On March 6, 2017, President Trump issued an Executive Order entitled: Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States (“new E.O.”). This new E.O. expressly revokes and replaces Executive Order 13769 (“E.O. 13769”), which was issued on January 27, 2017. (See our previous client alert) The new E.O., which becomes effective March 16, 2017, seeks to clarify and refine aspects of E.O. 13769 that prompted judicial challenges and ultimately led to the United States Court of Appeals for the Ninth Circuit’s unanimous decision affirming a stay of the implementation of E.O. 13769. (See our previous client alert)
As of this writing, one lawsuit has already been filed, and others are expected, challenging the constitutionality of the new E.O.
The full text of the new E.O. may be found here. Below are seven key takeaways pertaining to the new E.O. and related litigation.
1. The New E.O. Imposes a 90-day Suspension on the Entry of Nationals from Six Designated Countries (but not Iraq)
Section 2(c) of the new E.O. temporarily pauses the entry of certain nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. Specifically, those nationals will be subject to a 90-day travel suspension until the administration’s assessment of certain screening and vetting procedures is completed. The new E.O. limits the travel suspension to foreign nationals of the designated countries who: (a) are outside the United States on March 16, 2017; (b) did not have a valid visa at 5:00 p.m., eastern standard time, on January 27, 2017; and (c) do not have a valid visa on March 16, 2017. Under the new E.O., Syrian nationals are no longer suspended indefinitely, but fall within the 90-day suspension.
In contrast to E.O. 13769, the new E.O. provides the reasoning used to justify the travel suspension.
2. Iraq is No Longer a Designated Country for the Travel Suspension
Businesses that employ Iraqi nationals are afforded relief under the new E.O. because Iraq, a country designated under E.O. 13769, has been removed from the revised travel suspension. Indeed, Section 1(g) of the new E.O. indicates that Iraq presents a “special case” that justifies different treatment than the designated countries due to: (a) its “close cooperative relationship” with the United States; (b) the significant United States diplomatic and military presence in Iraq; and (c) Iraq’s commitment to combat ISIS. As further support, the new E.O. notes that since E.O. 13769 was issued, the Iraqi government has undertaken steps to comply with that Executive Order, including by enhancing travel documentation and information sharing, and returning Iraqi nationals subject to final orders of removal.
Section 1(g) of the new E.O. cautions that issuance of visas or granting admission to Iraqi nationals will be subject to additional scrutiny to determine if applicants have connections with terrorist organizations or otherwise pose a risk to national security or public safety.
3. The Travel Suspension Does Not Apply to Lawful Permanent Residents (i.e. Green Card Holders) and Valid Visa Holders
Section 3(b) of the new E.O. exempts the following individuals from the travel suspension:
- any lawful permanent resident of the United States;
- any foreign national who is admitted to or paroled into the United States on or after March 16, 2017;
- any foreign national who has a document other than a visa, valid on March 16, 2017, that permits him or her to travel to the United States and seek entry or admission;
- any dual national from a designated country when the individual is traveling on a passport issued by a non-designated country;
- any foreign national traveling on a diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or other specified visas;
- any foreign national who has been granted asylum and 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.
4. Certain Government Officials Have Authority to Grant Undue Hardship Waivers
Section 3(c) of the new E.O. provides that a consular officer or Commissioner of the U.S. Customs and Border Protection Agency may decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if:
- the officer is satisfied that such national has demonstrated that denying entry during the suspension period would cause undue hardship;
- the national’s entry would not pose a threat to national security; and
- the national’s entry would be in the national interest.
The new E.O. provides numerous examples of scenarios that might warrant the issuance of a waiver, including:
- foreign nationals who have previously established significant contacts with the United States, but are outside of the United States on March 16, 2017, for work;
- foreign nationals who seek to enter the United States for “significant business or professional obligations,” and the denial of entry would impair those obligations; and
- foreign nationals who have previously been admitted to the United States for a continuous period of work or study who seek to reenter the United States to resume that activity, and denial of entry would impair that activity.
5. The Travel Suspension in the New E.O. Does Not Apply to Individuals Who Have Immigrant and Nonimmigrant Visas Issued Before March 16, 2017
Section 12(c) of the new E.O. clarifies that individuals with immigrant or nonimmigrant visas that were issued before March 16, 2017, are not covered under the travel suspension. Moreover, any individual whose visa was marked revoked or canceled as a result of E.O. 13769 is now entitled to travel documents confirming that the individual is permitted to seek entry into the United States, and such revocation or cancellation cannot be the basis of inadmissibility for any future determination relating to entry.
6. The New E.O. Reserves the Right to Designate Additional Countries as Needed
Section 2(f) of the new E.O. grants the Secretary of Homeland Security the right to submit to the President the names of any additional countries recommended for similar treatment following future assessment of information pertaining to such countries. We anticipate that the Trump administration may amend the new E.O. in the upcoming months, particularly due to the instruction in Section 2(g) of the new E.O. that requires the Secretaries of State and Homeland Security to submit to President Trump periodic joint reports that highlight progress in implementing the new E.O.
7. The New E.O. is Already Under Judicial Review
On March 7, 2017, the day after the new E.O. was issued, the state of Hawaii filed a federal court action in Hawaii challenging the constitutionality of the new E.O. Ismail Elshikh, the Imam of the Muslim Association of Hawaii, joined the suit as a plaintiff based on the new E.O.’s alleged infliction of injury on Muslims in Hawaii, including his family and members of his Mosque.
In support of their challenge, the joint plaintiffs note that Hawaii is the nation’s most ethnically diverse state and is home to more than 250,000 foreign-born residents, more than 100,000 of whom are non-citizens. Among other things, the parties argue that the state of Hawaii has an interest in protecting the health, safety, and welfare of its residents in safeguarding the ability to enforce state law, and has an interest in assuring that the benefits of the federal system are not denied to its general population.
On March 8, 2017, U.S. District Judge Derrick K. Watson set a briefing schedule, whereby the U.S. Government will be filing its opposition brief on March 13, 2017, with oral argument to be held on March 15, 2017—prior to the March 16, 2017, effective date of the new E.O.
Four Additional States
Several other states are reacting quickly. On March 9, 2017, the attorney general of the state of Washington announced that his office will ask the U.S. District Court for the Western District of Washington to extend the temporary restraining order against enforcement of E.O. 13769 (see our previous client alert) to the new E.O. Attorneys general from the states of New York, Massachusetts, and Oregon stated that they will join the state of Washington lawsuit.
This is a matter that is evolving regularly. The Andrews Kurth Kenyon Labor & Employment team will monitor judicial review of the new E.O. and issue additional updates as warranted.