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Clarifying Muddied Waters: Making Sense of President Trump’s January 27 Executive Order

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Maria del Carmen Ramos

The Immigration Bulletin was created to help our clients adapt to constantly evolving immigration laws, regulations, and policies. To do so, we strive to provide clients access to the latest information. Of course, it’s more important to be accurate than fast. So we have taken a wait-and-see approach before updating our clients on President Trump’s recent controversial Executive Order on immigration—and for good reason because it was not clear until yesterday that green card holders should be able to travel outside the country and re-enter without fear of being detained.

Background

On January 27, 2017, President Trump signed an Executive Order—officially titled, “Protecting the Nation from Foreign Terrorist Entry into the United States”—for the stated purpose of “ensur[ing] that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” Throughout the campaign, President Trump spoke of a ban on refugees from Muslim-majority countries (sometimes referred to in the campaign by proponents and opponents alike as a “Muslim ban”). In fact, the Executive Order addresses refugees by suspending the U.S. Refugee Admissions Program for 120 days, prioritizing refugee claims based on religious-based persecution, suspending entry of Syrian refugees indefinitely, and lowering the total number of refugees that may be admitted. But it was uncertain whether the Executive Order was limited to—or only affected—refugees.

Lawful Permanent Residents

Although the Trump administration has contended the Executive Order was not intended to apply to green card holders from the Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen, a plain reading of the Executive Order certainly creates some doubt:

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

“Alien” is a term of art in immigration law meaning non-citizens. And a green card is an immigrant visa. Given the wording of the Executive Order, it could be read to bar the admission of green card holders from the designated countries.

According to news accounts, Department of Homeland Security (DHS) recommended excluding green card holders from the Executive Order’s scope, but that recommendation was overruled by the White House. The White House has denied those reports. But regardless of whether the White House overruled any DHS recommendation, DHS in fact initially applied the temporary ban on immigrant and nonimmigrant entry to green card holders, detaining (according to press accounts) 109 green card holders.

On January 28, the day after the Executive Order was issued, a district judge in the Eastern District of New York issued a nationwide ban enjoining DHS and Customs and Border Protection (CBP) from removing (among others) holders of a valid immigrant or nonimmigrant visa. The next day, both the White House (through White House Chief of Staff Reince Preibus) and DHS have stated that the Executive Order doesn’t apply to green card holders going forward. So green card holders were safe to travel outside the United States without fear of being denied re-entry, right?

Not so fast. On Sunday, January 29, 2017, CNN reported that two White House sources familiar with the matter said the Executive Order would apply to green card holders and that green holders would have to apply for re-entry under some undisclosed waiver process that had purportedly been established. The same day, DHS issued a statement suggesting that green card holders would be admitted on a case-by-case basis, although the statement made no mention of a waiver: “[A]bsent the receipt of significant derogatory information indicating a serious threat to the public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” But CBP, the DHS division charged with processing and inspecting green card holders at their place of entry, states on its website that the Executive Order, in fact, applies to green card holders and that green card holders must obtain a “national interest waiver” to enter the country.

The process identified by CBP was entirely inconsistent with immigration law. To be sure, every time a non-citizen enters the United States, CBP checks to determine the person’s admissibility. Section 212(a) identifies thirteen categories of non-citizens who are inadmissible. One of the grounds for inadmissibility is whether the person seeking entry is a terrorist. Consequently, it is possible to interpret DHS’s statement that admissibility of green card holders will be determined on a case-by-case basis as being consistent the normal process.

But that interpretation of the DHS statement was belied by CBP’s reference to a “national interest waiver” (and the reference by other White House sources to a waiver process). It’s worth noting that a “national interest waiver” has no application here. The only time a “waiver” would be needed—and it wouldn’t be a “national interest waiver”—is where CBP determines the green card holder is inadmissible because he or she has a communicable disease, has a physical or mental disorder that may cause harm to himself or others, is not properly vaccinated, has been convicted for crimes of moral turpitude, has violated immigration laws, is a prostitute, has multiple criminal convictions, or is likely to become dependent on need-based government assistance.

Fortunately, the White House released a memo yesterday addressed to the Acting Secretary of State, Acting Attorney General, and the Secretary of Homeland Security stating that the Executive Order does not apply to lawful permanent residents of the U.S. Since the memo was issued, CBP has updated it’s website to state more definitively that the Executive Order does not apply to green card holders:

Under the recent guidance from the White House, we will continue to ensure that lawful permanent residents are processed through our borders efficiently. Under that guidance, the Executive Order issued January 27, 2017, does not apply to their entry to the United States. U.S. Customs and Border Protection will continue to execute its mission to protect the homeland in its processing of all individuals at ports of entry.

U.S. Citizens

On its face, the Executive Order does not apply to U.S. citizens. And there has been no suggestion that U.S. citizens could somehow be barred reentry by the Trump administration, but there have been accounts of U.S. citizens (originally from one of the seven countries) being subjected to heightened inspection. In addition, based on statements Mr. Preibus made during his recent Meet the Press appearance, U.S. citizens returning from one of the countries identified in the Executive Order also should expect to be subject to heightened scrutiny upon their return.

Takeaways

Despite statements on January 29 that lawful permanent residents would be unaffected by the Executive Order, significant doubt whether that was in fact the case existed until yesterday. Given the guidance issued by the White House yesterday, green card holders should feel some relief. Notwithstanding, prudence dictates that any U.S. permanent resident who was born in or who is a current or former national of any of the seven countries—Iran , Iraq, Libya, Somalia, Sudan, Syria, and Yemen—consult  with immigration counsel before traveling internationally. Continue to check back with us for updates on the status of this important immigration issue. For more information, please contact Maria del Carmen Ramos at 813.227.2252 or mramos@slk-law.com.

 

 

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