Throughout the late spring and early summer, I detailed the various twists and turns in the president's efforts to improve the vetting process for foreign nationals seeking to enter the United States, first through Executive Order 13769 (EO-1), which was captioned "Protecting the Nation from Foreign Terrorist Entry into the United States", and then through Executive Order 13780, also captioned "Protecting The Nation From Foreign Terrorist Entry Into The United States" (EO-2).
On Sunday, September 24, 2017, this process entered its latest phase, as the White House issued a "Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats". That proclamation placed tailored restrictions on the entry by nationals of eight countries (Chad, Iran, Libya, North Korea, Syria, Somalia, Venezuela, and Yemen) into the United States.
By way of explanation, section 2(a) of EO-2 directed:
The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence [(DNI) to] conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.
Pursuant to section 2(b) of EO-2, after that review was completed, the Secretary of Homeland Security, Secretary of State, and DNI were directed to:
[S]ubmit to the President a report on the results of the worldwide review described in subsection (a), including the Secretary of Homeland Security's determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of [EO-2].
For reasons that have never been clear, a district court judge in Hawaii enjoined the implementation of these provisions. In its June 12, 2017, per curiam order reviewing that court's injunction, the Ninth Circuit held that the district court had abused its discretion in enjoining these provisions, and "vacate[d] the preliminary injunction to the extent it enjoins internal review procedures that do not burden individuals outside of the executive branch of the federal government."
That review subsequently occurred, culminating in the September 24, 2017, proclamation. As that proclamation stated:
As part of the review, the Secretary of Homeland Security established global requirements for information sharing in support of immigration screening and vetting. The Secretary of Homeland Security developed a comprehensive set of criteria and applied it to the information-sharing practices, policies, and capabilities of foreign governments. The Secretary of State thereafter engaged with the countries reviewed in an effort to address deficiencies and achieve improvements. In many instances, those efforts produced positive results. By obtaining additional information and formal commitments from foreign governments, the United States Government has improved its capacity and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat.
More specifically, that proclamation explained:
In that review, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, developed a baseline for the kinds of information required from foreign governments to support the United States Government's ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public-safety threat. That baseline incorporates three categories of criteria:
(i) Identity-management information. The United States expects foreign governments to provide the information needed to determine whether individuals seeking benefits under the immigration laws are who they claim to be. The identity-management information category focuses on the integrity of documents required for travel to the United States. The criteria assessed in this category include whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports.
(ii) National security and public-safety information. The United States expects foreign governments to provide information about whether persons who seek entry to this country pose national security or public-safety risks. The criteria assessed in this category include whether the country makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, whether the country provides passport and national-identity document exemplars, and whether the country impedes the United States Government's receipt of information about passengers and crew traveling to the United States.
(iii) National security and public-safety risk assessment. The national security and public-safety risk assessment category focuses on national security risk indicators. The criteria assessed in this category include whether the country is a known or potential terrorist safe haven, whether it is a participant in the Visa Waiver Program established under section 217 of the INA, 8 U.S.C. 1187, that meets all of its requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States. (Emphasis added).
With respect to the national security and public-safety risk assessment, it is interesting to note that the issue of whether a country is "recalcitrant" was a factor. This is an issue that Congress has focused on for some time now, and that the administration has recently taken other steps to address. As the White House explained:
Sharing of this information [criminal data, reporting lost/stolen passports, and providing data on known and suspected terrorists] is particularly critical for those areas of the world where risk is higher, such as those countries with significant terrorist populations that may seek to conduct attacks in the U.S. and who repeatedly fail to take back their nationals subject to a final order of removal thereby taxing our immigration system.
This demonstrates an extremely sophisticated analysis of the full ramifications of the admissions process, particularly from "countries of concern", where terrorist groups operate, sometimes with the tacit approval of the government or certain government officials.
As a result of this review, the Acting Secretary of Homeland Security determined that Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen "continue to have 'inadequate' identity-management protocols, information-sharing practices, and risk factors". While the Acting DHS Secretary also determined "that Iraq did not meet the baseline," she concluded "that entry restrictions and limitations under a Presidential proclamation are not warranted." Instead, she recommended "that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States."
Having considered these findings and recommendations, the administration decided to restrict and/or limit entry by nationals of the remaining seven countries into the United States.
In addition, with respect to Somalia, the proclamation noted:
Section 2(e) of Executive Order 13780 also provided that the "Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States." The Secretary of Homeland Security determined that Somalia generally satisfies the information-sharing requirements of the baseline described [therein], but its government's inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory, present special circumstances that warrant restrictions and limitations on the entry of its nationals into the United States. Somalia's identity-management deficiencies and the significant terrorist presence within its territory make it a source of particular risks to the national security and public safety of the United States.
Accordingly, in section 2 of the proclamation, the administration ordered that the entry into the United States of nationals of the seven listed countries and Somalia be suspended and limited as follows:
The entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended.
The entry into the United States of nationals of Iran as immigrants and as nonimmigrants be suspended, except that entry by such nationals under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals should be subject to enhanced screening and vetting requirements.
The entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended.
The entry into the United States of nationals of North Korea as immigrants and nonimmigrants be suspended.
The entry into the United States of nationals of Syria as immigrants and nonimmigrants be suspended.
The entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures -- including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations -- and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended. It also ordered that nationals of Venezuela who are visa holders should be subject to appropriate additional measures to ensure traveler information remains current.
The entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended.
The entry into the United States of nationals of Somalia as immigrants be suspended. In addition, it ordered that visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.
Section 3 of the proclamation both establishes the "scope" of these suspensions and limitations, and contains "exceptions" thereto. The suspension of and limitations to entry for foreign nationals of designated countries are limited in scope to those nationals who are outside the United States on the applicable effective date (detailed below), do not have a valid visa on that date, and do not qualify for a visa or other valid travel document as set forth therein.
The "Exceptions" provision further restricts the classes of foreign nationals whose entry is suspended and limited by exempting:
(i) any lawful permanent resident of the United States;
(ii) any foreign national who is admitted to or paroled into the United States on or after the applicable effective date ... ;
(iii) any foreign national who has a document other than a visa -- such as a transportation letter, an appropriate boarding foil, or an advance parole document -- valid on the applicable effective date ... of this proclamation or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission;
(iv) any dual national of a country designated ... when the individual is traveling on a passport issued by a non-designated country;
(v) 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
(vi) any foreign national who has been granted asylum by the United States; 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.
Section 3 also provides case-by-case waivers for foreign nationals whose entry would otherwise be suspended and limited.
Section 7 of the proclamation contains the effective dates for these suspensions and limitations. Specifically, these suspensions and limitations went into effect on the date of the issuance of the proclamation for nationals of the countries that were listed in section 2(c) of EO-2 who: "(i) were subject to entry restrictions under section 2 of [EO-2], or would have been subject to the restrictions but for section 3 of that Executive Order, and (ii) lack a credible claim of a bona fide relationship with a person or entity in the United States." The reference to aliens who "would have been subject to ... the entry restrictions under section 2" of EO-2 "but for section 3 of" EO-2 is somewhat confusing, because the exceptions in section 3 of EO-2 are substantially the same as the "exceptions" provisions in section 3 of the proclamation, described above. The only category of aliens who would be referenced by section 7 of the proclamation who were not included in EO-2 would appear to be aliens who were admitted or paroled into the United States on or after the effective date of EO-2 who subsequently left, and foreign nationals who had visas that permitted entry to the United States on the effective date of EO-2, whose visas have subsequently expired.
For nationals of "Iran, Libya, Syria, Yemen, and Somalia [the remaining countries listed in section 2(c) of EO-2] who have a credible claim of a bona fide relationship with a person or entity in the United States, and [nationals of] Chad, North Korea, and Venezuela," the restrictions and limitations in section 2 of the proclamation are effective as of October 18, 2017.
Given this, the administration has ostensibly concluded that even aliens who have bona fide relationships with persons and entities in the United States, groups who were carved-out from application of sections 2(c), 6(a), and 6(b) of EO-2 in the Supreme Court's order, can be subject to the restrictions and limitations in the proclamation. This appears to reflect the administration's confidence that it will prevail in the EO-2 case currently pending in the Supreme Court, and/or that the infirmities identified with respect to that order by the Fourth and Ninth Circuits, respectively, will not apply to the proclamation.
It should also be noted that the circumstances in which a waiver from these restrictions and limitations may be granted to an affected foreign national seeking entry into the United States include a situation where:
[T]he foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship.
Also included is a situation where: "the foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date ... for work, study, or other lawful activity."
Not surprisingly, the Supreme Court has cancelled its scheduled October 10, 2017, oral argument on EO-2, and has "asked lawyers in the case involving the previous ban to submit briefs by October 5, 2017, addressing 'whether, or to what extent, the proclamation' may render the case moot." The Court also:
[A]sked for briefings on a question not addressed in the proclamation, concerning the earlier ban's suspension of the nation's refugee program. That suspension is scheduled to expire next month. On that question, too, the [C]ourt asked the parties to explain whether the issue would soon be moot.
Finally, as the White House noted in its press release on the proclamation:
The restrictions being imposed on these eight countries are conditional and may be lifted as they work with the United States Government to ensure the safety of Americans. We look forward to all countries meeting the new requirements for cooperation with the United States as we continue to take steps necessary to protect our national security.
I anticipate that, the ongoing Supreme Court proceedings notwithstanding, there will be a new round of litigation in the federal district courts challenging this proclamation. As the New York Times reported:
Like his first travel bans, the president's latest restriction mostly targets predominantly Muslim countries. But officials note that two non-Muslim countries — North Korea and Venezuela — are on the list this time. They say that should be proof that the latest ban was not designed to target one religion.
Critics are not convinced. They continue to point to Mr. Trump's history of calling for a ban on Muslim entry into the United States. And they insist that the addition of two non-Muslim countries does little to alter the original intent of the restrictions: to keep Muslims from certain countries out of the United States.
"President Trump's original sin of targeting Muslims cannot be cured by throwing other countries onto his enemies list," Anthony D. Romero, the executive director of the American Civil Liberties Union, said.
The proclamation appears to be a well reasoned, thoughtful, and narrowly tailored policy prescription intended to protect the national security of the United States. That said, lower federal courts have shown little compunction to insert themselves in national security matters to which they would have deferred to the political branches in the past when those matters involve decisions made by President Trump. Stay tuned for more litigation to come.