Introduction

On March 6, 2017, it was reported that President Trump had signed a new Executive Order on immigration, effective March 16, 2017.

The previous Executive Order on immigration, dated January 27, 2017 is currently subject to a nationwide temporary restraining order, which was upheld by the Ninth Circuit Court of Appeals on February 9, 2017, pending trial of the issue. The new Executive Order purports to fully rescind the previous Order.

In an apparent concession that the Executive Order on immigration dated January 27, 2017 would not withstand judicial scrutiny, many of the provisions of the Executive Order dated January 27, 2017 re-appear in the new Executive Order, in a watered down state. However, we remain of the view that the new Executive Order is as arbitrary, unjust and discriminatory as the Executive Order it was intended to replace.

Core Provisions

The new Executive Order contains the following core provisions:

  • Citizens of six nations (Syria, Iran, Libya, Somalia, Sudan and Yemen) are subject to a 90 day ban on obtaining visas to visit the US, while extreme vetting procedures on the issuance of visas are devised. The “travel ban” will not apply to current visa holders and those with permanent resident status.
  • A 120 day suspension on the admission of Syrian refugees to the US, while new vetting procedures are introduced. Religious minorities fleeing persecution will not be given preference, once the suspension is lifted.
  • The number of refugees admitted to the United States each year is to be reduced from 110,000 to 50,000.

It is reported that President Trump is willing to consider expanding the number of countries featured on the “travel ban” list and may even return Iraq to the list, if the country does not increase intelligence sharing.

Reaction to the New Executive Order on Immigration  

Critics have been quick to voice their dismay at the new Executive Order. The Order was described as “mean spirited and un-American” by Senate Democratic leader, Chuck Schumer of New York, while the Executive Director of Amnesty International USA has expressed concern that the new Order would “cause extreme fear and uncertainty for thousands of families by, once again, putting anti-Muslim hatred into policy.” The Director of the Immigrants’ Rights Project at the American Civil Liberties Union maintains that the Executive Order is “just another run at a Muslim ban”. The new Executive Order therefore appears to be as unpopular as its predecessor.

A New Legal Challenge?

At the time of writing, it seems likely the new Executive Order will face similar constitutional challenges to the Executive Order it was intended to replace. At first blush, it is arguable that the new Executive Order breaches the First Amendment of the US Constitution, enshrining the core democratic principle of freedom of religion.

The “travel ban” affects six predominantly Muslim countries and is executed in the context of President Trump’s election campaign pledge to ban all Muslims from entering the United States.

In its decision dated February 9, 2017, the Ninth Circuit Court of Appeals advanced a number of reasons for its decision to uphold the temporary restraining order on execution of the Executive Order dated January 27, 2017. First, the three Judge panel found President Trump’s campaign pledge to ban Muslims from entering the United States could be used as evidence at trial. Second, the Court found that the Government had not presented any evidence that nationals from the affected countries had perpetrated terrorist attacks in the US.

Similarly, there remains no evidence that nationals of the named countries have committed any recent terrorist attacks in the United States. In the absence of such evidence and, indeed, in the light of President Trump’s campaign pledge to ban Muslims from entering the United States, it is at least arguable that the ban is motivated by religious prejudice rather than national security. Indeed, a Federal Judge in Virginia suspended execution of the previous Executive Order in certain circumstances, on that basis that it was probably motivated by “religious prejudice” rather than “rational national security concerns”.

It is therefore likely that the new Executive Order will be subject to similar constitutional challenges to the Order it was intended to replace and may even be subject to a similar temporary restraining order. Certainly, Eric T. Schneiderman, the Attorney General of New York and a Plaintiff in a suit challenging the constitutionality of the Executive Order dated January 27, 2017 has affirmed that he “[stands] ready to litigate again, in order to protect New York’s families, institutions and economy.”

Conclusion

In our view, the new Executive Order is arbitrary in nature and discriminatory in effect. Furthermore, it is entirely superfluous. The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, passed under the Obama administration, introduced a stringent vetting procedure for individuals from the named countries seeking entry to the US and struck the right balance between safeguarding national security and upholding the core democratic principles of fairness, equality and freedom. We hope that, in time, the new Executive Order will be rescinded and replaced with a more sensible immigration policy.

At Davies Legal, we have extensive experience of representing clients in connection with a broad range of visa applications. We offer competitive fixed fee billing and an assurance that your case will be handled solely by a qualified attorney. Call now for advice on how we can assist you in your visa application and for a free no obligation quote.

Published: 7th March 2017

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