On January 27, 2017, President Trump issued an Executive Order (EO), titled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Among other provisions, the EO suspends immigrant and nonimmigrant entry for nationals from seven predominantly Muslim countries, for a minimum of 90 days, and establishes requirements for “extreme vetting.”
Following the issuance of the EO, U.S. embassies and consular posts were instructed to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. In addition, U.S. Customs and Border Patrol agents have been detaining those individuals from affected countries who were already issued valid visas and in transit to the United States before the EO was signed.
The Courts React to the EO
Reaction within the court system has been swift, including the following:
- On January 28, 2017, a judge in the U.S. District Court for the Eastern District of New York granted an emergency stay in a lawsuit challenging the EO. This order granted a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO.
- On January 29, 2017, a federal court in Massachusetts issued a Temporary Restraining Order (TRO) that went further than the stay issued in New York. This TRO barred federal officials from detaining or removing individuals subject to the EO.
- In a case filed in Virginia, the court ordered federal officials to “permit lawyers to meet with individuals currently detained at Dulles airport” and barred officials from deporting individuals from the United States.
- In a case in Washington state, a federal judge barred the federal government from deporting two individuals from the United States.
- Former Acting U.S. Attorney General Sally Yates called the legality of the EO into question and instructed U.S. Department of Justice officials to avoid defending the EO in court until further notice.
Response by the Trump Administration
On January 29, 2017, the U.S. Department of Homeland Security (DHS) issued several press statements in response to the EO:
- The first statement was in response to the recent litigation regarding the EO. The DHS stated it would continue to enforce the EO, which will remain in place. It also stated that the DHS “will comply with judicial orders …”
- The second statement confirmed the entry of lawful permanent residents into the United States, as Secretary Kelly of the DHS stated, “I hereby deem the entry of lawful permanent residents [green card holders] to be in the national interest.”
- The final press statement reiterated that the DHS would remain in compliance with judicial orders, and that absent “significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”
On January 30, 2017, President Trump removed Acting U.S. Attorney General Sally Yates from her position and named Dana Boente (U.S. Attorney for the Eastern District of Virginia) to serve in her stead. A White House press release describes Yates’s refusal enforce the EO as a “betrayal” of the U.S. Department of Justice.
What the EO Means for Nationals of Iraq, Iran, Syria, Sudan, Libya, Somalia, and Yemen
Individuals who are citizens or dual citizens holding visas, or those who are lawful permanent residents (green card holders) from Iraq, Iran, Syria, Sudan, Libya, Somalia, or Yemen, should not leave the United States unless there is an emergency that requires immediate attention. Anyone who holds a passport from a designated country is considered as being “from” the designated country. This includes dual citizens who hold passports from a designated country, as well as a non-designated country. The EO does not apply to people who merely traveled to or through the designated countries.
This is a constantly evolving and a fluid situation. After the EO had been released, an official from the U.S. Department of State explained that someone who holds dual citizenship from one of the seven banned countries would be barred from entering the United States. Specifically, the official said, “Travelers who have nationality or dual nationality of one of these countries will not be permitted for 90 days to enter the United States or be issued an immigrant or non-immigrant visa, [and] those nationals or dual nationals holding valid immigrant or non-immigrant visas will not be permitted to enter the United States during this period.”
This guidance would mean that an Iranian national who also holds a German passport would be barred from entering the United States. It was clarified further that the EO would not be applicable to dual-national Americans, meaning a U.S. citizen who also holds citizenship from one of the seven banned countries would be allowed into the United States. And then the guidance changed once more, indicating that dual nationals who hold a passport from an approved country will be permitted to enter the United States upon arrival, provided that they meet all criteria based upon their nationality.
What the EO Means for Green Card Holders
Upon returning to the United States, legal permanent residents (LPRs) should not automatically surrender their green card if asked to do so. An individual does not lose LPR status as a result of time abroad. They remain an LPR until a final order of removal is issued, which requires the government meet the high standard of proving abandonment by clear, unequivocal, and convincing evidence. If abandonment is raised by a customs officer, an LPR should offer evidence of the following:
- their ties to the United States,
- the purpose of their visit outside of the United States, and
- the expected termination date of the visit abroad or occurrence of facts showing why a date certain is or was not possible.
To prove abandonment, a preponderance of the evidence standard is applied, meaning it is more likely than not (more than 51 percent) that the LPR did not abandon, taking into consideration the totality of the circumstances. If a customs officer is not convinced, the LPR holder should ask for a hearing before an immigration judge. If the LPR holder’s green card is confiscated, he or she must be provided with alternative evidence of his or her LPR status, such as an I-94 and/or passport stamp that says “Evidence of Temporary Residence.”
Abandonment of residence is not grounds for inadmissibility. If an LPR’s visit abroad was not in fact “a temporary absence” he or she is not admissible as a “special immigrant.” In this situation, the government bears the high burden of proving abandonment of LPR status by clear, unequivocal, and convincing evidence. An LPR who is placed in removal proceedings does not lose his or her status until a final order of removal is issued.
Because we anticipate this to be a turbulent year in immigration with the new Trump administration, we recommend to our clients that they bring all visa holders back to the United States if at all possible. This is going to be a rocky year, and we expect it to continue for the full four years of this administration. At a minimum, there will be more scrutiny at the border for returning visa holders, additional vetting, and more secondary inspections.