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EXECUTIVE ORDER BANNING TRAVEL FOR NATIONALS OF SIX MAJORITY-MUSLIM COUNTRIES HALTED

On March 15, 2017, the U.S. District Court for the District of Hawaii issued a worldwide temporary restraining order stopping the government from implementing the 90-day travel ban on entry into the U.S. by immigrants and nonimmigrants from six predominantly Muslim countries (Iran, Libya, Somalia, Sudan, Syria and Yemen), and the 120-day ban on the U.S. refugee program of President Trump’s Executive Order issued on March 6, 2017 (see discussion below).

In addition, on March 16, 2017, the U.S. District Court of the District of Maryland joined the District of Hawaii.

With the ruling of these two judges – others may follow – travelers from these six Muslim-majority countries and refugees will still be able to travel to the United States.

The Department of State has advised that U.S. Embassies and Consulates will continue to process visas for nationals of the six countries as before.

Interpretation and implementation of this Executive Order is constantly changing, not only based on the outcome of various litigation across the country, but also as the result of clarification provided by the various agencies involved.

We will continue to track any and all new developments regarding President Trump’s Executive Orders on immigration and we will make every effort to provide you with the most up-to-date general information.

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PRESIDENT TRUMP’S EXECUTIVE ORDER BANNING TRAVEL FOR NATIONALS OF SIX MAJORITY-MUSLIM COUNTRIES

On March 6, 2017, President Trump issued a new Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” effective March 16, 2017, which revoked the January 27, 2017 Order (see previous blog).

Beginning March 16, 2016, the new Order prohibits entry into the U.S. by immigrants and nonimmigrants from six predominantly Muslim countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – for at least 90 days.  Some exceptions and case-by-case waivers could be applied to nationals of these 6 countries, provided that the foreign national is able to demonstrate that his or her entry into the U.S. is in the national interest, will not pose a threat to national security, and that denying entry during the suspension period will cause undue hardship.  This Order applies to foreign nationals of these 6 countries who are outside of the U.S. on March 16, 2017, did not have a valid visa on January 27, 2017 AND do not have a valid visa on March 16, 2017.

The Order does not apply to lawful permanent residents, foreign nationals admitted or paroled in the U.S. on/after March 16, 2017, foreign nationals who travel on admission documents to the U.S., other than a visa which are valid on/after March 16, 2017, dual nationals traveling on a passport from a country that is not one of six designated countries, foreign nationals traveling on diplomatic or diplomatic-type visas, foreign nationals granted asylum, any refugee already admitted to the U.S., or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture.

In addition, after March 16, 2017, the new Order suspends refugee resettlement to the U.S. for 120 days and reduces the number of refuges that will be resettled in fiscal year 2017 to 50,000.

The Order also requires in-person interviews for more nonimmigrant visa applicants.

The Order confirms that the no visa issued before March 16, 2017 will be revoked.

Interpretation and implementation of this Executive Order is constantly changing, not only based on the outcome of various litigation across the country, but also as the result of clarification provided by the various agencies involved.

We will continue to track any and all new developments regarding President Trump’s Executive Orders on immigration and we will make every effort to provide you with the most up-to-date general information.

 

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THE LATEST ON IMMIGRATION ENFORCEMENT NATIONWIDE

On February 20, 2017, Department of Homeland Security (DHS) Secretary John Kelly signed two memoranda implementing President Trump’s Executive Orders on immigration enforcement, both at the border and within the United States, thus drastically increasing immigration enforcement nationwide.

Please note that the Memorandum dealing with interior enforcement specifically states that the June 15, 2012 DACA memorandum and the November 20, 2014 DACA+/DAPA memorandum are not rescinded.

Below, is a summary of the portions of each Memoranda having the most severe impact on foreign nationals.

INTERIOR ENFORCEMENT

The Memorandum implementing the Executive Order entitled “Enforcement of the Immigration Laws to Serve the National Interest,” states that the DHS will execute the immigration laws against all removable individuals and will no longer “exempt classes or categories of removable” individuals from enforcement.  In other words – all removable individuals are a priority and subject to deportation.

The Memorandum lists individuals described in:

  • INA § 212(a)(2) – criminal and related inadmissibility grounds;
  • INA § 212(a)(3) – security and related inadmissibility grounds;
  • INA § 212(a)(6)(C) – fraud, misrepresentation inadmissibility grounds;
  • INA § 235(b) – expedited removal of inadmissible “arriving aliens” and other noncitizens apprehended in the interior;
  • INA § 235(c) – expedited removal based on security and related grounds;
  • INA § 237(a)(2) – criminal grounds of removal;
  • INA § 237(a)(4) – security and related grounds of removal
  • Removable aliens who:
    • Have been convicted of any criminal offense;
    • Have been charged with any criminal offense that has not been resolved;
    • Have committed acts that constitute a chargeable criminal offense (includes minor infractions such as jaywalking or driving without a license, and may be applied to undocumented individuals for having committed the chargeable offense of improper entry);
    • Have engaged in fraud or willful misrepresentation in connection with any official matter before a government agency;
    • Have abused any program related to receipt of public benefits (according to the DHS’ FAQ’s, – abuse of a public benefit program includes “those who have knowingly defrauded the government or a public benefit system…”);
    • Are subject to a final order of removal, but have not departed; or
    • Otherwise pose a risk to public safety or national security.

The Memorandum also directs DHS to use their authority to remove individuals expeditiously, through the use of fast-track removal mechanisms for criminals.  Prosecutorial discretion should only be used on a case-by-case basis and that DHS’ should initiate deportation proceedings as opposed to using prosecutorial discretion.  DHS will no longer afford Privacy Act rights and protections to individuals who are not U.S. citizens nor lawful permanent residents.

BORDER ENFORCEMENT

The Memorandum implementing the Executive Order entitled “Border Security and Immigration Enforcement Improvements,” expands the detention of nearly everyone who is apprehended by immigration authorities, including those with no criminal convictions, and expands the expedited removal process which will be detailed in a notice in the Federal Register.

The Memorandum states that DHS will detain nearly everyone it apprehends including those with no criminal convictions, until they:

  • Are removed from the U.S.;
  • Are required to be released by statute or because of a binding settlement agreement or judicial order;
  • Become a U.S. citizen or hold other valid immigrant status;
  • Are found to have a credible fear of persecution by an asylum officer or IJ and agree to comply with any conditions imposed by ICE upon release; or
  • Are paroled into the U.S. (parole must be approved by ICE or CBP, but is not needed in “exigent circumstances such as medical emergencies”).

Since detention of those described above may not be possible immediately, detention will be prioritized based on an individual’s dangerousness and flight risk potential.

The Memorandum also directs immigration authorities to expand expedited removal proceedings which is the removal of individuals in as little as 24 hours without the opportunity to appear before an immigration judge.  Currently, use of expedited removal is limited to undocumented immigrants who are encountered within 100 air miles of the border and within 14 days of entry.  Once details are published in the Federal Register, use of the expedited removal provision will apply to individuals who have been in the U.S. for up to two years and are encountered anywhere in the U.S.

In addition, those noncitizens arriving on land from Mexico and Canada, and placed in removal proceedings, may be returned to Mexico or Canada to wait for their removal proceedings, in lieu of being held in custody.

Parole authority will be used sparingly and only on a case-by-case basis.

DHS has published “Fact Sheets” and “Frequently Asked Questions” regarding the implementation and interpretation of President Trump’s Interior Enforcement and Border Enforcement Executive Orders and may be found at

 

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