Donald Trump’s Executive Order Suspending Immigrant and Refugee Entry to the US

Yesterday, President Donald Trump signed an executive order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States,” instituting a suspension of entry to the U.S. and issuances of visas for people from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen (earlier designated as “areas of concern” under the 2016 Consolidated Appropriations Act). The order also temporarily suspends all refugee admission and indefinitely suspends refugee admissions from Syria. Citing authority from the Constitution and the Immigration and Nationality Act, the aim of the order is to protect Americans from terrorist attacks by foreign nationals who enter the United States as visitors, students, or through employment visas, as well as by refugees, particularly Syrian refugees.

Section 1 and 2 of the order set out its purpose, as well as the US policy to protect its citizens from foreign nations who are hostile towards America and its founding principles, including those who “engage in acts of bigotry or hatred (including ‘honor’ killings, or other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”

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Section 3 of the order requires the Secretary of Homeland Security, in consultation with the Director of National Intelligence, to conduct a review and determine what kind of information the U.S. will require from any country in order to adjudicate visas from its nationals or admit them to the U.S. The section also suspends entry to the US and the issuance of visas, immigrant and nonimmigrant from countries or areas of concern (primarily Iraq and Syria) in order to prevent infiltration by foreign terrorists or criminals—which are identified in section 217(a)(12)of the INA —for 90 days, while this review is taking place.

The information required is to be supplied within 30 days (with another 60 day extension if not supplied initially) and will be designed to allow the U.S. to determine that the individuals are who they say they are and that they are not a security or public-safety threat. The only stated exception to the ban on entry during that time is for individuals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas, and any G visas (as well as a case-by-case review based on a national interest exception). The Secretary of Homeland Security is to report to President Trump with a list of countries that complied and those that do not provide the necessary information will be excluded from the list until they comply.

Section 4 of the order requires the Secretary of State, Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation are also required to develop a uniform screening program including the following procedures:

• A database of identity documents provided by applicants to ensure that duplicate documents are not used by multiple applicants;
• Amended application forms that include questions aimed at identifying fraudulent answers and malicious intent;
• A mechanism to ensure that the applicant is who they claim to be;
• A process to evaluate the applicant’s likelihood of becoming a contributing member of society and in the national interest; and
• A mechanism to assess whether the applicant has the intent to commit criminal or terrorist acts in the US.

The earlier sections having suspended visa processing and entry to the US from the countries of concern, Section 5 of the executive order also suspends the U.S. Refugee Admissions Program (USRAP) for 120 days. During this time period, authorities will review the program and determine what additional measures should be taken to identify threats. Refugee applicants who are already in the USRAP process may be admitted when those additional procedures are initiated and completed. After the 120 days, refugee admission will resume under USRAP for nationals of countries that can be vetted through these additional procedures.

But there’s a key difference beyond the additional procedures: after the 120 day freeze, religious-based persecution claims will be prioritized if the individual’s religion is a minority religion in their country of nationality. This is apparently designed to favor Middle Eastern Christian refugees over Muslim ones, though the text of the order does not say this explicitly.

Section 5 of the order, however, suspends the entry of Syrian refugees permanently, or least until the president determines that sufficient changes were made to USRAP to lift the ban. It also limits refugee admissions in Fiscal Year 2017 to 50,000—down from 85,000 in 2016 (during which 84,995 refugees were admitted) and the 110,000-person refugee cap set for 2017 by the Obama administration. It does, however, allow a national interest exception on a case-by-case basis to its stringent new rules, including for persecuted religious minorities, pre-existing international agreements, or undue hardship for those who already in transit. Section 5 also gives states and local jurisdictions a greater role in the process of determining where refugees should be resettled, though it’s not quite clear how..

The order also requires that authorities:

• Consider rescinding the exercises of authority in section 212 of the INA, relating to the terrorism grounds of inadmissibility (Section 6);
• Expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the US (Section 7);
• Suspend immediately the Visa Interview Waiver Program (which allows foreign nationals who seek to renew a visa to request that the in-person interview at the US consulates or embassies be waived) and expand the Consular Fellows Program (Section 8); and
• Review all nonimmigrant visa reciprocity agreements to ensure that they are truly reciprocal (and if it is not in a specific case, the Secretary of State will adjust to match the treatment of US nationals by the country) (Section 9).

Under Section 10 of the order, in an effort to be transparent with the American people, authorities will make public information regarding the number of foreign nationals who have been charged, convicted, or removed based on terrorism related offenses (or other national security reasons). Information about how many foreign nationals who have been radicalized after entry to the US and engaged in terrorism, including providing material support will also be made public. Other information to made public includes information regarding number and types of gender-based violence against women by foreign nationals (including honor killings) and any other information relevant to public safety and security. Additionally, within one year of the order, the Secretary of State is asked to provide a report of the estimated costs of the U.S. refugee program.

The full text of the order is available here.