Trump’s Travel Ban 2.0
On January 27, 2017, President Trump signed an executive order stating that citizens of Iran, Iraq, Syria, Somalia, Sudan, Yemen and Libya would be banned from entering the United States. The order did not differentiate between visa holders, people with green cards or even dual citizens.
Lawyers in various jurisdictions filed lawsuits to stay the enforcement of the order. As the 9th circuit court of appeals considered a lower court’s decision to stay execution of the order, the Trump administration asked the court to hold its ruling so that the administration could issue a new order that was more carefully considered.
If you’re interested in the specifics of the January travel ban and how it differed from the Obama administration’s 2015 order preventing some individuals from these countries and people who had traveled to these countries from using the Visa Waiver Program (VWP), read our first blog: A Breakdown of Trump’s Travel Ban.
On March 6th, the Trump administration announced that it would issue a new version of the travel ban which would go into effect on March 16th. Before Travel Ban 2.0 became effective, a Federal Court in Hawaii enjoined government officials from enforcing it. President Trump stated publicly that he preferred the first ban to the second version, which he described as a “watered down” version of the first ban. This left many people confused about the differences between the two policies and where this left travelers from certain countries.
Old version of the Travel Ban
The initial version of the travel ban did not make any distinction between permanent residents of the United States (people with green cards) who are citizens of one of the seven countries, U.S. citizens who also hold citizenship in one of the seven countries that were listed in that version of the ban, and visa holders from one of those countries.
The prior version of the ban included all of these categories of travelers, and was announced and made effective immediately. As a result, U.S. citizens and permanent residents were afraid to travel, and many travelers who were en route to the U.S. when the ban was announced were detained at airports while Customs and Border Protection officials tried to determine how to properly implement the ban.
How is this new “Travel Ban 2.0” different from the original Travel Ban announced in January?
The new travel ban was announced ahead of time on March 6th to go into effect on March 16th. Some of the key differences in the new ban are:
- Syrian refugees are no longer completely banned- but will instead be prohibited for 120 days from the date the order goes into effect
- There is a ban on all refugee admissions for next 120 days, which is similar to the prior travel ban
- Only 6 of the 7 countries listed in the original ban are included in the new ban – Iraq has been removed
- The validity of visas that have been issued is not affected by the new ban
- The State and Homeland Security Departments will be allowed to grant waivers on a case-by-case basis, on a finding that “a foreign national demonstrates that his or her entry into the United States 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”
- The new ban makes clear that it does not include U.S. citizens and Lawful Permanent Residents (“green card” holders)
- The new ban makes no mention of priority treatment for Christians or any “religious minority”
Current Status of the Travel Ban
When this new travel ban was announced, the state of Hawaii responded that it would be filing a suit to temporarily enjoin the implementation of this new version of the travel ban. On March 15, 2017, the new travel ban was blocked by a District Court in Hawaii. Judge Derrick K. Watson issued a worldwide restraining order against the key sections of President Trump’s revised executive order.
This ruling is in addition to a federal judge in Maryland who delivered a similar but narrower ruling that blocked parts of the executive order as well. Judge Watson blocked the enforcement of Sections 2 and 6 of the Executive Order. Section 2 of the order is the travel ban of six Muslim majority countries and Section 6 is the suspension of the U.S. Refugees Program for 120 days.
Judge Watson’s ruling on the travel ban centered on a finding that the plaintiffs had a “strong likelihood” of success on proving a violation of the Constitution’s Establishment Clause. The Establishment Clause commands that “one religious denomination cannot be officially preferred over another.” Judge Watson found that the travel ban violates this command in its discrimination against Muslim travelers. He soundly dismisses the Government’s argument that because the executive order only affects 9% of the world’s Muslims, it cannot be discriminatory.
Judge Watson notes that a discriminatory purpose is at issue not how efficiently the law executes its discriminatory nature. Most interestingly in regards to how the travel ban will fare as this decision is appealed, is the fact that Judge Watson looks to the actions and words of the Trump Administration as evidence to the nature of the travel ban. He finds that the “plainly-worded statements” of President Trump and his advisors “betray the Executive Order’s stated secular purpose.”
What Is Next for Immigration law?
The Trump Administration has made clear that it intends to appeal these legal rulings and has already filed a notice of appeal in the 4th Circuit against the Maryland District Court ruling. The 4th Circuit Court of Appeals is widely seen as a more conservative court compared to the 9th Circuit, which had unanimously ruled against Trump’s original travel ban. However, regardless of the outcome of these appeals, it is likely that the case will end up in the Supreme Court, which still has only eight members who are ideologically split 4-4. Therefore, until an Appeals Court reverses Judge Watson, the travel ban is effectively frozen.
On March 23, 2017, President Trump’s administration filed a motion to expedite the appeal process in the 4th Circuit Court of Appeals, which was granted. The Court set oral arguments for May 8th. Before oral arguments occur, the government is expected to file a motion to remove the injunction until the appeal is decided by the 4th Circuit. The 4th Circuit will then have to decide at that time whether to lift the Maryland District Court’s injunction or leave it in place until the 4th Circuit decides the appeal on May 8.
Travel Risks Going Forward
For non-citizens and even some Permanent Residents, international travel always carries a degree of risk. Even before Mr. Trump became President and announced his travel bans, we wrote a blog called, US Visa: Travel Risks Explained by an Immigration Lawyer in Houston and a U.S. Immigration Travel Guide to help people understand some of the issues that people with visas and greencards may have when they travel internationally.
We strongly suggest people with green cards, visas, or other temporary travel documents be prepared in advance for international travel. Don’t risk your immigration status in the United States – know the issues and potential problems you may face before you travel.
Here’s the direct link to our free Travel Guide, click here:
