Supreme Court Upholds Travel Ban 3.0

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The U.S. Supreme Court in a 5-4 decision has held that President Donald Trump’s Proclamation No. 9645 , known as “Travel Ban 3.0,” can stand. Trump, et al. v. Hawaii, et al. , No. 17-965 (June 26, 2018). Certain individuals from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen will continue to be subject to the ban.

Chief Justice John Roberts delivered the opinion for the Court, joined by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. Justices Kennedy and Thomas also filed a concurring opinion. Two dissenting opinions were filed: one by Justices Stephen Breyer and Elena Kagan, and one by Justices Sonia Sotomayor and Ruth Bader Ginsburg. This resulted in a final vote of 5-4.

The case is remanded to the U.S. Court of Appeals for the Ninth Circuit.

Argued on April 25, 2018, Trump v. Hawaii was not only the last case to be heard by the Court this Term, but one of the most eagerly awaited oral arguments. The Court’s decision marks the culmination of ongoing litigation initiated January 2017 over the series of travel bans issued by the Trump Administration.

Four issues were presented to the Court:

  • Are Respondents’ (the State of Hawaii, et al.) challenges to the Proclamation justiciable?
  • Is the Proclamation a lawful exercise of the President’s authority to suspend the entry of aliens from abroad?
  • Does the Proclamation violate the Establishment Clause of the Constitution?
  • Is the global injunction too broad?

Justiciability – A Threshold Determination

If a case is not justiciable, no court, not even the Supreme Court, can hear it. The case would have been dismissed, and the travel ban simply would have remained in effect.

The government argued that the issue of whether the President can suspend the entry of aliens was not properly before the Court and that the respondents (the State of Hawaii, et al.) lacked standing because they suffered no constitutional injury. The respondents contended the ban violated the Immigration and Nationality Act (INA), that the Court “had the authority to enjoin ‘violations of federal law by federal officials,’ including the President,” and that their constitutional rights were violated because the State of Hawaii, as operator of the University of Hawaii, would suffer “proprietary injuries” and the individual plaintiffs would not be able to reunite with close family members.

The Supreme Court decided that it was not necessary to determine whether the statutory claims were reviewable, but held that the individual plaintiffs had standing to sue. The Court concluded that the Proclamation separated the plaintiffs from family members and that constituted a concrete injury that created proper standing.

Did the President exceed his authority?

The government argued that on the basis of both the Constitution and immigration laws, the President is granted very broad authority to determine what is in the best interests of the country when it comes to determining who may “enter” the United States. The President decided what countries to include in the ban based on a “worldwide review” conducted by various government agencies to determine which countries provided adequate information to allow U.S. officials to make informed decisions about the admissibility of their citizens to the United States. The government argued that because the countries included in the ban did not provide adequate information, it was in the best interest of the United States to exclude them. The respondents argued that, in taking this action, the President was exceeding his authority because the ban was not temporary in nature, and it was inconsistent with the other parts of the INA and, thus, inconsistent with Congressional intent. Moreover, they argued, the President’s undisputed authority with respect to immigration does not authorize him to undermine the whole statutory scheme of the INA.

The Supreme Court held that the Proclamation was a matter “within the core of executive responsibility” and that, given the Administration’s worldwide review process and the exemptions and waivers set forth in the Proclamation, it could “reasonably be understood to result from a justification independent of unconstitutional grounds.” Justices Breyer and Kagan disagreed. The fact that the Administration is hardly applying the Proclamation’s exemption and waiver system, they argued, supports “the claim that the Proclamation is a ‘Muslim ban,’ rather than a ‘security-based’ ban ….” In other words, the dissenters argued that the Administration’s justification was not reasonable enough.

Does the Proclamation violate the Establishment Clause?

The Establishment Clause prohibits the government from favoring one religion over another. The respondents argued that President Trump’s own statements indicated that the Proclamation, like its predecessors, was a discriminatory “Muslim ban” and that other reasons offered for the ban were mere pretexts. The government argued that because the ban rests on a reasonable determination made after a worldwide review, the Court cannot “look behind the President’s factual determination in search of pretext ….” The government pointed out that although many of the countries that are subject to the ban were Muslim-majority countries, the “vast majority” of Muslim-majority countries were not subject to the ban, indicating that the analysis really was based on those countries that did not provide adequate information to the United States or otherwise presented risk ― thus satisfying the “facially legitimate and bona fide reason” test that applies in this area of the law.

The Supreme Court declined to rest solely on the “facially legitimate and bona fide reason” test. It analyzed the Proclamation by applying rational basis review. The Court held that there was no need to look beyond the Proclamation’s facial neutrality. In dissent, Justices Sotomayor and Ginsburg emphasized that the United States was “built upon the promise of religious liberty” and that the Court’s decision “fails to safeguard that fundamental principle.”

Is the injunction too broad?

The government had argued that even if the injunction is allowed to stand, it should “protect” only the named parties, not all nonparty aliens abroad, and that the Court “should reject the troubling but increasingly prevalent practice of legislation-by-injunction.” The respondents maintained that when an executive action is unconstitutional or violates a statute, it must be struck down “on its face” and that more limited relief would lead to an irrational fragmentation of the immigration system.

Justice Thomas, in a concurring opinion, addressed this issue. He expressed skepticism over a U.S. District Court’s ability to authorize such a broad injunction “preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency….”

Implications

The restrictions in the Proclamation will remain in effect for the indefinite future (and more countries may be added or removed).

Current restrictions:

Iran: Entry as immigrants and nonimmigrants is suspended, except for those in valid student (F and M) or exchange visitor (J) status (although these individuals should be subject to enhanced screening and vetting).

Libya and Yemen: Entry as immigrants and nonimmigrants in business and tourist status is suspended.

Syria and North Korea: Entry as immigrants or nonimmigrants is suspended.

Somalia: Entry as immigrants is suspended and decisions regarding entry as nonimmigrants will be subject to additional scrutiny.

Venezuela: Entry in tourist or business visitor status is suspended for officials of certain government agencies involved in screening and vetting practices and their immediate family members. Nationals of Venezuela who hold visas should be subject to additional measures to ensure traveler information remains current.

There are exemptions and limitation. According to the Proclamation, the restrictions will not be applied to:

  • Current lawful permanent residents (Green Card Holders)
  • Current visa holders
  • Dual nationals travelling on a passport from an unaffected country
  • Those travelling on diplomatic or diplomatic-type visas
  • Already-admitted refugees
  • Individuals granted protection under the Convention Against Torture
  • Individuals paroled or admitted to the U.S.

If one of the above exemptions does not apply, a Consular Officer should consider whether a waiver might be appropriate in order to grant entry to the U.S. by asking:

  • An unusual situation exists that compels immediate travel and delay would defeat the purpose of the travel.
  • A U.S. person or entity would suffer hardship if the applicant could not travel until after restrictions are lifted.
  • This includes a consideration of the information-sharing and identity management protocols of the individual’s country of nationality.

There are no categorical or blanket waivers, but the ban itself provides specific examples of when a waiver might be appropriate, assuming the above standards are also met. Examples include:

  • Applicant has previously been admitted for work, study, or other long-term activity and plans to continue that activity.
  • Applicant previously established significant contacts with the U.S. for work, study, or other lawful activity.
  • Applicant seeks to enter the U.S. for significant business or professional obligations and denial of entry would impair those obligations.
  • Applicant seeks to enter the U.S. to visit or reside with a close family member ( e.g., spouse, parent, or child).
  • Applicant is an infant, young child, or adoptee, or an individual needing urgent medical care.
  • Applicant has been employed by or on behalf of the U.S. government.
  • Applicant is traveling for purposes related to an international organization under the International Organization Immunities Act (IOIA), travelling for purposes of conducting meetings or business with the U.S. government, or travelling to conduct business on behalf of an international organization not designated under the IOIA.
  • Applicant is a Canadian permanent resident who applies for visa in Canada.
  • Applicant is traveling as a U.S. government-sponsored exchange visitor.
  • Applicant is traveling at the request of a U.S. governmental department or agency for law enforcement, foreign policy, or national security purposes.

When being considered for a waiver, individuals may be asked to provide additional personal information. While there is no specific waiver application, individuals are encouraged to submit information to show they qualify for an exemption or waiver. Individuals being considered for a waiver should be prepared to wait as the adjudication may take additional time to process.

To date, not many waivers have been granted. This fact was noted during oral argument by Justice Breyer, citing amicus briefs from the business community. This fact was again asserted in Justice Breyer’s dissent, questioning whether there was an appropriate waiver process in place. Now that the ban has been validated, the waiver procedure will be much more important.

What effect this ruling will have on the U.S. economy, including tourism to the United States, remains to be seen.

Jackson Lewis attorneys are available to answer inquiries about the Court’s decision and other developments.

© 2018 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome. 

Focused on labor and employment law since 1958, Jackson Lewis P.C.'s 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. We help employers develop proactive strategies, strong policies and business-oriented solutions to cultivate high-functioning workforces that are engaged, stable and diverse, and share our clients' goals to emphasize inclusivity and respect for the contribution of every employee. For more information, visit https://www.jacksonlewis.com .

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Everything You Need to Know about the Travel Ban

Webinar on the Repeal of the Travel Ban

On January 25th, PAAIA hosted a webinar discussion following President Biden’s decision to repeal the Travel Ban.

Participants included:

cyrus mehri

What is it?

Who was affected?

What did PAAIA do?

Immigration Attorneys

While the Travel Ban has officially been rescinded, visa applicants may still face difficulty in securing their applications for some time as the Administration works on rolling back the implementation of the policy. If you have the means to hire a U.S. immigration attorney to work on your behalf, that could be very beneficial to your cause.  An immigration attorney can help you sort through what the repeal of the Travel Ban means for you and your application, contact embassies on your behalf to follow up with your application, and prep you for your visa interview, but hiring an attorney will not guarantee that your visa application will be approved.  Below, we’ve compiled a list of websites where you can find prominent immigration lawyers.

The Iranian American Bar Association (IABA)

  • Has been working with PAAIA and Pars Equality Center to combat the Travel Ban and they are part of the lawsuit that focused on the ineffectiveness of the ban’s waiver provisions
  • IABA is an organization of Iranian American lawyers, so the Travel Ban hits close to home
  • IABA website contains contact information for multiple lawyers, but not all of them specialize in immigration
  • Released a report detailing their work on the Travel Ban

Pars Equality Center

  • Worked with PAAIA and Pars Equality Center to combat the Travel Ban and they were part of the lawsuit that focused on the ineffectiveness of the ban’s waiver provisions
  • Focused solely on Iranians and Iranian Americans, so immigration attorneys speak Farsi as well as English
  • Has competent immigration attorneys and accredited U.S. Department of Justice representatives
  • Provides information and help regarding the Travel Ban

Allan S. Lolly & Associates

  • Provides detailed information about the Travel Ban
  • Has obtained more than 14,000 visas and green cards for family members
  • Immigration attorneys only and website is organized by visa type (employment, marriage, waivers, etc)
  • Offers free consultations & has a toll-free phone number for persons located outside the U.S.

Immigratrust

  • Attorneys are fluent in English, Spanish, and Farsi
  • Provides detailed information on each visa category and when/how to apply
  • Has a blog with useful information about various immigration issues including the Travel Ban
  • Has an Iranian lawyer that has successfully gotten multiple waivers for Iranian clients
  • Provides information on how to handle your consular officer interview

Stone Grzegorek & Gonzalez LLP

  • Full-service immigration firm
  • Has Travel Ban FAQ
  • Multilingual, including some attorneys who speak Farsi
  • Focuses on all different types of immigration but includes areas on green cards for family and for violence survivors

PAAIA Travel Ban Articles

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New Data Shows Only 1.3% of Iranian Applicants Receive Travel Ban Waivers

Iranian American Organizations Welcome the Introduction of the No Ban Act

Senate Passes Amendment on Travel Ban Waiver Reporting

Sen. Murphy and Rep. Chu Introduce Legislation Blocking Travel Ban 3.o

Two Years Overdue: Time to End the Travel Ban for Good

PAAIA and Coalition Help Uncover Disturbing Waiver Statistics

PAAIA Distressed Over Supreme Court Decision to Uphold Travel Ban

PAAIA Thanks Senator Chris Van Hollen (D-Md) for Efforts to Disclose Travel Ban Details

Supreme Court Heard Case on Trump’s Travel Ban Today, Oral Arguments

PAAIA Files Amicus Brief w/ SCOTUS

PAAIA Leads Effort To Uncover Stats That Show Waiver Provisions Not Implemented Under Travel Ban 3.0

PAAIA and Iranian American Coalition Works with Senators to Seek Clarification of the Travel Ban “Waiver” Process

PAAIA Drafts Coalition Letter Requesting Clarification of the “Waiver” Process Outlined in Travel Ban 3.0

Iranian American Organizations Welcome 9th Circuit Court Ruling Against Trump Travel Ban 3.0

Congresswoman Chu Introduces Legislation Blocking President Trump’s Travel Ban 3.0 – PAAIA Urges Members Of Congress To Support H.R. 4271

SCOTUS Allows Trump Travel Ban To Stand; Iranian American Organizations Say The Fight Is Not Over

PAAIA and Iranian American Organizational Partners Issue Joint Statement on Supreme Court Ruling Allowing Full Enforcement Of Travel Ban 3.0  

PAAIA Files Refugee Supplement to Lawsuit Challenging President Trump’s Travel Ban 3.0

PAAIA Partnered with a Coalition of 15 Organizations Across the Country to Permanently Stop Travel Ban 3.0

PAAIA, Iranian American Organizations, and 13 Individual Plaintiffs File Challenge to Travel Ban 3.0

PAAIA Condemns Trump Administration’s New Travel Ban – Deeply Concerned Measures Will Cause Undue Hardship on Iranian American Families

PAAIA Discusses The Travel Ban With Iranian American Civil Rights Attorney, Cyrus Mehri

Judge Stays Consideration Of Preliminary Injunction, Orders Case to Move Forward in Iranian-American Orgs Case Against Trump Travel Ban

PAAIA Joins Call For Congressional Oversight Over The Travel Ban

You are donating to : PAAIA, Inc.

  • Supreme Court

Here’s What Is — and Isn’t — in the Travel Ban the Supreme Court Just Upheld

P resident Donald Trump’s third iteration of the travel ban can go into effect while lower courts review its merits, the Supreme Court ruled on Monday.

The Trump administration’s executive orders, aimed at restricting travelers from mostly Muslim-majority countries from entering the U.S., have faced contentious battles leading up to Monday’s ruling. The first version of the travel ban, Executive Order 13769, sowed chaos at airports and was almost immediately challenged in federal court. The White House later revised that version , only for it to face legal challenge, as well.

The latest version was issued in September , shortly before the Supreme Court was set to hear oral arguments on the previous iteration of the travel ban. It impacts travel from eight countries, some of which were included in the original ban. Travel ban 3.0 can now be enforced while the federal appeals courts hear arguments over its legality.

Here’s what to know about the order.

What’s in the ban?

On Sept. 24, President Donald Trump issued a proclamation that indefinitely blocks the travel of most citizens from Iran, Chad, Libya, North Korea, Syria, Yemen and Somalia. Venezuelan government officials and their immediate family members are also banned from entering the U.S. and visa holders who are Venezuelan nationals are to be subjected to additional screening.

The earlier ban sought to restrict travel from six-majority Muslim countries for 90 days while the federal agencies conducted a review of the screening process.

Under this order, the ban has no end date, but the federal government could consider revising the restrictions placed on countries if they meet a set of minimum standards for traveler identification and security.

What Are the Standards?

As TIME reported in September , those standards include the integrity of information used to confirm a traveler’s identity — including a country’s use of e-passports— and the amount of information shared about potential national security threats posed by travelers. The restrictions are also different for each country. For example, Iranian citizens under valid student and exchange visas are still permitted to enter the U.S., though they are subject to more thorough screening.

Are Refugees Affected?

Unlike the original travel bans, the order in September did not include any specific language about refugees. However, the Trump administration has capped refugee admissions at 45,000 for 2018 — the lowest in years – and boosted vetting for the refugee admissions program . The administration also limited resettlement for refugees from 11 “high-risk” countries for 90 days under an October order.

How did we get here?

A federal court in Hawaii blocked implementation of the order shortly before it was set to take effect on Oct. 18. A judge in Maryland also blocked order in part, saying that travelers with “bona fide” connections to people or businesses in the U.S. could still come to the U.S. (The Supreme Court had issued a similar ruling on a previous version of the travel ban in June.) In November the Ninth Circuit Court of Appeals granted an emergency stay allowing parts of the ban to go into effect. That ruling also exempted people with ties to the U.S. from the restrictions. The Supreme Court decision on Monday went further, allowing the entire ban to take effect.

What happens next?

The Supreme Court ruling does not keep the lower court challenges from going forward. According to SCOTUSBlog , oral arguments are scheduled in the Ninth Circuit in Seattle on Wednesday and in the Forth Circuit in Richmond, Virginia, on Friday.

The White House praised the ruling on Monday. “We are not surprised by today’s Supreme Court decision permitting immediate enforcement of the president’s proclamation limiting travel from countries presenting heightened risks of terrorism,” White House spokesperson Hogan Gidley said, according to a pool report. “The proclamation is lawful and essential to protecting our homeland. We look forward to presenting a fuller defense of the proclamation as the pending cases work their way through the courts.”

On Twitter, the American Civil Liberties Union , which has challenged the travel restrictions, struck a different chord: “This is not a ruling on the merits, and we continue our fight,” a tweet from ACLU read. “We are at the 4th Circuit Court of Appeals on Friday to argue that the Muslim ban should ultimately be struck down.”

This is not a ruling on the merits, and we continue our fight. We are at the 4th Circuit Court of Appeals on Friday to argue that the Muslim ban should ultimately be struck down. https://t.co/17CQDxpUhx — ACLU (@ACLU) December 4, 2017

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In Big Win For White House, Supreme Court Upholds President Trump's Travel Ban

Nina Totenberg at NPR headquarters in Washington, D.C., May 21, 2019. (photo by Allison Shelley)

Nina Totenberg

Domenico Montanaro - 2015

Domenico Montanaro

travel ban 3.0

Zainab Chaudry (from left), Zainab Arain and Megan Fair with the Council on American-Islamic Relations stand outside the Supreme Court for a rally against the Trump travel ban before oral arguments. Andrew Harnik/AP hide caption

Zainab Chaudry (from left), Zainab Arain and Megan Fair with the Council on American-Islamic Relations stand outside the Supreme Court for a rally against the Trump travel ban before oral arguments.

Updated at 6:40 p.m. ET

In a 5-4 ruling that gave broad leeway to presidential authority, the U.S. Supreme Court upheld President Trump's travel ban that barred nearly all travelers from five mainly Muslim countries as well as North Korea and Venezuela.

The president's proclamation was "squarely within the scope of Presidential authority under the INA," the court wrote in its majority opinion, referring to the Immigration and Nationality Act.

"A moment of profound vindication"

"Today's Supreme Court ruling is a tremendous victory for the American People and the Constitution," Trump said in a statement. "The Supreme Court has upheld the clear authority of the President to defend the national security of the United States. In this era of worldwide terrorism and extremist movements bent on harming innocent civilians, we must properly vet those coming into our country.

"This ruling is also a moment of profound vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what it takes to secure our border and our country. As long as I am President, I will defend the sovereignty, safety, and security of the American People, and fight for an immigration system that serves the national interests of the United States and its citizens. Our country will always be safe, secure and protected on my watch."

In a statement to reporters at the White House, President Trump said, "The ruling shows that all the attacks from the media and the democratic politicians were wrong."

Travel ban 3.0

The court seemed to tip its hand at oral arguments in April, when a majority of the justices appeared ready to side with Trump . The court was ruling on what was the third version of the ban, which Trump has complained is a "watered down" version.

The court allowed it to go into effect while the case was being litigated, but the lower courts had ruled that all three versions either violated federal law or were unconstitutional.

Like the earlier two bans, version 3.0 bars almost all travelers from five mainly Muslim countries — Iran, Syria, Yemen, Libya and Somalia — and added a ban on travelers from North Korea and government officials from Venezuela.

Families Divided: President Trump's Travel Ban Strands Some U.S. Citizens Abroad

Families Divided: President Trump's Travel Ban Strands Some U.S. Citizens Abroad

The court acceded broadly to presidential power. The majority opinion, written by Chief Justice John Roberts, noted that the INA exudes deference to the president. The executive order, he wrote, was more detailed than similar orders by Presidents Ronald Reagan and Jimmy Carter.

Roberts then deferred to the president's power. The only thing a president has to signal is that entry for people from various countries would be detrimental to the interest of the United States. The president undoubtedly fulfilled that requirement here, the court noted.

The president, Roberts said, has extraordinary power to express his opinions to the country, as well. The plaintiffs argued that Trump's past campaign and other statements about Muslims should be taken into account, but the majority said it is not the court's role to do that.

The chief justice did not dispute Trump's consistently anti-Muslim statements.

"The issue, however, is not whether to denounce the President's statements," Roberts said, "but the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself."

The upshot of the court's precedents is clear, he said. The court should not inhibit the president's flexibility in responding to changing world conditions, and any court inquiry into matters of into national security is highly constrained. As long as the president presents an explanation for the travel ban that is "plausibly related" to a legitimate national security objective, Roberts said, he is on firm constitutional ground.

Lipstick on a pig

Among national security experts across the political spectrum, the decision elicited distinct disappointment. John Bellinger, who served in a variety of national security positions in the George W. Bush administration after Sept. 11, called Tuesday's decision "unfortunate," but not surprising.

"It's still a pig," he said of the travel ban's current iteration, "but the administration has put just enough lipstick on it for it to look pretty for five of the nine justices."

Those Affected By Trump's Travel Ban Hope For End To 'Chaos' After Supreme Court Case

Those Affected By Trump's Travel Ban Hope For End To 'Chaos' After Supreme Court Case

And University of Chicago constitutional law scholar Aziz Huq said that because there was evidence in this case of a presidential bias against a single religious group, Tuesday's decision is different from court precedent.

"This is one of the very few instances in which there, in fact, was available evidence of bias," he said. "The decision today is one of the first in which it was open and notorious that the policy was launched on the basis of bias."

Because of that, he called the court's decision to uphold Trump's policy "a real shift in the law."

Impassioned dissent

The court's four liberal justices dissented in two separate opinions, with both Justices Stephen Breyer and Sonia Sotomayor delivering rare oral dissents from the bench.

Speaking with unusual passion, Sotomayor blasted the court's reasoning.

"The United States of America is a Nation built upon the promise of religious liberty," she opened in her dissent. "Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court's decision today fails to safeguard that fundamental principle."

What's more, Sotomayor said, the court's decision "leaves undisturbed a policy first advertised openly and unequivocally as a 'total and complete shutdown of Muslims entering the United States' because the policy now masquerades behind a façade of national-security concerns."

Why Dozens Of National Security Experts Have Come Out Against Trump's Travel Ban

Why Dozens Of National Security Experts Have Come Out Against Trump's Travel Ban

Comparing Tuesday's outcome with the court's decision, in 1944, to uphold the legality of Japanese-American internment camps, Sotomayor noted, "In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court's precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty."

She added that plaintiffs did have a case related to the Establishment Clause of the Constitution and blasted the majority for believing otherwise.

"The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens," Sotomayor added.

And while the court has a duty to be deferential to the president, she said, "Deference is different from unquestioning acceptance. Thus, what is 'far more problematic' in this case is the majority's apparent willingness to throw the Establishment Clause out the window and forgo any meaningful constitutional review at the mere mention of a national-security concern."

She then read a selection of anti-Muslim statements made by the president, admonishing the audience to "take a brief moment to let that sink in."

After reading her decision from the bench, she added, "History will not look kindly on the court's decision today — nor should it."

Reactions from both sides

Outside reaction to the ruling was swift.

David Cole, national legal director of the ACLU, called the decision "One of the court's historic failures to live up to its obligation to defend the rights of the most vulnerable from those that are the most powerful."

House Democratic leader Nancy Pelosi slammed the decision in a statement, saying, "The court failed today, and so the public is needed more than ever" to challenge officials who do not move to rescind the ban.

Pelosi added that the ban will actually backfire and serve as a "recruiting tool" for terrorists and invoked other recent controversial foreign policy moves by Trump.

"The President's disdain for our values and the safety of the American people has led him to undermine relationships with critical allies, embrace autocrats and dictators, launch damaging trade wars and sow fear in our communities with his hateful, ugly language," she said. "Whether tearing children from their parents at the border or advancing a ban founded on open bigotry, President Trump is making our nation less safe at home and less respected abroad."

Attorney General Jeff Sessions disagreed. "Today is a great victory for the safety and security of all Americans," he said in a statement. "Today's decision is critical to ensuring the continued authority of President Trump — and all future presidents — to protect the American people. We will continue to take and defend all lawful steps necessary to protect this great nation."

An anxious world

There are some puzzling aspects of the court's opinions. Most notably, Justice Anthony Kennedy filed one-and-a-half page concurring opinion. While Kennedy was the decisive fifth vote in Roberts's majority opinion, he wrote separately that there are numerous government actions that the judiciary cannot correct, but, in his view that does not mean that officials are free to disregard the Constitution and the rights it protects - including freedom of belief and expression. "An anxious world," he wrote, "must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts." The message of this concurrence remains unclear. Is it a warning to the Trump administration not to go too far? Or a Hamlet-like lament?

NPR's Annie Hollister contributed to this report.

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The impact of Trump’s Travel Ban 3.0 and Presidential Proclamation 9645

travel ban 3.0

By Marjan Kasra and Babak Hojjat

Circumstances surrounding President Trump’s travel ban have been very fluid since its inception as “Travel Ban 1.0” on Jan. 27, 2017. Under said ban, Trump restricted entry into the United States for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. As a result, many from those countries were refused entry into the United States and many were restricted from boarding planes at airports worldwide.

Due to the fact that the citizens of these countries are predominantly Muslim, said ban was coined the “Muslim ban.” There was virtually no guidance on it from the Department of Homeland Security (DHS) to Customs and Border Protection (CBP), making for an extremely chaotic situation at U.S. ports of entries. Following days of protests and rallies at airports nationwide, a ruling by a Seattle federal judge blocked Travel Ban 1.0, allowing visas to be restored.

TRAVEL BAN EVOLUTION 1.0 TO 3.0

Following the failure of Travel Ban 1.0, the Trump administration came up with a watered-down version 2.0 on June 29, 2017. Before the ban even went into effect, opponents filed emergency motions in Hawaii. This time, in order to enter the country, the Trump administration said foreign nationals must prove a relationship with a parent, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law or sibling in the U.S. Other members of the family, such as grandparents, were initially excluded. The 2.0 version said they were not a “bona fide” relation to the foreign national. Following lawsuits, they were later included.

After a series of defeats, in June of 2017 the administration had a win at last. The U.S. Supreme Court, right before it took its summer recess, lifted the hold on the ban which had been in place by federal judges in both Hawaii and Maryland. The Supreme Court’s ruling was unsigned by liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan). Conservative Justices Neil Gorsuch, Clarence Thomas and Samuel Alito contended that the president’s administration should be permitted to enforce the ban in all instances. This effectively allowed the Trump administration to disallow citizens of Sudan, Syria, Yemen, Iran, Libya and Somalia from entering the U.S. for 90 days. It also barred nearly all refugees from coming into the U.S. for 120 days.

In an attempt to make the ban more of a permanent feature within the fabric of our immigration laws, on Sept. 24, 2017, the administration issued Presidential Proclamation 9645 (no longer titled “Executive Order”). It placed restrictions on eight countries: Syria, Venezuela, Yemen, Chad, Iran, Libya, North Korea and Somalia. It also placed added security measures on Iraqi citizens. Both the Ninth Circuit (Hawaii plaintiffs) and Fourth Circuit (Maryland plaintiffs) issued injunctions against this so-called “Travel Ban 3.0,” which again rendered Trump’s ban ineffective. However, on Dec. 7, 2017, this time the Supreme Court granted the administration’s motions for an emergency stay of preliminary injunctions.

As such, President Trump’s most recent travel ban went into effect on Dec. 8, 2017, for the predominantly Muslim countries while the appeals were still pending in both Ninth and Fourth circuit courts.

PRESIDENTIAL PROCLAMATION 9645

The Presidential proclamation, while narrower in its scope, is still considered by many to be motivated by animus and is unconstitutional on many levels. On its face, the proclamation claims to allow for a “waiver” process for people who pose no threat to United States. According to the proclamation itself, the Department of State was to provide “guidance” to the public. To date, there has been no clear guidance by the department. The only “guidance” is a virtual reiteration of the proclamation itself (See AILA Doc. No. 17120830). Although the Trump proclamation claims a “case-by-case” waiver is available to the adversely affected nationals, there has been virtually a categorical denial of affected parties since its implementation on Dec. 8, 2017. Visa applicants are provided with a generic denial notice, stating that they have been found “ineligible for a visa under Section 212(f) of the Immigration and Nationality Act, pursuant to Presidential Proclamation 9645. Today’s decision cannot be appealed.”

Following this generic denial, one of two boxes is checked off. The first option states that “taking into account the provisions of the proclamation, a waiver will not be granted” and that the applicant may reapply later in time. Said box appears to be checked for virtually all non-immigrant visas (if said non-immigrant visa is not one of the few “exceptions” under the proclamation) and also for all diversity visa applicants. The second box is generally checked for majority of immigrant visa applicants, including family-based and EB-5 visa categories. Here, the intending immigrant is advised that the consular officer is reviewing the applicant for a waiver under the proclamation, and further reference is made to the proclamation text. Said rejection notice ends by emphasizing that the waiver process is a lengthy one, and that the applicant remains “refused under Section 212(f).”

Section 3(c) of Proclamation 9645 grants authority to consular and immigration officials to grant waivers on a “case-by-case basis” to an individual who would otherwise be subject to the proclamation’s entry ban if: Denying entry would cause the foreign national undue hardship; entry would not pose a threat to the national security or public safety of the U.S., and entry would be in the national interest.

THE VISA WAIVER PROCESS

Although a waiver process is supposed to be possible, it is unclear as to what standards of proof are being used to make this determination.

Through a bipartisan letter written on Jan. 31, 2018, Sens. Jeff Flake and Chris Van Hollen requested information about visas from the State Department. In their letter, the senators assert that there have been reports of “uniform denial of waivers for visas.” Additionally, the senators emphasize that U.S. Department of State has not given the public any conclusive guidance on waivers and has not provided standards of proof or qualifications for granting waiver eligibility.

Following the letter, the U.S. Department of State responded by issuing a startling letter on Feb. 22, 2018 addressed to Sen. Van Hollen. The State Department revealed that: “Of the 8,406 applications for nonimmigrant and immigrant visas, only two waivers were granted as of Feb. 15, 2018.” In order to gain an understanding of how many individuals are adversely affected, one must review the Department of State’s Report of the Visa Office from 2017 (Department of State, Report of the Visa Office 2017, tbls XIV, XVIII). According to said State Department report, in 2016 alone, 73,500 visas were issued to the same nationals of the affected countries, which translates to an average of 6,125 visas per month. This number is now down to two over a span of time from Dec. 8, 2017 to Feb. 15, 2018.

According to the statistics as revealed by the letter addressed to Sen. Van Hollen, there appears to be an unprecedented denial rate of 99.9 percent as of Feb. 15, 2018.

Affected Applicant Statistics as per Department of State from December 8, 2017 to January 8, 2018, with rate of Approved Waivers through February 15, 2018.

Kasra article

Of importance is that the senators in their April 19, 2018 letter point out inconsistencies with State Department’s reporting of actual approved waivers; as stated above, the State Department reported only two approved waivers as of February 15, 2018 by their letter dated February 22, 2018 to Senators Van Hollen and Flake. However, in a later interview less than two weeks later with Reuters, State Department asserted that they had issued “around 100 waivers.” Therefore, the senators have asked for more comprehensive, complete and accurate statistics from the State Department by April 30, 2018.

As the legal community anxiously awaits updated statistics from the State Department, we should bear in mind that even if there were 450 waiver approvals as of April 19, 2018, if we consider the rate of applicants to be similar to those from 2016, for a period of 4-5 months, we project the total number of applicants to be well over 20,000 individuals from the affected countries. Therefore the rate of individuals entering United States from the affected countries appear to hover around 1-3 percent. On April 10, 2018, Chad was taken off of the list of countries under Travel Ban 3.0 as it has “improved its identity-management and information sharing practices” according to White House press secretary Sarah Huckabee Sanders.

However, it is widely believed that the travel ban is discriminatory in nature, fueled by animus from Trump’s administration. Said animus has resulted in marginalization of a group of minorities, a majority of whom are Muslims. The arguments used by opponents of the travel ban at the appellate and Supreme Court levels allege violations of the Establishment Clause, Equal Protection Clause, Due Process Clause and Administrative Procedure Act.

In contrast to the long-standing U.S. visa program rules and regulations in place through INA and FAM, there is no requirement that applicants who are denied Section 3(c) waivers be advised of the reason for the denial. And unlike the visa program, there are no supervisory reviews or procedures to seek reconsideration. Furthermore, immigration practitioners are discovering that the intending immigrants are often not advised of the possibility that a waiver may be available to them. In fact, different visa applicants under identical circumstances are often treated differently at U.S. consular posts, in that some are advised that a waiver process is “available” to them, while others receive the 212(f) rejection where the first box is checked, indicating they are denied and no waiver is available. Therefore, the waiver process appears to be vague, ad hoc and subjective in nature. Oftentimes, the lawyers of represented applicants are given little or no feedback, other than parroting the language of the proclamation.

Given the DOS statistics as revealed by the letter to Sen. Van Hollen, any grant of waivers under Section 3(c) of the proclamation have been illusory at best. The provisions of the proclamation and lack of clear, objective guidance from Department of State sets our country back to the 1920s. Looking back at the Immigration Act of 1924, also called the National Origins Act and Asian Exclusion Act, it involved nationality-based allocations with the ultimate goal of reducing the number of non-whites. It targeted Asians, southern and eastern Europeans (especially Italians), Slavs and eastern European Jews. This was meant to “preserve the ideal of American homogeneity.” The act was abolished by President Johnson in 1965 when he signed into law the Immigration and Nationality Act, . While standing near the Statue of Liberty, he commented that “a very deep and painful flaw in the fabric of American justice” was being corrected.

The Supreme Court held hearings on Travel Ban 3.0 in April this year. As of print time, a decision is still to come. In April, the Trump administration also removed Chad from its list of restricted countries. The consensus within the legal community is that the court, in all likelihood, will resist making a merits-based determination of the travel ban. It is now within the court’s power to determine whether the judiciary will defer to the Executive Branch as the branch asserts its role in national security matters, regardless of a perceive animus in intent. That balancing act hangs the fate of millions of people who are from predominantly Muslim nations.

Marjan Kasra

Marjan Kasra

The Law Offices of Marjan Kasra, LLC is an international law firm headquartered in Stamford, Connecticut. Kasra is the founder and managing attorney of the firm. She obtained her juris doctor degree in 1999 and earned her B.S. in biology and psychology from the University of Connecticut, followed by a two-year post-baccalaureate program at Columbia University. The office is a leading expert in U.S. immigration and specializes in the EB-5 and E-2 investor visa categories. With offices in Stamford, New York and Dubai, Kasra and her team specialize in customizing programs for Middle Eastern clientele.

DISCLAIMER: The views expressed in this article are solely the views of the author and do not necessarily represent the views of the publisher, its employees. or its affiliates. The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public; do not include confidential information in your question.

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Travel Ban 3.0 Heads to the Supreme Court: Win or Lose the Battle, the Resistance is Winning the War

Travel Ban 3.0 Heads to the Supreme Court: <span class="subtitle">Win or Lose the Battle, the Resistance is Winning the War</span>

Just days after his inauguration last year, Donald Trump took action to fulfill his campaign promise of “a total and complete shutdown of Muslims entering the United States.” He issued an executive order barring nationals of seven overwhelmingly Muslim countries from entering the United States, excluding refugees, and calling for a review of entry policies in order to put in place what Trump called “extreme vetting.” Numerous lawsuits and two superseding versions of the original version of the Travel Ban later, the US Supreme Court may be poised to vindicate Trump’s policy. Last week, the Court granted review of a Ninth Circuit decision invalidating Travel Ban 3.0 .

Yet things are not always what they seem. The government deserves to lose its case in the Supreme Court, but even if it wins, that will not vindicate Trump’s cruel and Islamophobic immigration policy. The early victories for plaintiffs who sued Trump won important delays; they forced the administration to go back to the drawing board to moderate the policy on multiple occasions; and they exposed the administration’s fundamental cruelty, mendacity, and incompetence.

The Scene a Year Ago

Travel Ban 1.0 unleashed immediate chaos. The administration rolled it out without any grace period and with crucial ambiguities, such as whether it barred admission to the country of permanent residents or people with other valid visas. Government personnel barred formal entry into the country of people disembarking at airports, including parents coming for crucial medical treatment for their young children.

As word spread of the chaotic implementation of the cruel order, resistance galvanized. Cabdrivers in New York City—many of them foreign nationals themselves—boycotted international arrivals in solidarity with the detained travelers. Volunteer lawyers, both under the auspices of nonprofit organizations and acting on their own, sped to the airports to lend assistance. Clients were signed up and lawsuits filed. Court victories followed quickly.

After suffering an initial round of defeats, Trump blustered about how he would eventually prevail in the Supreme Court, but in fact he backed down. Travel Ban 2.0 superseded Ban 1.0 in March of last year, but it too was enjoined. Although the government succeeded in having the scope of the injunction cut back somewhat, Ban 2.0 expired by its own terms before the Supreme Court could adjudicate it on the merits. Travel Ban 3.0 was issued last September.

The precise details of the various lawsuits and opinions granting full or partial relief have differed, but three core arguments have framed the litigation over the course of the last year: (1) the president lacked statutory authority to adopt each version of the Travel Ban; (2) the ordinary deference to which the political branches are entitled in matters of immigration does not suffice to justify the Travel Ban, because it so clearly does not seriously advance an interest in national security; and (3) in any event, the administration should not receive such deference, because, as revealed by Trump’s own statements and tweets, the Travel Ban is a thinly disguised effort to keep as many Muslims as possible out of the country, thus violating the First Amendment’s Establishment Clause and other constitutional principles forbidding religious discrimination.

In addition to adjudicating those questions, the courts have grappled with the scope of their authority to grant relief benefiting non-citizens outside the United States. And the government has objected that a single district judge should not be allowed to grant a nationwide injunction. All of these issues will be up for decision when the Supreme Court considers the validity of Travel Ban 3.0.

How should the Court decide the case? In my view, the government should lose on both statutory and constitutional grounds. To be sure, the government did some homework before enacting Travel Ban 3.0, reviewing the screening policies of various countries before branding them unsafe. But courts should not grade on a curve.

For the reasons given by the Ninth Circuit, even Travel Ban 3.0 attempts to exercise power that neither Congress nor the Constitution vested in the president. And as I explained when Trump issued Ban 3.0, it is fatally tainted by his invidious intentions. If there were a truly compelling national security reason for Ban 3.0, that might break the link between Trump’s anti-Muslim bias and the policy’s text, but all of the circumstances of the Ban’s enactment and evolution over time indicate that it remains the lineal descendant of candidate Trump’s Muslim ban.

Victory Already Won

Nonetheless, there remains a substantial possibility that the Supreme Court will uphold Travel Ban 3.0. By voiding interim relief previously granted by the Ninth Circuit, a majority of justices have already indicated that they may be inclined to uphold the government’s authority. The Court might even rule for the government without reaching the merits on the ground—advanced in the government’s petition—that the case is not justiciable. I think that argument is also wrong, but it is undeniable that prior precedents carve out a relatively narrow role for the courts in immigration matters.

Yet even if the government wins the final round in the Supreme Court, the litigation challenging the Travel Ban should be regarded as a success.

For months, the Travel Ban was prevented from going into full effect. During that time, thousands of foreign nationals whom Trump sought to exclude were able to come here to start or continue their education, obtain needed medical care, reunite with family, and start new lives in a land whose bigoted leader stubbornly chooses not to requite their love for their new country. Each of these entries was a blow for justice and decency over stupid hatred.

Moreover, the initial victories moderated the Trump policy somewhat. The move from Travel Ban 1.0 to Ban 2.0 resulted in the removal of Iraqi nationals from the no-entry list—an important accommodation for the Iraqis who risked their lives to aid US troops. Before promulgating Travel Ban 3.0, the government reverted to some semblance of normal intra-government consultation and review. To repeat, these steps should not suffice to legalize Ban 3.0, but the fact that we have come this far already counts as a substantial victory over Trump’s effort to rule by diktat.

Perhaps most importantly, the Travel Ban solidified the accurate perception of the Trump administration as racist, dishonest, cruel, incompetent, and lawless. After Trump’s surprise Electoral College victory, some people who did not support him during the campaign held out hope that perhaps his bark would prove worse than his bite, that faced with the task of governing, Trump would abandon demagoguery for statesmanship.

The Travel Ban demonstrated that such hopes were in vain. It combined all of Trump’s worst characteristics.

Trump’s own surrogate, Rudy Giuliani, admitted that the ban was an effort to disguise the Muslim ban as something else.

When Ban 1.0 was enjoined, Trump peevishly called the man who issued the ruling—an appointee of President George W. Bush who was unanimously confirmed by the Senate—a “so-called judge.” Confirming that attacks on the independent judiciary are not just a slip of the thumb by the Tweeter in Chief but administration policy, Attorney General Jeff Sessions later marveled that a judge “sitting on an island in the Pacific” had the power to invalidate Ban 2.0. He thereby disrespected not just the separation of powers but the entire state of Hawaii.

Meanwhile, the mismatch between the countries targeted by each version of the Travel Ban and national security is arresting. Why wasn’t Saudi Arabia, the source of most of the 9/11 hijackers, on any version of the list? Why do the lists target nationals of the countries in question, even people who have not lived there for decades? Why was Travel Ban 1.0 rushed into effect without input from the relevant professionals? All of these flaws revealed that Trump cared more about exciting his political base than protecting the country from actual security threats.

If the Supreme Court allows Travel Ban 3.0 to remain in effect, Donald Trump will no doubt boast that he was right all along. But no one should be fooled. The Travel Ban saga makes clear that after a year in office, Trump remains every ounce the same vile and petty would-be tyrant that he appeared on the campaign trail.

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Tags: Legal , SCOTUS , Travel

5 responses to “Travel Ban 3.0 Heads to the Supreme Court: Win or Lose the Battle, the Resistance is Winning the War ”

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Says another ignorant sore losing Hillary supporting professor that puts Americans last.

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“Trump’s cruel and Islamophobic immigration policy.” What is cruel about wanting to enforce our laws, & keep us safe? The policy was based on the fact that we have had attacks from muslim extremists(from these countries), who hate our way of life. Most do not want to assimilate, they only want to force us to accept their false religion, & Sharia law. Which is incompatible with our laws, and what this country stands for. Many of them cannot be properly vetted, but we are suppose to accept them, anyway? This makes no sense. Many of the leaders of the countries(& their people), have publicly stated they want to harm us. It’s bad enough that the democrats hate this country, and now they want to bring in more people to help destroy us, from within. Our tax dollars should certainly not be used to help support anyone who is not a citizen. We have citizens, veterans & the poor, who need & deserve our help, above & beyond anyone else. We should be concerned with them, first. The left is only concerned about bringing in more people to support their party, since they know their support is waning. That is also the reason they allow illegal aliens into this country.

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another so called professor who is attempting to put opinion and not facts into an article to try to appear relevant.

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This case exposed the willingness of certain judge to use raw judicial power in the pursuit of political ends. Their over-reach has eroded their credibility of the courts.

The silver lining is that Trump learned a harsh lesson about the dangers of politicized judges that will inform his his selection of judicial nominees.

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All this said despite the Supreme Court’s repeated rulings that the travel ban is a legal exercis by the President which, despite Mr. Dorf’s baseless partisan rhetoric, is obviously an effort to keep Americans (including Mr. Dorf) safe from terrorists. It’s a shame when some folks like Mr. Dorf resort to baseless name-calling, although it is a clear sign that facts and policy are not on his side. And as for denigrating the judiciary, Barack Obama takes the cake when he dismissed the Supreme Court during a State of the Union address simply because he didn’t like one of their rulings.

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Travel Ban 3.0: Legalese Cannot Mask a Harsh and Misguided Policy

  • September 29, 2017

Travel Ban 3.0: Legalese Cannot Mask a Harsh and Misguided Policy Raquel Aldana, Associate Vice Chancellor for Academic Diversity and Professor of Law, UC Davis

On Sunday September 24, 2017, while President Trump artfully distracted the nation by feuding with NFL football players over their First Amendment right to protest racial injustice in the United States, the White House released a Presidential Proclamation Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorist or Other Public-Safety Threats. This new travel ban (“travel ban 3.0”) replaces the previously revised travel ban issued March 6 ( Executive Order 1380 ; Protecting the Nation from Foreign Terrorist Entry into the United States), which was due to expire that same night. Travel ban 3.0 has not received as much media attention or public consternation as the original travel ban. However, its harms, which are now indefinite, remain largely unchanged for five of the six predominantly Muslim nations included in the original travel ban (Iran, Libya, Syria, Somalia, and Yemen) while three new nations (Chad, North Korea, and Venezuela) are added to the list.

On its surface, travel ban 3.0 appears to draw careful distinctions in the degrees of travel restrictions imposed on each of the eight nations based on alleged differences in the security risks presented by each. However, with the exception of Venezuela, the most important fact is that travel ban 3.0 indefinitely bars nationals from all of the seven remaining nations from permanent immigration into the United States. No careful “tailoring” as the government claims, can hide this harsh reality. Moreover, six of the targeted nations (Iran, Chad, Libya, Syria, Somalia, and Yemen) are predominantly Muslim. Not unlike the previous two travel bans, travel ban 3.0 hurts predominantly Muslim U.S. families, Muslim refugees, and the entire U.S. economy with highly questionable national security gains.

Permanent immigration into the United States occurs largely for three primary reasons: to promote family unification between foreigners and U.S. citizens or lawful permanent residents, to recruit workers that Congress deems contribute to the U.S. economy, and to provide protection from persecution to refugees and asylum seekers. In 2015, the last year for which the government has provided official data on permanent immigration into the United States, over 20,000 permanent immigrants from these seven nations (the largest numbers from Iran, Syria, and Yemen) arrived in the United States to unify with spouses, children, parents or siblings, to begin gainful employment, often after completing programs of study in the United States, or to escape horrific repression. [1] Moreover, as of 2012, nearly 800,000 persons living in the United States come from countries affected by the ban, representing 2% of all foreign-born immigrants in the country. [2] With travel ban 3.0, potentially hundreds of thousands of U.S. families, some who have waited in backlogged immigration lines for years, confront the possibility of an indefinite separation from their loved ones. Moreover, in violation of our moral obligation and international and domestic legal commitments, under travel ban 3.0, the United States turns its back indefinitely on tens of thousands more refugees.

Travel ban 3.0 did ease some of the previously imposed travel bans in puzzling ways. Only two of the eight nations, North Korea and Syria, face an indefinite bar for both permanent and temporary immigration to the United States. Venezuela is a unique case because the ban on travel applies only to certain government officials. Somalia is also a unique case because temporary immigration is not suspended but rather subjected to additional scrutiny. For the remaining nations, the odd tailoring of restrictions or exceptions to the restrictions will largely mean that some temporary migration will be allowed to come in from each of these countries except for temporary visitors on business or as tourists. For Iran, the ban on temporary migration is even broader exempting only student categories. This begs the obvious question as to why the Trump administration considers it possible to contain the purported national security risks of travel for temporary migrants, who usually come to the United States in much greater numbers than permanent immigrants, while imposing more extreme measures to permanent immigration.

Universities across the country may view as positive that travel ban 3.0 lifts the student visa restrictions on most of the countries affected in the prior travel ban, including Iran. Students from North Korea and Syria, however, are indefinitely banned as students, while Somali students could still face undue restrictions. More importantly, however, travel ban 3.0 leaves intact the barriers that would significantly deter many foreign students, not only those who come from the nations directly affected, from choosing to study in the United States. Already, students from Chad, Libya, and Yemen are indefinitely banned from seeking permanent legal employment in the United States once they finish their studies while students from Iran are indefinitely banned from both temporary and permanent lawful employment in the United States. This significantly reduces the economic incentives for these students to choose their studies in the United States and it robs us of the opportunity to reap the benefits of a U.S. educated workforce. More importantly, the ban signals to these foreign students that they are considered security risks to our nation and are not wanted. Why should foreign students spend tens of thousands of dollars to study in a nation hostile to them and their contributions? Who among them is going to be targeted next?

More than a million international students currently study on U.S. college campuses, contributing nearly $36 billion to the U.S. economy. [3] From the targeted countries, Iran and Venezuela feature among the top 25 sending nations, and together comprise more than 20,000 students nationwide. [4] At UC Davis, our student population from the affected nations is fewer than 100, with the largest share comprised of students from Iran. These students are feeling targeted, isolated, and scapegoated. Each one of them, however, is a valuable member of our community. Their presence on this campus makes us a better university and enhances our understanding of shared or even different values, culture, religion, and ideas. Our shared spaces allow us to grow in respect for one another. U.C. Davis students and scholars affected by travel ban 3.0 can find support at UC Davis Services for International Students and Scholars . UC Davis remains committed to supporting and welcoming students and scholars regardless of citizenship or place of birth.

Travel ban 3.0 may have both delayed and muddled the legal challenges to the prior travel bans but it should not alter our moral indignation against the policies. The legal challenges to the prior travel bans relied on President Trump’s virulent anti-Muslim rhetoric to make a compelling case of the religious animus motivating the ban. The inclusion of Venezuela and North Korea in travel ban 3.0 could make this claim harder, particularly when immigration law’s exceptionalism already grants the President wide discretion to violate fundamental rights even of U.S. citizens directly affected by the ban (e.g., those who can assert a “bona fide” relationship to nationals from the banned countries). Law, however, cannot always provide the right answers. We must also be guided by our values, our humanity, and our common sense. Travel ban 3.0 remains essentially an anti-Muslim prohibition. It must also be understood in the context of a broader anti-immigrant agenda, which also targets other communities of color. This includes the recent immigration raids, DACA’s rescission, cuts in refugee admissions, and legislative proposals like the RAISE ACT which proposes major cuts to family immigration, which predominantly originates from Mexico, China, India and the Philippines. The national security justification for the ban has great appeal, but it is misguided. Since September 11, 2001, a vast majority of the perpetrators of terrorist attacks came from countries not listed in the ban, and many were born in the United States. [5] Security experts particularly puzzle over Chad’s inclusion since Chad has been an ally in the fight against terrorism. [6] Careful consideration must be given to how and whether immigration controls are necessary to improve U.S. security. However, indiscriminate immigration bans against entire nations are unlikely to make our nation safer. They will certainly, however, make us a less diverse and inclusive nation.

[1] Department of Homeland Security, 2015 Yearbook of Immigration Statistics, Table 10: Persons Obtaining Lawful Permanent Resident Status By Broad Class of Admission and Region and Country of Birth.

[2] Mona Chalabi, “How many US immigrants come from Trump’s seven banned countries?” The Guardian (28 January 2017); Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, “Immigrants from Banned Nations: Educated, Mostly Citizens and Found in Every State,” New York Times (30 January 2017).

[3] Karin Fischer, “International Students Dodge Trump’s Partly Reinstated Travel Ban, but Concerns Persist,” Chronicle of Higher Education (26 June 2017).

[5] Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, “Immigrants From Banned Nations: Educated, Mostly Citizens and Found in Every State,” New York Times (30 January 2017).

[6] Helene Cooper, Michael D. Shear and Dionne Searcey, “Chad’s Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say,” New York Times (26 September 2017).

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travel ban 3.0

By  Presidential Proclamation , dated January 31, 2020 and effective on February 2, 2020 at 5pm EST, the United States is suspending the entry of “foreign nationals who pose a risk of transmitting the 2019 novel coronavirus.” As a result, foreign nationals (of any nationality), other than immediate family of U.S. citizens, permanent residents and certain others, who have been residing in or traveled to Mainland China during the 14-day period preceding their request for admission to the United States will be denied entry. Also, on January 31, 2020, President Trump issued another  Proclamation  expanding the ongoing travel ban, pursuant to Executive Order 13780 of March 6, 2017,  Protecting the Nation from Foreign Terrorist Entry Into the United States  (Travel Ban 3.0), to include certain foreign nationals of the following six countries: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.

Novel Coronavirus Entry Ban

Per this Presidential Proclamation entitled,  Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus , the entry into the United States, of all foreign nationals (as immigrants or nonimmigrants) who were physically present within the People’s Republic of China,  excluding Hong Kong and Macau , during the 14-day period preceding their entry or attempted entry into the United States is hereby suspended. The following categories of individuals are exempted from this temporary entry ban:

S. permanent residents (Lawful Permanent Residents or “green card” holders);

The spouse of a U.S. citizen or permanent resident;

The parent or legal guardian of a U.S. citizen or permanent resident, if the U.S. citizen or permanent resident is unmarried and under the age of 21;

The sibling of a U.S. citizen or permanent resident, provided that both are unmarried and under the age of 21;

The child, foster child, or ward of a U.S. citizen or permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

A foreign national traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the virus;

Nonimmigrant crewmembers;

Foreign nationals seeking entry or transiting the United States under an A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1 through NATO-4 or NATO-6 visa;

A foreign national whose entry would not pose a significant risk of transmitting the virus, as determined by the Centers for Disease Control;

A foreign national whose entry would further important United States law enforcement objectives; and

A foreign national whose entry would be in the national interest.

This entry ban is to remain in effect until terminated by Presidential order.

The US Embassy and Consulates in Mainland China have  announced  all operations will be closed to the public from February 3-7, other than emergency services for U.S. citizens. The Embassy also announced the cancellation of all immigrant and nonimmigrant visa appointments scheduled for the week of February 3rd. At this time, the Embassy is not providing a specific date for the resumption of routine visa services.

In addition, the Secretary of Health and Human Services  announced  during a White House press briefing, that any U.S. citizen (and presumably the exempt individuals listed above) returning to the United States who has been in the Hubei Province (Mainland China) in the previous 14 days will be subject to mandatory quarantine of up to 14 days. Furthermore, any U.S. citizen (or exempt individual) returning to the United States who has been in other parts of mainland China within the previous 14 days will undergo proactive entry health screening at a select ports of entry and up to 14 days of monitored self-quarantine.

Expansion of Travel Ban 3.0

As indicated above, the President expanded his Travel Ban 3.0 (Executive Order 13780 of March 6, 2017,  Protecting the Nation from Foreign Terrorist Entry Into the United States) , to include certain foreign nationals of Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. This expansion comes after the United States Supreme Court  upheld  the Travel Ban on June 26, 2018. This expansion will take effect on February 21, 2020 and the restrictions will be limited to those seeking immigrant visas (“green cards”) from the newly added countries. Once this expansion takes effect, the Travel Ban 3.0 will apply to the following nationalities banning entry of immigrants and/or nonimmigrants as follows:

Eritrea :                Immigrants, except as Special Immigrants who have provided assistance to the U.S. government.

Kyrgyzstan :        Immigrants, except Special Immigrants who have provided assistance to the U.S. government.

Iran :                      Immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they are subject to enhanced screening.

Libya :                   Immigrants and temporary visitors on business or tourist visas (B-1/B-2).

Myanmar :          Immigrants, except Special Immigrants who have provided assistance to the U.S. government.

Nigeria :               Immigrants, except Special Immigrants who have provided assistance to the U.S. government.

North Korea :     Immigrants and nonimmigrants.

Somalia :              Immigrants and requires enhanced screening of all nonimmigrants.

Sudan :                  Diversity Visa  immigrants (but not other immigrant categories).

Syria :                    Immigrants and nonimmigrants.

Tanzania :           Diversity Visa immigrants (but not other immigrant categories).

Venezuela :         Certain government officials and their family members on business or tourist visas (B-1/B-2).

Yemen :                Immigrants and temporary visitors on business or tourist visas (B-1/B-2).

The following individuals will continue to be exempt from Travel Ban 3.0:

Permanent residents;

Foreign nationals admitted to or paroled into the United States on or after the applicable effective date;

Foreign nationals who have a document other than a visa such as a transportation letter, boarding foil, advance parole document that is valid on the applicable effective date or issued on any date thereafter;

Dual nationals of a designated country who are traveling on a passport issued by a non-designated country;

Foreign nationals traveling on a diplomatic visas, NATO visas, C-2/U.N. visas, or G-1, G2, G-3, or G-4 visa; or

Foreign nationals granted asylum in the United States; refugees already admitted to the United States; or individuals granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The Travel Ban will also continue to permit affected individuals to seek discretionary waivers on a case-by-case basis. Immigration Authorities may grant waivers if the individual satisfactorily demonstrates that:

Denying entry would cause undue hardship;

Entry would not pose a threat to United States national security or public safety; and

Entry would be in the United States national interest.

Circumstances where a waiver may be appropriate include foreign nationals previously admitted to the United States for work or study where the denial of reentry would impair that activity. Waivers issued by Consular Officers will be effective for both the issuance of a visa and any subsequent entry on that visa.

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The below submission is presented by five organizations across the United States (“U.S.”): Asian Americans Advancing Justice- Asian Law Caucus, [i] Center for Constitutional Rights, [ii] Council on American-Islamic Relations-San Francisco Bay Area, [iii] Iranian American Bar Association, [iv] and the National Immigration Law Center. [v]

 II. Issue Summary

The U.S. and the international community is grappling with the discriminatory and devastating impacts of Presidential Proclamation 9645 (also described as “Muslim Ban 3.0” or “Travel Ban 3.0” or the “Proclamation”), which was the third attempt to deliver on then-candidate Trump’s call for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” [vi]  As described in detail below in Section V, Muslim Ban 3.0 indefinitely suspends the issuance of the vast majority of immigrant and non-immigrant visas to all nationals from five Muslim-majority countries.

The impacts of Muslim Ban 3.0 go far beyond travel restrictions. Solely based on religion or national origin, Muslim Ban 3.0 has indefinitely separated families, disrupted educational and academic pursuits, kept individuals from life-saving medical treatment, harmed the U.S. and world economies, stigmatized migrants, and stoked the flames of hate. 

Muslim Ban 3.0 is in clear violation of the U.S.’s international human rights obligations because of the undeniable discrimination based on race, religion, and national origin, as well as the devastating impacts of family separation.

III. Prior Concluding Observations 

In light of the fact that Muslim Ban 3.0 was not proposed or in effect during the last periodic review of U.S. compliance with its obligations under the International Covenant on Civil and Political Rights (“ICCPR”), this issue has not been addressed in any prior reports, nor have there been any prior recommendations by the Committee on this issue specifically. However, several of the Committee’s general comments (discussed in Section VI) discuss at length the importance of the rights implicated by this issue.

IV. Legal Framework 

Several Articles enshrined in the ICCPR relate directly to this issue: 

Article 2(1): each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 

Article 18: everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 

Article 23(1): the family is the natural and fundamental group unit of society and the State. 

Article 26: all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 

Article 27: in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

V. Current U.S. Government Policy or Practice 

On September 24, 2017, U.S. President Trump issued Presidential Proclamation 9645, [vii] “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” (“Muslim Ban 3.0” or “Travel Ban 3.0” or the “Proclamation”). The Proclamation is the third iteration of what has come to be called the “Muslim Ban” or “Travel Ban.” The first, issued within days of Trump taking office, was hastily rolled out, and provided little guidance to implementing agencies and on-the-ground officials. Chaos immediately ensued at the nation’s airports. It was almost immediately halted by multiple federal courts, finding that challenges to the constitutionality of the Muslim Ban would likely succeed due to evidence of its being driven by anti-Muslim animus and national origin discrimination. A second iteration was similarly stayed by federal courts for the same reasons. The third iteration, the Proclamation, has been in effect since December 2017, when the U.S. Supreme Court granted the Trump administration’s request to allow the Proclamation to take full effect while the case is being litigated. As described below, the Supreme Court upheld the Proclamation in June 2018. 

The Proclamation indefinitely suspends the issuance of the vast majority of visas sought by individuals from Iran, Libya, North Korea, Somalia, Syria, Yemen, and Venezuela. It applies to individuals who (1) were outside of the U.S. on October 10, 2017; (2) did not have a valid visa on that date, or (3) have not obtained a waiver (described below).  Additionally, there are some country-by-country exemptions: 

Although the Proclamation included two non-Muslim majority countries, Venezuela and North Korea, their addition had nearly no impact on the number of those affected by the Proclamation. The restrictions against Venezuela were limited to only specific government officials and their families. Similarly, immigration from North Korea to the U.S. is nearly non-existent. By contrast, the Proclamation categorically bars all immigrant visas for individuals from the Muslim-majority countries. As a result, the Proclamation disproportionately discriminates against Muslims and individuals from Muslim-majority countries. 

The only hope for a visa for affected individuals is under what the Proclamation refers to as the case-by-case “waiver” process; a waiver is supposed to function as an exception allowing the visa to be issued for otherwise banned individuals. The burden is on the applicant to demonstrate that they satisfy the following three criteria: (1) denying them entry to the U.S. would cause them undue hardship; (2) their entry would not pose a threat to the national security of the United States; and (3) their entry would be in the national interest of the U.S.  

Seemingly, thousands of families and applicant should be able to satisfy these broad requirements. However, the waiver process has been elusive, opaque, and arbitrary. Initial data released in February 2018 by the U.S. Department of State (“DOS”) to Senator Van Hollen showed that between December 08, 2017 and February 15, 2015 all but two (2) individual visas out of 6,555 had been denied, reflecting a 99.97 percent rejection rate. [viii] Subsequent data provided by DOS to Senator Van Hollen over the next several months showed that approximately 2 percent of waivers are being granted; still reflecting nearly 98 percent that are either pending or denied. Despite the government’s ongoing representations that nationals of the listed countries were “not banned” because they could obtain a visa through the waiver process, implementation of Proclamation and the data released confirms that it is designed to reject and ban as many individuals as possible. Indeed, a former U.S. government consular officer has stated that “[t]he waiver process is a superficial and wasteful bureaucratic exercise designed to hide the true intent of the travel ban: to keep an arbitrary group of Muslim travelers and immigrants from ever reaching the shores of the United States.” [ix] At least two federal class action lawsuits currently challenge the unlawful implementation of the Proclamation and several U.S. congressional representatives have proposed policies calling for accountability on the so-called waiver process.   

The resulting impact of the Proclamation on U.S. citizens and lawful permanent residents (“LPRs” or “green card holders”), as well as their families abroad, goes far beyond travel restrictions. Solely based on national origin and religious discrimination, families are facing indefinite separation [x] and are unable to practice their faith together or in their communities, and in many cases, are stranded in conflict zones, forced to spend their life savings, awaiting reunification.   

  • John Doe #2, a plaintiff in one of the lawsuits challenging the unlawful implementation of the Proclamation, is a U.S. citizen of Yemeni origin. He and his two U.S. citizen daughters, aged seven and eleven, have been separated from his wife, and their mother, since 2016. During her interview with the U.S. consulate in Djibouti in December 2017 shortly after the Proclamation went into effect, the consular officer told her she is ineligible for a visa and denied her waiver. Although the consulate is now reconsidering her waiver, it has been over a year since her interview and she remains in Djibouti, stranded from her family and unable to return to war-torn Yemen. The family is confused, anxious, and heartbroken. They have missed practicing their faith together including celebrating Eid (an important Muslim holiday marking the end of Ramadan). John Doe #2 is also in anguish over caring for his two U.S. citizen daughters without their mother’s care.  
  • Mania is a U.S. citizen who petitioned for her father in Iran to visit after her mother died of cancer and her brother was diagnosed with cancer as well. Her father’s case was still pending when his son (her brother) passed away. Mania had no mechanism to demonstrate that her father met the criteria for a waiver. After an additional nine months of delay, Mania could no longer risk waiting to see her father. She missed work and visited her depressed father in Iran. Nearly one month after her visit, her father passed away. One month following his death, his waiver request and visa was refused. Her case is one of several where family members have died while trying to navigate the visa and waiver process.  
  • Hussain, a U.S. citizen, traveled to Yemen in 2015 after the war broke out to help his wife Sawsan and his three U.S. citizen children escape the dangerous conditions in the country. He also petitioned for a visa for his wife, and the family made the long and arduous journey to Djibouti for an interview with the U.S. Consulate. At the interview, his wife was told that she would be granted a visa. A few months later, however, she was informed that she was denied a visa pursuant to the Presidential Proclamation. Devastated, the family couldn't return to war-torn Yemen, and could not leave Sawsan behind by herself in Djibouti. The family was stranded in Djibouti for over a year, and had to spend all of their savings, accumulating significant debt. Sawsan suffered from severe diabetes and the children similarly developed medical complications, all exacerbated by their living conditions in Djibouti. It wasn't until they filed a lawsuit and received significant public media attention that Sawsan was finally granted a visa.

On June 26, 2018 the U.S. Supreme Court issued a controversial 5-4 decision in Trump v. Hawaii , upholding Muslim Ban 3.0. In a troubling endorsement of executive overreach, the majority found that the Proclamation did not exceed the president's statutory power. However, in her dissenting opinion, Justice Sotomayor, joined by Justice Ginsburg, found that the Muslim Ban was clearly motivated by unconstitutional animus. [xi] Justice Sotomayor states that “the full record paints a far more harrowing  picture,  from  which  a  reasonable  observer  would  readily  conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.” [xii] Moreover, she drew parallels to the U.S. Supreme Court’s 1944 Korematsu v. United States decision, which upheld the legality of Executive Order 9066 and the incarceration of over 120,000 Japanese Americans in internment camps during WWII. Finally, in his dissenting opinion, Justice Breyer, joined by Justice Kagan, flagged concerns with the waiver process, and added that by excluding individuals who are not detrimental to the U.S., the U.S. government’s national security justifications for the sweeping order are significantly weakened. [xiii]

VI. Human Rights Committee General Comments 

General Comment No. 18, [xiv] along with General Comment No. 31, [xv] discusses the importance of Article 2, specifically it’s nondiscrimination provision, Article 2(1), in ensuring that the rights of all individuals within the territory and/or jurisdiction of the State are protected and guaranteed by the State, regardless of an individual’s race, religion, political or other opinion, national or social origin (to name a few), rights which are undeniably violated by the Proclamation’s discriminatory intent and effect on Muslims and nationals from Muslim-majority countries. 

General Comment No. 22 to Article 18 requires States to guarantee and protect the freedoms of thought, conscience, and religion and prohibits States from limiting these in any way, even in the case of a public emergency. [xvi] Particularly, it states that the Committee views unfavorably any discrimination against any religion for any reason, which unquestionably encompasses the Proclamation at issue because it directly and specifically targets individuals who are Muslim and nationals from Muslim-majority countries. 

General Comment No. 19 to Article 23 discusses the importance of the family and the obligation of the State to ensure that the rights of families are not discriminated against. [xvii] Specifically, it requires the State to ensure the unity and reunification of families when they are separated, a right that the Proclamation unarguably violates by refusing immigrant and non-immigrant visas to family members of U.S. citizens and LPRs. 

General Comment No. 18, in relation to Article 26, and in combination with Article 2(1), prohibits the State from discriminating against individuals because of their race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [xviii] In particular, it states that nondiscrimination includes the basic principles of both equality before the law and equal protection of the law; principles that the Proclamation clearly violates with its unequal and disparate treatment of Muslim Americans and their relatives overseas under immigration laws. 

General Comment No. 23 discusses the importance of Article 27 and the broad scope of rights protected by it, in the interest of preserving the rights and cultures of ethnic and religious minorities in the State. [xix] It especially emphasizes the right of minorities to enjoy their culture and profess and practice their own religion. The Proclamation directly impedes the enjoyment of these rights for a significant swath of the American population by denying visas to religious leaders and ethnic and linguistic artists from the impacted countries. 

VII. Recommended Questions 

We recommend that the Committee pose the following questions to the U.S.: 

  • How can the U.S. ensure that the Proclamation, including the waiver provision, doesn’t run afoul of the U.S.’s obligations under the ICCPR? 
  • What is the U.S. justification for the ongoing, and indefinite, ban on nearly all nationals from the five Muslim-majority countries? 
  • How will the U.S. mitigate the harm already done, and the harm currently being done, to individuals from the affected countries and their families subjected to the Proclamation and the waiver process?   
  • How will the U.S. ensure transparency in its implementation of the Proclamation and its waiver provisions? 

VIII. Suggested Recommendations 

In light of the fact that the Proclamation violates U.S. obligations under the ICCPR, we urge the Committee to recommend: 

  • That the U.S. immediately rescind or repeal Presidential Proclamation 9645 as it violates protections against discrimination based on race, religion, and national origin, and separates families. 
  • That the U.S. immediately hold congressional hearings on Presidential Proclamation 9645 and immediately establish robust congressional oversight over the waiver process, including requiring reporting on data such as the number of applicants (by country), the number of waivers granted, and the number of visas issued to impacted individuals.  
  • That the U.S. immediately issue public guidance on Presidential Proclamation 9645; implement a waiver process that is in full compliance with U.S. law and U.S. obligations under international law; reconsider waivers in all that have been unlawfully denied or refused; and grant visas to all qualifying families and individuals. 

[i] Asian Americans Advancing Justice- Asian Law Caucus (“AAAJ-ALC”) seeks to promote, advance, and represent the legal and civil rights of Asian Pacific Islander communities.  As part of its mission, AAAJ-ALC challenges national laws, policies, and practices that lead to racial and religious profiling of Arab, Middle Eastern, Muslim, and South Asian communities in the United States. See https://www.advancingjustice-alc.org/.

[ii] Center for Constitutional Rights (“CCR”) stands with social justice movements and communities under threat—fusing litigation, advocacy, and narrative shifting to dismantle systems of oppression regardless of the risk.  See https//ccrjustice.org/.

[iii] Council on American-Islamic Relations- San Francisco Bay Area (“CAIR-SFBA”) is an office of CAIR, America’s largest Muslim civil liberties and advocacy organization. Its mission is to enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding. See https://ca.cair.com/sfba/.

[iv] Iranian American Bar Association (“IABA”) is the only national association of Iranian-American judges, attorneys, scholars, and law students in the United States with over 1,500 members. Part of IABA’s mission is to protect and advance the legal rights of Iranian-Americans and other minority communities. See https://iaba.us/.

[v] National Immigration Law Center (“NILC”) was established in 1979 and is one of the leading organizations in the U.S. exclusively dedicated to defending and advancing the rights of immigrants with low income. See https://www.nilc.org/.

[vi] Jenna Johnson, Trump calls for ‘total and complete shutdown of Muslims entering the United States’ (Dec. 7, 2015), WASH. POST, https://www.washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslims-entering-the-united-states/?noredirect=on&utm_term=.0de32510d03e.

[vii] Proclamation No. 9645, 82 Fed.Reg. 45161 (September 27, 2017).

[viii] Yeganeh Torbati, Mica Rosenberg, Exclusive: Visa waivers rarely granted under Trump’s latest U.S. travel ban: data, REUTERS (MAR. 6, 2018), https://www.reuters.com/article/us-usaimmigration-travelban-exclusive/exclusive-visa-waivers-rarely-granted-under-trumps-latestu-s-travel-ban-data-idUSKCN1GI2DW. (discussing Feb. 2018 letter).

[ix] Christopher M. Richardson, The Supreme Court Needs to Know the Truth About Trump’s Travel Ban , Slate.com (June 21, 2018, 4:25 PM), https://slate.com/news-and-politics/2018/06/a-consular-officer-on-how-the-travel-ban-waiver-process-is-a-sham.html.

[x] Center for Constitutional Rights & Rule of Clinic Yale Law School, Window Dressing the Muslim Ban: Reports of Waivers and Mass Denials from Yemeni Americans Stuck in Limbo (2018), https://ccrjustice.org/sites/default/files/attach/2018/06/CCR_YLS_June2018_Report_Window-Dressing-the-Muslim-Ban.pdf.

[xi] Trump v. Hawaii , 138 S. Ct. 2392, 2433 (Sotomayor, J., dissenting) (2018).

[xii] Id. at 2435.

[xiii] Id. at 2431 (Breyer, J., dissenting).

[xiv] HRC Gen’l Comments, 37th Sess., U.N. Doc. CCPR/C/GC/18 (Nov. 10, 1989), available at https://www.refworld.org/docid/453883fa8.html.

[xv] HRC Gen’l Comments, 80th Sess., U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004), available at https://www.refworld.org/docid/478b26ae2.html.

[xvi] HRC Gen’l Comments, 48th Sess., U.N. Doc. CCPR/C/21/Rev.1/Add.4 (July 30, 1993),  available at   https://www.refworld.org/docid/453883fb22.html .

[xvii] HRC Gen’l Comments, 39th Sess., U.N. Doc. CCPR/C/19 (July 27, 1990),  available at https://www.refworld.org/docid/45139bd74.html.

[xviii] GC/18, supra note 14.

[xix] HRC Gen’l Comments, 50th Sess., U.N. Doc. CCPR/C/21/Rev.1/Add.5 (Apr. 8, 1994), available at ttps://www.refworld.org/docid/453883fc0.html.

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Travel Bans

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Presidential Proclamation on Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China

On May 29, 2020, President Trump signed the “ Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China ”. The proclamation suspends U.S. entry of certain nationals of the People’s Republic of China (PRC) on an F-1 or J-1 visa.

Who is impacted?

  • Currently receive funding, are employed by, study at, or conduct research at or on behalf of “an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy'”
  • Have previously been employed at, studied at, or conducted research at or on behalf of “an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy'”

Who is not impacted?

  • All new and continuing undergraduate students
  • All legal U.S. permanent residents
  • A spouse of a U.S. citizen or legal permanent resident
  • New and continuing F-1 or J-1 graduate students and visiting scholars who are in a field of study that “will not contribute to the People’s Republic of China military-civil fusion strategy”

How will the proclamation be enforced?

The U.S. Secretaries of State and Department of Homeland Security, in consultation with the U.S. Attorney General, will implement procedures to identify and enforce the proclamation “as it applies to entry of aliens”. The proclamation is vague in some areas. It does not indicate specific criteria to identify individuals or programs of study aligned with People’s Republic of China “military-civil fusion strategy”.

We will update this page when we receive additional information.

What is “military-civil fusion strategy”?

“Actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.”

Effective date:  June 1, 2020 – until further notice

What is UW-Madison doing in response?

UW-Madison will continue to issue I-20 and DS-2019 services to incoming and current F-1 and J-1 students until we receive further guidance stating otherwise.

Presidential Proclamations on Novel Coronavirus

Proclamation of January 25, 2021 signed by President Biden imposes entry restrictions to the U.S. for travelers who were physically present in one of the countries listed below in the 14 days preceding entry to the U.S.

  • South Africa (effective January 30, 2021 at 12:01 a.m. EST)
  • European Schengen Area (effective January 26 at 12:01 a.m. EST)
  • Ireland and United Kingdom (effective January 26 at 12:01 a.m. EST)
  • Brazil (effective January 26 at 12:01 a.m. EST)

This proclamation bans entry to the United States of most foreign nationals who have traveled to China or Iran within the 14 days immediately before their attempt to enter the U.S.

Please monitor the U.S. Department of State website for any changes.

UW-Madison students currently outside the United States should read our COVID-19 (coronavirus, or 2019nCoV) page for further instructions. Updated Mar. 17, 2020, 5:17 p.m.

Travel Ban 3.0

Executive Order 13780 was rescinded by President Biden on January 20, 2021.

Travel Ban 3.0, officially known as Executive Order 13780 Section 2 , affects 7 countries. The latest version was upheld on June 26, 2018, and is still in effect.

The Travel Ban 3.0 affects nationals of the countries listed below who are outside the U.S. without a valid visa on or after the effective date.

If you meet one of the conditions below, you are exempt from the Travel Ban 3.0:

  • You are inside the U.S. on or after the effective date. You should have a valid passport, I-20/DS-2019, and I-94.
  • You have a valid U.S. visa on or after the effective date. You should have a valid passport and I-20/DS-2019.

Even if you are exempt from the Travel Ban, you may still face increased scrutiny when entering the U.S. or applying for a new F or J visa. If you are from one of the countries on the list, you should consult an ISS advisor before you plan any travel. In some cases, it may be recommended that you consult an immigration attorney.

Travel Ban Countries

Travel ban waiver.

A waiver may be granted on a case-by-case basis. It is the decision of the consular officer to grant you an F or J visa. There is no specific waiver application. You should apply for your F or J visa as normal, but you will need to prepare additional documentation to prove:

  • The denial of your entry would cause you undue hardship
  • Your entry will not pose a threat to the national security of the U.S.
  • Your entry to the U.S. is in the national interest of the U.S.

Some examples of evidence you may be able to provide to support your F or J request for a Travel Ban waiver may include:

  • You were previously admitted into the U.S for a continuous period of work, study, or other long-term activity and you intend to return to the U.S. to resume that activity and your denial of entry will impede that activity. For example, full-time enrollment or authorized period of post-completion OPT or post-completion Academic Training .
  • You have established significant contacts in the U.S. and you are outside the U.S. on work, study, or other lawful activity.
  • You are entering the U.S. for significant business or professional obligations and your denial of entry will impede those professional obligations.
  • You are entering the U.S. to live with a close family member and your denial of entry will cause undue hardship. An example is a dependent seeking entry to the U.S. to live with an F-1 or J-1 visa holder.
  • You are a Canadian permanent resident and you are applying for a visa at a location in Canada.
  • You are entering the U.S. as a J-1 exchange visitor sponsored by the U.S. Government.

The information on this page was adapted from NAFSA Association of International Educators .

Travel Ban 4.0

Proclamation 9983 was rescinded by President Biden on January 20, 2021.

In Proclamation 9983 on January 31, 2020, the travel ban was expanded to place visa and entry restrictions on six more countries: Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania. This will not impact the acquisition of nonimmigrant visas like the F-1 student visa or J-1 exchange visitor visa at this time. Updated Feb. 13, 2020.

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  5. Travel Ban 3.0: Third Time the Charm?

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  6. How to Check the Travel Ban in Dubai, UAE and the ways to lift the

    travel ban 3.0

COMMENTS

  1. PDF Travel Ban 3.0 at the Supreme Court

    in our community impacted by the ban. When did the travel ban go into effect? A: Travel Ban 3.0 has been in effect since December 4, 2017 because of orders by the Supreme Court prior to the decision. However, the ruling means that the ban will continue in its entirety until or unless the administration amends, replaces or repeals it.

  2. What's Different—And What Isn't—About Travel Ban 3.0

    Travel Ban 3.0 invokes the same statutory authority as its predecessors but with a potentially critical difference. The proclamation states that the new ban is based on a global review of vetting procedures and information sharing. Will that make a difference? Maybe, but even Travel Ban 3.0 exhibits a flaw that concerned the Ninth Circuit: The ...

  3. Supreme Court Upholds Travel Ban 3.0

    The U.S. Supreme Court in a 5-4 decision has held that President Donald Trump's Proclamation No. 9645, known as "Travel Ban 3.0," can stand. Trump, et al. v. Hawaii, et al., No. 17-965 (June 26, 2018).Certain individuals from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen will continue to be subject to the ban.

  4. Travel Ban 3.0 May Take Effect

    The third iteration of the travel ban (Travel Ban 3.0), implemented in late-September, restricts travel to the U.S. for individuals from Chad, Iran, Libya, Somalia, Syria, and Yemen. Travel Ban 3. ...

  5. What You Need to Know About the Travel Ban

    What is it? The Travel Ban indefinitely suspended the issuance of both immigrant and non-immigrant visas to applicants from Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela.Former president Donald Trump issued Presidential Proclamation 9645 (Travel Ban 3.0) in September 2017 after the first two iterations of his Travel Ban were blocked by the judicial system.

  6. Supreme Court Upholds Trump's Third Travel Ban

    The Court noted that Travel Ban 3.0 was the result of a multi-agency review process that demonstrated deficiencies in the information shared by certain foreign governments and identified other risk factors, which negatively impact the U.S. government's ability to screen and vet citizens of those countries who apply for entry into the country ...

  7. What's in the Travel Ban the Supreme Court Just Upheld

    President Donald Trump's travel ban 3.0 can now be enforced while the federal appeals courts hear arguments over its legality. This is version 3.0 of Trump's travel ban.

  8. Supreme Court Upholds Trump's Travel Ban : NPR

    Travel ban 3.0. The court seemed to tip its hand at oral arguments in April, when a majority of the justices appeared ready to side with Trump. The court was ruling on what was the third version ...

  9. SCOTUS Upholds Trump's Immigration Travel Ban 3.0

    Supreme Court held Trump's Proclamation No 9645, Travel Ban 3.0, can stand. Certain individuals from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen w

  10. The Travel Ban, Article II, and the Nondelegation Doctrine

    On Sept. 24, 2017, President Trump signed a proclamation, better known as "travel ban 3.0," which would have denied entry to aliens from six predominantly-Muslim nations.In doing so, he invoked "the authority vested in me by the Constitution and the laws of the United States of America." In previous iterations of the travel ban, the president also cited both sources of power ...

  11. Article: In Upholding Travel Ban, Supreme Court En..

    Figure 1. Average Monthly Immigrant Visa Grants to Nationals of Travel Ban Countries, FY 2014-18* * The partial FY 2018 data span January through May, the months in which the third version of the ban was implemented after the Supreme Court allowed it to move forward in December 2017. Note: Venezuela was excluded because few Venezuelan nationals are subject to the ban.

  12. The impact of Trump's Travel Ban 3.0 and ...

    Following days of protests and rallies at airports nationwide, a ruling by a Seattle federal judge blocked Travel Ban 1.0, allowing visas to be restored. TRAVEL BAN EVOLUTION 1.0 TO 3.0. Following the failure of Travel Ban 1.0, the Trump administration came up with a watered-down version 2.0 on June 29, 2017.

  13. Travel Ban: NAFSA Resources

    This Ban (Travel Ban 4.0) became effective at 12:01 eastern standard time on February 21, 2020. Travel Ban 4.0 contained restrictions on immigrants but not on nonimmigrants, so Travel Ban 4.0 did not impact acquisition of nonimmigrant visas like F-1 student, J-1 exchange visitor, H-1B worker, etc., or of admission to the United States in those ...

  14. PDF (Expanded) Travel Ban 3.0: Frequently Asked Questions

    (Expanded) Travel Ban 3.0: Frequently Asked Questions Updated February 8, 2020 On January 31, 2020, President Trump signed a Presidential Proclamation that EXPANDS Travel Ban 3.0 to certain nationals from six NEW countries: Myanmar (also known as Burma), Eritrea, Kyrgyzstan, Nigeria, Sudan and Tanzania. There is no expiration date.

  15. Travel Ban 3.0: What You Need To Know

    Just as the Trump administration's 90-day ban on travel from six Muslim-majority countries was set to expire, it announced the third version of its travel ban Sunday evening. This latest version expands the list of targeted countries to eight and imposes indefinite and potentially permanent bans on entry for many of the affected nationals.. The original ban, which took effect only seven days ...

  16. Travel Ban 3.0 Heads to the Supreme Court:

    The move from Travel Ban 1.0 to Ban 2.0 resulted in the removal of Iraqi nationals from the no-entry list—an important accommodation for the Iraqis who risked their lives to aid US troops. Before promulgating Travel Ban 3.0, the government reverted to some semblance of normal intra-government consultation and review.

  17. PDF Travel Ban 3.0: Litigation Update

    Travel Ban 3.0: Litigation Update On September 24, 2017, the President issued a proclamation titled Enhancing Vetting Capabilities and Processes For Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (Proclamation), building on a previous travel ban, Protecting the Nation from Foreign Terrorist

  18. Travel Ban 3.0: Legalese Cannot Mask a Harsh and Misguided Policy

    Travel ban 3.0 may have both delayed and muddled the legal challenges to the prior travel bans but it should not alter our moral indignation against the policies. The legal challenges to the prior travel bans relied on President Trump's virulent anti-Muslim rhetoric to make a compelling case of the religious animus motivating the ban. The ...

  19. Appeals Court Rules Against Trump's Travel Ban 3.0

    Travel Ban. Appeals Court Rules Against Trump's Travel Ban 3.0 The court concluded that the travel ban exceeds the scope of presidential authority and violates immigration laws enacted by Congress.

  20. Travel Ban 3.0: Coronavirus Outbreak, More Countries Added

    Travel Ban Updates: Temporary Ban of Foreign Nationals Traveling From Mainland China Per Novel Coronavirus Outbreak; Additional Countries Added To Travel Ban 3.0. By Presidential Proclamation ...

  21. The Muslim Ban: Discriminatory Impacts and Lack of Accountability

    II. Issue Summary. The U.S. and the international community is grappling with the discriminatory and devastating impacts of Presidential Proclamation 9645 (also described as "Muslim Ban 3.0" or "Travel Ban 3.0" or the "Proclamation"), which was the third attempt to deliver on then-candidate Trump's call for a "total and complete ...

  22. Travel Bans

    The Travel Ban 3.0 affects nationals of the countries listed below who are outside the U.S. without a valid visa on or after the effective date. If you meet one of the conditions below, you are exempt from the Travel Ban 3.0: You are inside the U.S. on or after the effective date. You should have a valid passport, I-20/DS-2019, and I-94.

  23. Travel Ban 3.0

    NAFSA: Association of International Educators. Phone: 1.202.737.3699 1425 K Street, NW, Suite 1200, Washington, DC 20005