The New Entry Suspensions and Restrictions: A Synopsis (with Update on SG Letter to Court)

Based on my very quick and preliminary reading of the President’s new proclamation, below is my summary of who is affected.  I’ll update and correct this post as warranted.  I wrote earlier today about the likely impact of the new restrictions on the cases pending in the Supreme Court.  [UPDATE:  Solicitor General Noel Francisco just sent the following letter to the Clerk of the Supreme Court.  His proposal–that all parties simultaneously brief the impact of the new rules on Thursday, October 5–is rather odd.  After all, he’ll be filing his reply brief on Tuesday, October 3, and the parties, Justices and clerks will be spending the next couple of weeks preparing for the scheduled October 10 oral argument–an argument that might never happen.  One might have thought the SG would instead file a brief now, or in the next few days, explaining to the Court why the cases are moot, and thereby save everyone the trouble of so much unnecessary work so close to oral argument.]:

Dear Mr. Harris:

Earlier today, the President issued the attached Proclamation, pursuant to Section 2(e) of Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) (Order). The Proclamation takes effect (with certain exceptions) today, September 24, 2017, following the expiration of the 90-day entry suspension in Section 2(c) of the Order, which ends today. See pp. 26-27. As the Proclamation explains, it was issued after the completion of a worldwide review conducted under Section 2(a) of the Order to determine what additional information (if any) is needed from each foreign country to assess whether that country’s nationals who seek to enter the United States pose a security or safety threat. See pp. 1-7. At the recommendation of the Acting Secretary of Homeland Security, and in consultation with the Acting Secretary, the Secretaries of State and Defense, and the Attorney General, the Proclamation imposes certain conditional restrictions on entry into the United States of nationals of a small number of countries based on the President’s findings regarding those countries’ information-sharing capabilities and practices and other serious terrorism-related risks the countries present. See pp. 7-27. The government respectfully suggests that the Court direct the submission of simultaneous supplemental briefs from the parties, to be filed no later than 5:00 p.m. on October 5, 2017, addressing the effects of the Proclamation on the issues currently pending before the Court in these cases.

 

Sincerely, Noel J. Francisco, Solicitor General]

The entry of nationals of Sudan is no longer restricted.

The entry of the nationals of seven nations as immigrants is suspended indefinitely:  Iran, Libya, Somalia, Syria and Yemen, all of which were subject to the March entry ban, as well as Chad and North Korea, which were not covered by the earlier ban.  An “immigrant” is defined in the Proclamation as someone admitted on an immigrant visa, who would, when in the U.S., become a lawful permanent resident.

The entry of nonimmigrants is suspended as to some or all of the nationals of seven countries.  In descending order of the comprehensiveness of the suspension:

The entry of nonimmigrants of the nationals of North Korea and Syria is suspended, without any country-specific categorical exceptions.

Nationals of Iran may not enter as nonimmigrants except under valid student (F and M) and exchange visitor (J) visas.  Iranian nationals entering under those three forms of visas will be “subject to enhanced screening and vetting requirements.”

Nationals of Chad, Libya and Yemen may not enter as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, but may otherwise enter as nonimmigrants.  This restriction applies as well to a small number of Venezuelan nationals — officials of Venezuelan agencies 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, as well as their immediate family members.

All other nationals of Venezuela who are visa holders will be subject to appropriate additional measures to ensure their traveler information remains current.

And “additional scrutiny” will be applied to the visa adjudications and entry decisions regarding Somali nationals, “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.”

* * * *

The suspensions will generally become effective at 12:01 a.m. eastern daylight time on October 18, 2017, except that their effect is immediate–i.e., continuing–for anyone in the covered categories whose entry was already barred by Section 2(c) of the March Executive Order as of this morning (that is to say, covered nationals of Iran, Libya, Somalia, Syria and Yemen who lack a credible claim of a bona fide relationship with a person or entity in the United States).

The suspensions will be regularly reevaluated, and no less frequently than every six months.

* * * *

As I read the proclamation, the various entry suspensions listed above do not apply to the following:

i. Lawful permanent residents of the United States (Sec. 3(b)(i)).

ii. Persons who are inside the United States at 12:01 a.m. eastern daylight time on October 18, 2017 (Sec. 3(a)(i)).

iii.  Persons who have a valid visa at 12:01 a.m. eastern daylight time on October 18, 2017 (Sec. 3(a)(ii).

iv.  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 October 18 or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission (Sec. 3(b)(iii)).

v.  Any dual national who is traveling on a passport issued by a country other than the eight covered countries (Sec. 3(b)(iv)).

vi.  Anyone admitted to or paroled into the United States on or after October 18 (Sec. 3(b)(ii)).

vii.  A person 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 (Sec. 3(b)(v)).

viii.  A foreign national who has been granted asylum by the United States (Sec. 3(b)(vi)).

ix.  A person who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture (Sec. 3(b)(vi)).

x.  A person who has already been admitted to the United States as a refugee (Sec. 3(b)(vi)).  [It’s not clear to me what the limiting effect of “already” is supposed to be, because Section 6(e) specifies that an individual otherwise covered by the suspensions may continue to seek refugee status.]

xi.  Any person granted a “case-by-case,” individualized waiver by a consular officer or CBP official, which “may be granted only if [the] foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the national security or public safety of the United States; and (C) entry would be in the national interest” (Sec. 3(c)).

Five relevant government documents:

  1. Proclamation: Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats
  2. Responses to Queries (RTQ) – For Internal Use Only
  3. Fact Sheet and FAQ (0924) – Bullets
  4. Fact Sheet V.11 – Narrative
  5. Press Release President Donald J. Trump Announces Enhanced National Security Measures

  

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).