Supreme Court Stays Court’s Mandate Preventing Exclusion of Refugees Under Trump Travel Ban

September 14th, 2017

The Supreme Court issued an order staying the Ninth Circuit’s mandate with respect to refugees covered by a formal assurance. (Trump v. Hawaii, 9/12/17). On September 7, 2017, the Ninth Circuit Court of Appeals affirmed the district court’s July 13, 2017, order modifying its preliminary injunction against Sections 2 and 6 of Executive Order 13780 to prevent the government from applying the executive order to exclude:
• Grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and
• Refugees who have a formal assurance from a resettlement agency in the United States or who are part of the Lautenberg Program.

Federal Court Strikes Down Part of Travel Ban

July 17th, 2017

The U.S. District Court for the District of Hawaii modified its preliminary injunction to prevent the government from enforcing the travel ban, Executive Order 13780, against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. It held that the government’s narrow interpretation of “close familial relationship” was unconstitutional.

The modifications also exclude from the Executive Order refugees who have a formal assurance from a resettlement agency in the United States or who are part of the Lautenberg Program.

Travel Ban Close Family Member Includes Fiance

June 30th, 2017

The government has just expanded the list of qualifying “close family members” for an exception to the travel ban to include a fiancé. The DOS released a cable yesterday implementing Trump’s executive order travel ban, which included spouses but not fiancés. The state of Hawaii may be litigating the government’s position, since a close family member does not include a grandparent, grandchild, cousin or niece or nephew.

DOS Issues Cable Implementing Trump’s Travel Ban

June 29th, 2017

The US Department of State just issued its cable implementing Trump’s travel ban for foreign nationals from six Muslim-majority countries, which can be found at http://live.reuters.com/Event/Live_US_Politics/989297085.

The executive order (E.O.) ban will take effect at 8 pm tonight and will suspend the entry of, or visa issuance to, certain aliens of Iran, Libya, Somalia, Sudan, Syria and Yemen. The cable outlines the exceptions for those who have a bona fide relationship with a person or entity in the US and for another discretionary waiver based on a case-by-case basis.

The suspension of entry into the US will not apply to individuals who are inside the United States on June 29, 2017, who have a valid visa on June 29, 2017, or who had a valid visa at 8:00 p.m. EDT January 29, 2017, even after their visas expire or they leave the United States. The suspension of entry also does not apply to other categories of individuals, as detailed in the cable. No visas will be revoked based on travel ban. New applicants will be reviewed on a case-by-case basis, with consular officers taking into account the scope and
exemption provisions and the applicant’s qualification for a discretionary waiver.

Regarding the exemption of the ban for those with a bona fide relationship to a person or entity in the US, the cable states the following in item #10:

a.) Any applicant who has a credible claim of a bona fide relationship with a
person or entity in the United States. Any such relationship with a
“person” must be a close familial relationship, as defined below. Any
relationship with an entity must be formal, documented, and formed in the ordinary
course, rather than for the purpose of evading the E.O. Note: If
you determine an applicant has established eligibility for a nonimmigrant visa
in a classification other than a B, C-1, D, I, or K visa, then the applicant is
exempt from the E.O., as their bona fide relationship to a person or entity is
inherent in the visa classification. Eligible derivatives of these
classifications are also exempt. Likewise, if you determine an applicant
has established eligibility for an immigrant visa in the following classifications
— immediate relatives, family-based, and employment-based (other than certain
self-petitioning employment-based first preference applicants with no job offer
in the United States and SIV applicants under INA 101a(27)) — then the
applicant and any eligible derivatives are exempt from the E.O.

b.) Any applicant who was in the United States on June 26, 2017;

c.) Any applicant who had a valid visa at 5:00 p.m. EST on January 27, 2017, the day
E.O. 13769 was signed;

d.) Any applicant who had a valid visa on June 29, 2017;

e.) Any lawful permanent resident of the United States;

f.) Any applicant who is admitted to or paroled into the United States on or
after June 26, 2017;

g.) Any applicant who has a document other than a visa, valid on June 29, 2017, or issued
on any date thereafter, that permits him or her to travel to the United States
and seek entry or admission, such as advance parole;

h.) Any dual national of a country designated under the order when traveling on
a passport issued by a non-designated country;

i.) Any applicant travelling on an A-1, A-2, NATO-1 through NATO-6 visa, C-2
for travel to the United Nations, C-3, G-1, G-2, G-3, or G-4 visa, or a
diplomatic-type visa of any classification;

j.) Any applicant 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; and

k.) Any V92 or V93 applicant.

The cable defines “Close family” in item #11:

11. (SBU) “Close family” is defined as a parent (including
parent-in-law), spouse, child, adult son or daughter, son-in-law,
daughter-in-law, sibling, whether whole or half. This includes step
relationships. “Close family” does not include grandparents,
grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and
sisters-in-law, fiancés, and any other “extended” family members.

Under item #14, the cable also lays out case-by-case basis when the applicant
demonstrates to the officer’s satisfaction that the following three criteria
are all met:

a.) Denying entry during the 90-day suspension would cause undue hardship;

b.) His or her entry would not pose a threat to national security; and

c.) His or her entry would be in the national interest.

It item #15, the DOS cable lists the following examples of circumstances in which
an applicant may be considered for a waiver, subject to meeting the three
requirements above. It instructs consular officers to first determine whether individuals are exempt from the executive order under standards described above, before considering the
availability of a waiver under the standards described in item #15. It then states:

Unless the adjudicating consular officer has particular concerns about a case
that causes the officer to believe that that issuance may not be in the
national interest, a determination that a case falls under any circumstance
listed in this paragraph is a sufficient basis for concluding a waiver is in
the national interest. Determining that a case falls under some of these
circumstances may also be a sufficient basis for concluding that denying entry
during the 90-day suspension would cause undue hardship:

a.) The applicant has previously established significant contacts with the
United States but is outside the United States on the effective date of the
E.O. for work, study, or other lawful activity;

b.) The applicant seeks to enter the United States for significant business or
professional obligations and the denial of entry during the suspension period
would impair those obligations;

c.) The applicant is an infant, a young child, or adoptee, an individual
needing urgent medical care, or someone whose entry is otherwise justified by
the special circumstances of the case;

d.) The applicant is traveling for purposes related to an international
organization designated under the International Organizations Immunities Act,
traveling for purposes of conducting meetings or business with the United
States government, or traveling to conduct business on behalf of an
international organization not designated under the IOIA; or

e.) The applicant is a permanent resident of Canada who applies for a visa at a
location within Canada.

The US Constitution, Trump Travel Ban and Withholding of Funds to Sanctuary Cities

June 5th, 2017

Very few other areas of law have recently implicated the US Constitution as extensively as does US immigration law. Especially with this new administration and actions and attitudes it is inciting nationwide (and worldwide), there seems to be no end to litigation. Let’s first take Trump’s travel ban, which was recently struck down by the Fourth Circuit and which the Trump administration has asked the US Supreme Court to review. This ban barred the issuance of nonimmigrant foreign nationals from the six Muslim-majority countries Iran, Somalia, Sudan, Syria, Yemen and Libya for 90 days along with a 120-day freeze on Syrian refugee admission. The ACLU argued that it violated the First Amendment’s establishment clause that our government cannot denigrate or favor a particular religion, which the government argued that it did not target any religion but was merely reviewing security in countries noted as having high rates of terrorism. The Fourth Circuit struck down the ban as demonstrating unconstitutional animus towards Muslims.

The second recent action is Texas’ new law allowing police officers to decide how to question individuals about their immigration status and threatening law enforcement authorities with fines and jail time if they do not comply with federal requests. The city of San Antonio and three nonprofits are seeking to block this law arguing that it is unconstitutional racial profiling and erodes public safety by forcing victims into the shadows. The state argues that the new Texas law does not violate the 4th Amendment right to protection against unreasonable searches and seizures or the 14th Amendment right to equal protection and is not preempted by federal law.

The third recent activity is the set of suits by sanctuary cities denouncing the Trump administration’s withdrawing funds to them as unconstitutional. These sanctuary cities, which limit cooperation between the federal government and local law enforcement agencies, argue that it violates states’ rights under preemption and makes people less safe, since they will fear deportation upon reporting crimes. Immigration policy is considered the purview of the federal government and federal law preempts state law, but courts have set limits on what the federal government can require of the statues. There is case law that suggests that the federal government can only deprive funds to states when such funding is reasonable related to that particular policy. US District Judge Orrick in San Francisco agreed with this line of cases holding that “Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration strategy of which the president disapproves.”

Will Trump’s Recent Conciliatory Speech on Islam Affect Travel Ban Decision?

May 22nd, 2017

This weekend, Trump gave a speech in Saudi Arabia on unifying the world against radical Islamist terrorism and was quite conciliatory and laudatory toward Muslims and Islam. While such an attitude is highly welcomed, it should be noted that it was full of platitudes and facts that should have been made clear during his campaign, such as the many achievements, including cultural and scientific, in the long history of Islam, and the fact that radicalism does not define being Muslim.

It will be interesting to see how his new stance and more positive statements affect the travel ban decision before the appeals courts in the Fourth and Ninth Circuits. The plaintiffs have made the argument that the court should look behind the “facially neutral” statute to statements made by Trump in determining whether there was unconstitutional animus in devising these bans. Does the fact that he made such a speech after the issuance of the travel ban make a difference?

The final burning question is whether Trump will revoke the bans or decide to forgo an appeal to the US Supreme Court of any decisions invaliding the bans. If he is true to his words about most Muslims being law-abiding, then he must do one or the other.