Current Status of Executive Order Proceedings

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This page will be continually updated as events develop

Background:

On January 27, 2017, Trump issued an Executive Order (EO) entitled "Protecting the Nation from Foreign Terrorist Entry into the United States.” Full text of the executive order has been provided in this blog book. 

What the Agencies Are Doing:

DHS has directed that:

“For the next 90 days, nearly all travelers, except U.S. citizens, traveling from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen will be temporarily suspended from entry to the United States. The 90-day period will allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals 

Importantly, however, Lawful Permanent Residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate.  The entry of these individuals, subject to national security checks, is in the national interest. Therefore, we expect swift entry for these individuals.

In the first 30 days, DHS will perform a global country-by-country review of the information each country provides when their citizens apply for a U.S. visa or immigration benefit. Countries will then have 60 days to comply with any requests from the U.S. government to update or improve the quality of the information they provide. 

DHS and the Department of State have the authority, on a case-by-case basis, to issue visas or allow the entry of nationals of these countries into the United States when it serves the national interest.  These seven countries were designated by Congress and the Obama Administration as posing a significant enough security risk to warrant additional scrutiny in the visa waiver context. 

The Refugee Admissions Program will be temporarily suspended for the next 120 days while DHS and interagency partners review screening procedures to ensure refugees admitted in the future do not pose a security risk to citizens of the United States.

The Executive Order does not prohibit entry of, or visa issuance to, travelers with 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.

The Department of Homeland Security along with the Department of State, the Office of the Director of National Intelligence, and the Federal Bureau of Investigation will develop uniform screening standards for all immigration programs government-wide.

Upon resumption of the U.S. Refugee Admissions Program, refugee admissions to the United States will not exceed 50,000 for fiscal year 2017. 

The Secretary of Homeland Security will expedite the completion and implementation of a biometric entry-exit tracking system of all travelers into the United States. 

The Department of State will suspend the Visa Interview Waiver Program and ensure all individuals seeking nonimmigrant visas undergo an in-person interview.”

Lawsuits

Lawsuits were filed and temporary stay obtained in four states (New York, Massachusetts, Virginia and Washington).  The most comprehensive ruling from the New York courts is discussed below.

Stay orders from all four States are attached below.

 

The New York Court Ruling

Judge Ann M. Donnelly of the US District Court for the Eastern District of New York acted on an Emergency Motion for Stay of Removal in a putative class action complaint (Darweesh, et al. v. Trump, et al.) against the EO.  In her ruling dated  January 28, 2017,  the Judge granted temporary stay of removal proceedings in the case before her. 

The judge ordered a stay of government action against:

→ Individuals who have their refugee status applications already approved by the USCIS;

→ Other individuals from the barred countries who hold valid immigrant visas (green cards) and nonimmigrant visas (such as tourists, students, temporary workers, etc); and

→ Other individuals from the barred countries who are already otherwise legally authorized to enter the USA.

The stay will be in effect until the case is finally decided.  This, however, does not mean that the government has already lost the case.  The judge has not allowed the affected people to enter the USA, nor has she ruled against the government on the merits.  But, this order does portend a strong likelihood that the Trump administration will lose this case on the merits. 

Even though, the court ruling is broad enough to cover the entire USA, the government can probably choose to consider itself bound by this ruling only in the jurisdiction of each court and not nationally.  There is precedent for that.  USCIS, CBP and other implicated agencies can claim that being national agencies, they are restrained only locally by local orders.  However, the local-effect argument would no longer be legally tenable if the court accepts that the requested class consists of all the people nationally who are suffering from similar harm (class certification).  A ruling in a class action would be binding upon the government in relation to the entire class of people covered by the class certification, irrespective of where they are located.

Currently, New York Court is being asked to provide a clarification whether or not its ruling is in fact national in scope.

As of Sunday, 29 January morning, Trump administration is still issuing conflicting and confusing statements.  On the same afternoon, the DHS has issued a press release entitled “Department Of Homeland Security Response To Recent Litigation:”

The Department of Homeland Security will continue to enforce all of President Trump’s Executive Orders in a manner that ensures the safety and security of the American people.  President Trump’s Executive Orders remain in place—prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety.

That appears to be clear enough.  They will do what the president directs.  But what about the various court rulings?  DHS throws in this nugget at the end of the press release:

The Department of Homeland Security will comply with judicial orders; faithfully enforce our immigration laws, and implement President Trump’s Executive Orders to ensure that those entering the United States do not pose a threat to our country or the American people.

In a later press release, DHS has repeated the same assurances.  Apparently DHS will obey the courts, congress and the president.  So, do they intend to follow the given court rulings nationally or just locally?  Unfortunately, this is still far from clear.