemented in ways consistent with current law, and it doesn’t give rights to anyone working against the United States or any person.