Yesterday I attended an hour-long townhall presentation put on by the Penn State Law Center for Immigrants’ Rights Clinic. This town hall discussed Trump’s new travel ban that was issued on Sunday, September 24, 2017, and fully goes into effect on October 18, 2017.
The Proclamation is entitled, “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” What is it and what are its effects?
What I learned there yesterday is what I would like to share with you today. Here are some questions, as a non-lawyer, that I will attempt to answer in this blog:
- What is a proclamation and how does it differ from an executive order?
- What countries are affected by this expanded ban?
- What happened to Sudan?
- When does this ban go into effect?
- What are the bans “rules?”
- If you are an international, what kind of help might be helpful?
Note that most of this information came from the Center for Immigrants Rights Clinic and two advocacy groups: the Muslim Advocates and the American-Arab Anti-Discrimination Committee. Thanks to all three of these organizations for helping to disseminate this information on this new, expanded Muslim and People of Color Ban – Version 3.0.
Several federal district courts entirely blocked Ban 1.0 as a constitutional violation of Freedom of Religion. Ban 2.0 was a streamlined version of Ban 1.0 and was partially allowed to go into effect last June. Both were executive orders. Muslim Ban 3.0, issued last Sunday, focuses on the people being rather than the agencies than ordering what the federal agencies need to do. It was a Presidential Proclamation, not an Executive Order.
Proclamation v. Executive Order
We rarely hear of Presidential Proclamations but often hear of Presidential Executive Orders. Ban 3.0 was promulgated as a proclamation rather than an executive order. I wondered what the difference was.
The effects, in my opinion, are relatively the same. The difference seems to differ on only who (or what) they are ordering. All US presidents have used both of these regulatory instruments that have the effect of law unless overturned by Congress or the US Supreme Court for superseding presidential authority. This power is loosely based on Section II of the US Constitution. The Constitution states, “executive power shall be vested in a President of the United States,” “the President shall be Commander in Chief of the Army and Navy of the United States,” and “he shall take care that the laws be faithfully executed.”
The differences between the two, according to the Yale University Library, is based on the focus of the targeted entity in the declarations.
Executive Orders are the formal means through which the President of the United States prescribes the conduct of business in the Executive Branch. They relate to how and what executive agencies do.
Proclamations, unlike executive orders, are aimed at those outside of the government. Proclamations can grant presidential pardons, commemorate or celebrate an occasion or group, call attention to events, or make statements of policy.
The first two immigration statements (aka Ban 1.0 and Ban 2.0) were Executive Orders. They ordered the State Department, Immigration and Naturalization Service, Homeland Security, and the Border Patrol, among the many federal agencies to prohibit the immigration and landing of Muslims from entering the United States. Ban 3.0 was a Presidential Proclamation.
Good Proclamations v Bad Ones
The most famous Presidential Proclamation was President Abraham Lincoln’s Emancipation Proclamation, issued on September 22, 1862; it went into effect on January 1, 1863. This Proclamation freed the slaves, ensuring the end of the bondage of Blacks when the Civil War ended. This Proclamation, along with the 14th Amendment ratified soon after the Civil War ended, granted full citizenship to permanent residents regardless of race.
The Emancipation Proclamation says, “Welcome!” In contrast, Trump’s Banning Proclamation, essentially says, “Go Home. Don’t come here. We don’t want you. And here’s who we don’t want.” As you can see, proclamations can do good as well a bad.
This most recent proclamation, just like the Emancipation Proclamation, has the force of law. The result, however, is not much different than an Executive Order. Bans 1.0 and 2.0 tell the agencies what they need to do. Ban 3.0 tells targeted individuals to “stay away,” or “we will deport you.” Unlike the two previous executive order bans, these restrictions listed in this proclamation are indefinite. BAD (and “Sad”).
Who is affected by this Ban? The Expanded Ban
So, who is Trump saying to go away?
Bans 1.0 and 2.0 solely targeted citizens of Muslim/Islamic religious-dominated countries. The new Proclamation targets citizens of 8 countries – 6 Muslim/Islamic-dominated countries, an Asian country, and a Latino/a country. Trump says all eight countries are a security risk.
Fyi, Muslim refers to people who follow the religion of Islam. These two terms can be used interchangeably. I’m using the religious term below for each country based on how they are commonly described.
These countries are:
- Chad – a central-African Muslim country;
- Iran — a Middle-Eastern Islamic country;
- Libya – a North-African Muslim country;
- Somalia – a Muslim East-African country;
- Syria – a western-Asian Muslim country; and
- Yemen – a Middle-Eastern Muslim;
The two non-Muslim countries that have been targeted are:
- North Korea – an Atheist-based Asian country currently conducting a war of words between Trump and Kim Jong-un; and
- Venezuela — A South American Catholic-based country riddled with violence and corruption which thousands of their citizens are fleeing and currently seeking refugee status in other nations.
This expanded list adds Chad as well as these two non-Muslim countries. Some speculate that this was purposefully done to skirt the religious freedom protections of the 1st Amendment of the US Constitution. Either way, it still targets people of color and is discriminatory.
Trump Removed One Country from Ban 3.
Ban 2.0 listed seven countries where their citizens are banned from entering the United States. His original ban included the six Muslim/Islamic countries listed above as well as Sudan. Sudan is a North-African Islamic country. Ban 3.0 no longer targets citizens of this country.
Why did Trump’s proclamation delete citizens of this country from the ban? We don’t know. Much of the rationale is, at least partially, a state secret. Trump won’t say why.
Gentlemen’s Quarterly, a magazine I rarely read, commented this way (and I agree with them):
“Obviously, it goes without saying that a travel ban is a gross and un-American way of handling immigration, but the removal of Sudan from the list is interesting and raises a lot of questions.”
And here’s the transcript of what Trump said when asked about the removal of Sudan – a muddling of what’s going on here.
President Trump on why Sudan was removed from the travel ban pic.twitter.com/ipEAS2F5XP
— Yeganeh Torbati (@yjtorbati) September 27, 2017
When does this ban go into effect?
This unending travel ban has two different start dates. According to Penn State Unversity’s Law Center for Immigrants Rights Clinic, the effective dates differ based on whether or not the banned country is listed in Executive Order EO 13780 (aka Muslim Ban 2.0).
For the five countries still listed from that Executive Order (Iran, Libya, Syria, Somalia, and Yemen), any national who lacks a “bona fide relationship” with someone or entity in the US was immediately banned from entry into the United States on September 24, 2017.
For the remaining three countries (Chad, North Korea, and Venezuela) that were added to this Proclamation’s travel ban, all restrictions and limitations on travel to the United States, regardless of a “bona fide relationship” take effect at 12:01 am on October 18, 2017. This additional level of restrictions also becomes active for the five original countries on this date.
Who is being denied entry?
That depends on which banned country you are coming from, The Proclamation does the following by country of origin:
- North Korea and Syria: entrance to the United States as an immigrant or non-immigrant is denied;
- Chad, Libya, and Yemen: entrance to the United States as either an immigrant or visiting the US on business or as a tourist is denied (visiting US-based family members appears to be ok);
- Iran: entrance to the United States as either an immigrant or as a visitor is denied UNLESS you are entering under an F (full-time educational programs), M (technical or vocational programs), or J (research scholars, professors and exchange visitors participating in programs that promote cultural exchange) visa. Extra scrutiny will be done with people seeking this exception;
- Somalia: entrance to the United States as an immigrant is denied. Visitors (i.e., “non-immigrants”) will be subject to additional scrutiny (which as far as I can tell, is not described in the proclamation); and
- Venezuela: entrance to the United States as a visitor either for business or pleasure is denied IF you are on the list of certain Venezuelan government officials; this ban is also extended to their family member. Visitation and/or immigration by others from this country is still allowed.
What is a Bona Fide Relationship?
According to Muslim Advocates and the American-Arab Anti-Discrimination Committee’s Muslim Ban 3.0 Fact Sheet:
Foreign nationals who can claim a “bona fide relationship” with a person or entity in the U.S. include:
Individuals who have a close familial relationship in the U.S. This includes parents (including in-laws and stepparents), spouses, fiancées, children (including in-laws), siblings (including in-laws), half-siblings, grandparents, grandchildren, aunts, uncles, nieces, nephews, and cousins.
Individuals who have a “formal, documented” relationship with a U.S. entity that was “formed in the ordinary course.” Examples of such a relationship include: students who have been admitted to a U.S. university; workers who have accepted an offer of employment from a U.S. company; and lecturers who have been invited to address a U.S. audience.
Who from these targeted countries are exempt from this travel ban?
Again, according to According to Muslim Advocates and the American-Arab Anti-Discrimination Committee’s Muslim Ban 3.0 Fact Sheet:
Lawful permanent residents (green card holders);
Those admitted or paroled after the effective dates in Section 7 of the Proclamation;
Those with an otherwise valid document – rg. a transportation letter, appropriate boarding foil, or advance parole document – on the Proclamation’s effective date;
Dual nationals when the individual has a passport issued by an unaffected country;
Those traveling on diplomatic visas such as a G visa;
Those granted asylum, admitted as a refugee, or granted related relief.
Waivers to the Travel Ban
Section 3 of the Proclamation does allow for waivers on a case-by-case basis. Since waivers are vague and based on interpretation and how the individuals present themselves, access to these waivers might be limited, in my opinion. Once again, I’m not a lawyer, but I would recommend that people from these targeted countries seek legal advice from a qualified immigration attorney or clinic before attempting entry to this country to improve their odds of obtaining such a waiver.
The Fact Sheet states that waivers can occur under the following circumstances.
When denying entry would cause the foreign national undue hardship and their entry would not pose a threat to national security or public safety, and would be in the national interest; and
On a case-by-case basis. Case-by-case waivers may not be granted categorically, but may be granted in individual circumstances such as:
Those previously admitted and outside the U.S.;
Those with established significant contacts with the U.S. but currently outside the U.S. on the effective date;
Those seeking to enter the U.S. for significant business or professional obligations;
Those seeking to visit or reside with a close family member and whose denial would cause undue hardship;
Those who are an infant, a young child, an adoptee, or in need of urgent medical care or with those with special circumstances;
Those employed by the U.S. government; and
Those traveling with purposes related to business with the U.S. government or on behalf of certain international organizations.
The Center for Immigrant Rights Clinic gives further details on these waivers.
Section 3(c) of Presidential Proclamation on Enhancing Vetting Capabilities & Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats includes a waiver scheme for certain nationals who would otherwise be suspended from entering the United States. The burden is on the foreign national to show that his or her entry (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.
The Proclamation states that case-by-case waivers will not be issued categorically, and goes on to list the following ten situations in which a waiver would be appropriate:
the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date under section 7 of this proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;
the foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date under section 7 of this proclamation for work, study, or other lawful activity;
the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfullyadmitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship;
the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee), and the foreign national can document that he or she has provided faithful and valuable service to the United States Government;
the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
the foreign national is traveling as a United States Government-sponsored exchange visitor; or
the foreign national is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes
In reading the additional information on these waivers, several items popped out to both the lawyers and me at the Clinic.
First, “undue hardship” is not defined in either the immigration statute or in the regulations. This term only appears in the Muslim Bans 2.0 and 3.0. The term that does show up in the rules is “extreme hardship.” And that term doesn’t define family separation or relocation as an “extreme hardship.” So I could see someone, on a case by case basis, being denied a waiver under section 3(c), reason A, even when she can show that they are not a threat to national security (reason B) and their entry is in the national interest (reason C).
Second, who defines what “the national interest” is? I could easily see a consulate employee denying entry simply because their definition is limited to say, for example, a need for a high-level employee but not for that person’s family to accompany her.
Third, what does national security” actually mean? Since many of the decisions on the travel ban seem arbitrary (for example, each country has differing levels of scrutiny and types of bans based on the proclamation’s reasoning for the travel ban), how would a consulate employee make a fair decision on security? The question is what type of levels of evidence would be required to pass this test.
And finally how long would each applicant have to wait before a waiver decision is made? Keeping people in limbo, particularly when family members are separated, is stressful, intimidating, and hateful.
All three travel bans are incongruent with our country’s history of welcoming open arms. Our Presidential Executive Orders and Proclamations should all be following the sentiment proclaimed at the base of Lady Liberty, aka the Statue of Liberty:
“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!
Instead, our government is telling the world and people of color, especially people from Muslim and Islamic countries to “stay away, ” or “we will deport you.”
If you are a foreign national, be aware of what this proclamation does. Search for and contact an immigration lawyer to help you circumnavigate these torturous waters. Here’s an immigration attorney search link I found that might help . And don’t leave the US if you are already here without first determining if you are likely to be able to return.