President Trump Signs Revised Executive Order Banning Travel from Six Muslim-Majority Countries and Suspending the US Refugee Program

by Joseph McKeown

On Monday, March 6, 2017, President Trump signed a revised executive order temporarily banning travel to the US for certain citizens of six-predominately Muslim countries as well as temporarily suspending the US refugee program. The executive order, “Protecting The Nation From Foreign Terrorist Entry Into The United States,” supersedes the original order issued January 27, and was revised to better withstand legal scrutiny in the courts (which his initial executive order had failed to do). According to Secretary of Homeland Security John Kelly, the order will “make America safer, and address long-overdue concerns about the security of our immigration system.” The travel ban and refugee resettlement suspension is set to go into effect on March 16, 2017.  

The new executive order bars travel for nationals from six countries—Sudan, Syria, Iran, Libya, Somalia, and Yemen—for ninety days. It no longer includes Iraqi nationals and citizens as the previous executive order did and it no longer bars Syrian refugees from resettlement in the US. It also drops a provision that would have prioritized Christian refugees for resettlement and makes it clear that the order does not apply to lawful US permanent residents, citizens, or those who currently have valid visas. The new order allows the DHS and the Department of State discretionary authority to issue visas or allow the entry of nationals of these six countries in certain situations. “This is not a Muslim ban in any way shape or form," a senior Department of Homeland Security official tells Time Magazine. "This is a temporary suspension of nationals from six countries that are either failed states at this point or state sponsors of terror." In the first twenty days of the order, DHS will perform a global, country-by-country review of the information that each country provides to the US government to support US visa and other immigration benefit determinations. Countries will then have fifty days to comply with governmental requests to update or improve the quality of the information they provide.

Under this order, the Refugee Admissions Program will be temporarily suspended for 120 days while DHS and interagency partners review screening procedures. When the program is resumed, refugee admissions are capped at 50,000, less than the 110,000 the Obama administration planned to admit this year. Additionally, the order also calls for the DHS and other government agencies to develop uniform screening standards for all immigration programs government-wide, for DHS to expedite the completion and implementation of a biometric entry-exit system for all in-scope travelers upon entry and exit from the US, and for the State Department to review all nonimmigrant visa reciprocity agreements. The order also calls for the State Department to “restrict” the Visa Interview Waiver Program and for additional nonimmigrant visa applicants to undergo an in-person interview.

In response to the new order, Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, says the Trump administration has replaced the initial executive order with a scaled back version that contains the same “fatal flaws.” He says:

The only way to actually fix the Muslim ban is not to have a Muslim ban. Instead, President Trump has recommitted himself to religious discrimination, and he can expect continued disapproval from both the courts and the people. What's more, the changes the Trump administration has made, and everything we've learned since the original ban rolled out, completely undermine the bogus national security justifications the president has tried to hide behind and only strengthen the case against his unconstitutional executive orders.

The Department of Homeland Security has published questions and answers about the new order, including information for students and nationals of the six countries who are planning on traveling. The new order already appears set to face legal challenges in courts, and we will continue to update this post as the challenges work their way through the court system.
UPDATE MARCH 15, 2017: US District Court Judge Derrick Watson, a federal judge in Hawaii, has issued a temporary restraining order barring the administration's executive order from taking effect Thursday, March 16. The temporary restraining order, which applies nationwide, specifically blocks the Trump administration from enforcing sections 2 and 6 of the new executive order—these sections refer to the travel and refugee portions of the order. “Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims,” the judge writes. We will continue to provide updates as the case makes its way through the courts.

UPDATE MARCH 30, 2017:  US District Court Judge Derrick Watson has indefinitely blocked President Trump’s travel ban, unless a higher court changes the judge’s order or the state's lawsuit is otherwise resolved. In his decision, Judge Watson again referenced Trump's statements about Muslims during the presidential campaign to question the constitutionality of the executive order. "The court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has," Watson writes.

The Justice Department will continue to defend President Trump’s order. "The Justice Department strongly disagrees with the federal district court's ruling,” a department spokesperson says in an issued statement. “The President's executive order fails squarely within his lawful authority in seeking to protect our nation's security, and the department will continue to defend this executive order in the courts."

UPDATE MAY 25, 2017: A federal appeals court in Richmond, Virginia today upheld an injunction against President Trump's revised travel ban issued in March. The US Court of Appeals for the Fourth Circuit ruled that the ban discriminated on the basis of religion, and their ruling upholds a lower court's decision to indefinitely halt key portions of the executive order. The case is expected to go to the Supreme Court.

UPDATE JUNE 6, 2017: Last week the Trump administration continued to fight the injunction on the travel ban, requesting that the Supreme Court justices quickly reverse the decision by the Fourth Circuit appeals court. The Justice Department asked that the justices consider the Trump administration's application faster than normal, before the Supreme Court’s three-month summer recess starting at the end of June. Five of the nine justices would have to grant this request to lift the stay immediately, which would be without public oral arguments. Additionally, the government also filed an appeal, a slower path through the Supreme Court, with oral arguments that would likely be scheduled for the beginning of the next term in October. Justice Department spokeswoman Sarah Isgur Flores says in a statement:  “We have asked the Supreme Court to hear this important case and are confident that President Trump’s executive order is well within his lawful authority to keep the Nation safe and protect our communities from terrorism."

JUNE 16, 2017: A second federal appeals court has ruled against President Trump’s revised travel ban, another defeat for the Trump administration. This decision from the US Court of Appeals for the Ninth Circuit, in San Francisco, comes after the similar decision by the US Court of Appeals for the Fourth Circuit. While the Fourth Circuit said the revised executive order violates the First Amendment’s prohibition of government establishment of religion, the Ninth Circuit made its conclusions on statutory grounds, stating that President Trump had exceeded the authority Congress granted him in making national security judgments in regards to immigration. “The order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the Ninth Circuit’s opinion says. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.” The ruling affirmed most of the March decision by Judge Derrick K. Watson, of the Federal District Court in Hawaii, except for a key part that prevented the administration from performing internal reviews of its vetting procedures while the case moved forward.

This point could have proved key, since in briefs filed earlier this week in the Supreme Court, lawyers challenging the revised executive order “urged the court not to hear the Trump administration’s appeal of the Fourth Circuit’s decision or to stay the injunctions entered in the two cases,” arguing that the cases might be moot as soon as Wednesday; however, President revised the executive order to address this issue. Apart from timing issue, the Ninth Circuit opinion concludes that “the order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.”

UPDATE JUNE 27, 2017:  The Supreme Court announced yesterday that it would hear arguments on whether President Trump’s revised travel ban was lawful, and, in a partial win for the Trump administration, partially reinstated the revised executive order by lifting significant elements of the lower court orders blocking the ban. In their decision, the justices note that the lower court injunctions preventing enforcement of the revised executive order would be stayed with respect to "foreign nationals who lack any bona fide relationship with a person or entity in the United States.” In effect, this means that foreign nationals from the six countries in the revised ban with ties or relationships to the US should not be prevented from entering the country, but visa applicants from the six countries who do not have family, business, or other ties could be prevented from traveling to the US. 

Justice Clarence Thomas, along with Justices Samuel A. Alito, Jr. and Neil M. Gorsuch, dissented from this part of the court’s opinion, saying that they would have restored the travel ban in its entirety while the court considered the case. Justice Thomas writes that he fears “the court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding—on peril of contempt—whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country.”

In an official White House statement, President Trump says the court’s decision was “a clear victory for our national security.” In a statement, the Department of Homeland Security says: “The Department will provide additional details on implementation after consultation with the Departments of Justice and State. The implementation of the Executive Order will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”

Others are not so sure of an orderly rollout, remembering the chaos that surrounded the initial travel ban. Stephen Yale-Loehr, a professor of immigration law at Cornell University, says that the wording of the decision is open to interpretation. “How individuals will prove such a [bona fide] relationship, and whether the burden of proof will be on the government or the individuals seeking entry, remains to be seen,” he tells the Guardian. “I predict chaos at the border and new lawsuits as foreign nationals and refugees argue that they are entitled to enter the United States.” Margaret Huang, executive director of Amnesty International USA, agrees: “Rather than keeping anyone safe, this ban demonizes millions of innocent people and creates anxiety and instability for people who want to visit a relative, work, study, return to the country they call home, or just travel without fear.”

Because of the time limits inherent in the revised executive order, the court notes that the administration could complete its internal reviews over the summer, which means the case could be moot by the time it is argued in the fall.