Travel Ban III

On Sunday September 24, 2017, President Trump amended the existing travel ban of March 6, 2017 (Executive Order 13780) by proclamation (titled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”). This version of the travel ban attempts to address many of the issues that the courts had identified in the previous versions. Specifically, this third ban is different in that it (1) sets forth specific reasons for disallowing entry of nationals of certain countries, (2) applies different levels of scrutiny and suspension on entry to different countries, (3) provides mechanisms for countries to be added or removed from the list, (4) is indefinite in duration, (5) adds North Korea, Venezuela, and Chad while removing Sudan, and (6) provides detailed information on persons who are not covered by it, including classes of persons identified by the Supreme Court.

This travel ban version may moot the legal challenge to E.O. 13780. The Supreme Court has already cancelled the scheduled October oral argument and asked the parties to submit briefs by October 5, 2017, addressing “whether or to what extent the proclamation may render the case moot.” The Supreme Court also asked for briefings on the suspension of the nation’s refugee program, which is not addressed in the proclamation and is scheduled to expire in October, as to whether that issue would soon be moot.

Specifically, and notably, the proclamation covers the following:

Explicit references throughout to “findings” concerning national security based on reports from the Department of Homeland Security.
Extensive claims that certain countries have “’inadequate’ identity-management protocols, information-sharing practices, and risk factors… ” These countries are Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. Procl. (1)(g). All immigrants from such countries are denied entry, except for Venezuela. Procl. (1)(h)(ii). Non-immigrants are restricted entry on a more “tailored” approach. (1)(h)(iii). “Entry restrictions” and “limitations” are announced for nationals of Somalia. Procl. (1)(i).
Section 2 of the Proclamation sets out in detail the classes of the affected visa-applicants:

	Immigrants	Non-immigrants
	Immigrants	B1 (business) B2 (tourist) visas	Students (F or M visa)	Exchange visitors (J visa)	Other non-immigrants
Chad Procl. 2(a)(ii)	Entry suspended.	Entry suspended.	No reference.	No reference.	No reference.
Iran Procl. 2(b)(ii)	Entry suspended.	Entry suspended.	Entry allowed. Enhanced screening.	Entry allowed. Enhanced screening.	Entry suspended.
Libya Procl. 2(c)(ii)	Entry suspended.	Entry suspended.	No reference.	No reference.	No reference.
North Korea Procl. 2(d)(ii)	Entry suspended.	Entry suspended.	Entry suspended.	Entry suspended.	Entry suspended.
Syria Procl. 2(e)(ii)	Entry suspended.	Entry suspended.	Entry suspended.	Entry suspended.	Entry suspended.
Venezuela Procl. 2(f)(ii)	B1/B2 visa entry of certain government officials and their families is suspended. Visa holding nationals are subject to “additional measures.”
Yemen Procl. 2(g)(ii)	Entry suspended.	Entry suspended.	No reference.	No reference.	No reference.
Somalia Procl. 2(h)(ii)	Entry suspended.	No reference. Visa adjudications are “subject to additional scrutiny.”

These measures affect only persons who are outside the US on October 18, 2017 and do not have a valid visa on that date. Procl. 3. Lawful permanent residents (i.e. green card holders), parolees, dual nationals, diplomats, asylum seekers and refugees that have been granted asylum, and individuals given protection under the Convention against Torture are exempt. Procl. 3(b).
Immigration officials also have discretion to permit affected persons entry. Procl. 3(c). The proclamation provides guidance for applying such discretion by way of examples:
1. Foreign nationals who were previously admitted to the U.S. for long-term activity and seek to reenter to resume said activity. Procl. 3(c)(iv)(A).
2. Foreign nationals with “significant contacts” in the U.S. Procl. 3(c)(iv)(B).
3. Foreign nationals entering for “significant business or professional obligations.” Procl. 3(c)(iv)(C).
4. Foreign nationals entering to visit or reside with a close family member. Procl. 3(c)(iv)(D).
5. Infants, young children, adoptees, individual needing urgent medical care, and similar cases. Procl. 3(c)(iv)(E).
6. U.S. employees and their dependents. Procl. 3(c)(iv)(F).
7. Individuals traveling for purposes related to the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq. Procl. 3(c)(iv)(G).
8. Canadian permanent residents who apply for a visa within Canada. Procl. 3(c)(iv)(H).
9. J-visa holders with U.S. Government sponsorship. Procl. 3(c)(iv)(I).
10. Foreign nationals entering at the request of a U.S. Government department or agency. Procl. 3(c)(iv)(J).

The Proclamation also restores visas cancelled or revoked under the previous Executive Order 13769 of January 27, 2017, and states that such cancellation or revocation “shall not be the basis of inadmissibility for any future determination about entry or admissibility.” Procl. 6(d).

In sum, the proclamation appears to attempt to remedy the issues identified by the Courts in the previous executive orders. The ban extends to not just Muslim-majority countries (yet still affects predominantly Muslim-majority countries), extensive reference is made to the countries’ identity-management and information-sharing protocols and procedures as a reason for the suspensions, repeated reference is made to the president’s findings based on government reports (a requirement under 8 U.S.C. 1182(f) which the Court of Appeals for the Ninth Circuit found lacking from the second travel ban), the ostensible reasons are specific to each country, exemptions are made for persons with significant ties to the U.S. and others, notice is provided and guidance is given to customs and immigrations officers on how to implement this proclamation. However, in context with the previous two executive orders restricting travel illegally and unconstitutionally, its intent to discriminate remains an open issue that the Supreme Court and possibly, once again, the federal trial and appellate courts will address.