Executive Order 13769

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Executive Order 13769
Protecting the Nation from Foreign
Terrorist Entry into the United States
Donald Trump signing the order with Mike Pence and James Mattis at his side
U.S. President Donald Trump signing the order at the Pentagon, with Vice President Mike Pence (left) and Secretary of Defense James Mattis (right) at his side.
Executive order
Enacted by U.S. President Donald Trump
Date signed January 27, 2017 (2017-01-27)
Date effective January 27, 2017 (2017-01-27)
Administered by
Related legislation
Immigration and Nationality Act of 1965
Summary
  • Suspends the U.S. Refugee Admissions Program for 120 days (conditionally expires May 27, 2017)
  • Restricts entry from seven countries for 90 days (expires April 27, 2017 - excludes green card holders and dual citizens)
  • Orders list of countries for entry restrictions after 90 days
  • Suspends admission of Syrian refugees indefinitely
  • Prioritizes refugee claims by individuals from minority religions on the basis of religious-based persecution
  • Expedites a biometric tracking system
  • Other provisions
Status: Unknown
File:Executive Order no. 13769 ban map.svg
Map of countries affected by section 3 of the executive order. Collectively, section 3 applies to over 218 million people (the total population of the seven countries named in the executive order).[1] Fewer than 60,000 visas have been revoked under the travel ban.[2] Section 5 applies to all countries.

Executive Order 13769,[3] entitled "Protecting the Nation from Foreign Terrorist Entry into the United States", is an executive order that was signed by U.S. President Donald Trump on January 27, 2017.

The order limited the number of refugee arrivals to the U.S. to 50,000 for 2017 and suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, after which the program would be conditionally resumed for individual countries while prioritizing refugee claims from persecuted minority religions. The order also indefinitely suspended the entry of Syrian refugees.[4][5][6][7] Further, the order suspended the entry of alien nationals from seven Muslim-majority countries — Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen — for 90 days, after which an updated list will be made.[8] The order allows exceptions to these suspensions on a case-by-case basis. The Department of Homeland Security later exempted U.S. lawful permanent residents (green card holders).[9]

Dozens of travelers were detained and held for hours without access to family or legal assistance.[citation needed] In addition, up to 60,000 visas have been "provisionally revoked", according to the State Department.[10] Legal challenges to Executive Order 13769 were immediately filed, arguing that the order, or actions taken pursuant to the order, violated the U.S. Constitution, federal statutes, and treaty obligations. Federal courts issued emergency orders halting detention, expulsion, or blocking of lawful travelers, pending final rulings. A district court ruling in State of Washington v. Trump temporarily restrained major provisions of the order nationwide, including the travel ban and refugee suspension, except the 50,000 limit. Homeland Security and State Departments stopped enforcing the order and reinstated the revoked visas.

Domestically, the order was criticized by Democratic and Republican members of Congress, universities, business leaders, Catholic bishops, and Jewish organizations. A record 1,000 U.S. diplomats signed a dissent cable opposing the order.[11][12] Public opinion was divided, with initial national polls yielding inconsistent results.[13] Protests against the order erupted in airports and cities. Internationally, the order prompted broad condemnation, including from longstanding U.S. allies.[14][15][16] The travel ban and suspension of refugee admissions was criticized by top United Nations officials[17][18] and by a group of 40 Nobel laureates and thousands of other academics.[19]

Background

File:Visas to 7 countries in immigration ban by type and number 2016.png
Number of visas issued in 2016 for the seven countries in the Executive Order. Type of visa shown by color on pies, and total number by size.[20] See types of immigration at Permanent residence (United States) § Types of immigration.
File:Number of visas by country 2016, highlighting 7 excluded countries.png
Map comparing US immigrant and non-immigrant visas issued at Foreign Service posts by country in 2016, highlighting the seven countries in the Executive Order.[20]

Donald Trump became the U.S. president on January 20, 2017. He has said, despite evidence, that large numbers of terrorists are using the U.S. refugee resettlement program to enter the country.[21] As a candidate, Trump's "Contract with the American Voter" pledged to suspend immigration from "terror-prone regions".[22][23] Trump-administration officials then billed the executive order as fulfilling this campaign promise.[24][unreliable source?]

During his initial election campaign, Trump had proposed a temporary, conditional, and "total and complete" ban on Muslims entering the United States.[21][25][26][27] His proposal was met by opposition by U.S. politicians.[25] Mike Pence and James Mattis were among those who opposed the proposal.[25][28] On 12 June, in reference to the 2016 Orlando nightclub shooting that occurred on the same date, Trump, via Twitter, renewed his call for a Muslim immigration ban.[29][30] On 13 June, Trump proposed to suspend immigration from "areas of the world" with a history of terrorism, a change from his previous proposal to suspend Muslim immigration to the U.S; the campaign did not announce the details of the plan at the time, but Jeff Sessions, an advisor to Trump campaign on immigration,[31] said the proposal was a statement of purpose to be supplied with details in subsequent months.[32] In a speech on August 31, 2016, Trump vowed to "suspend the issuance of visas" to "places like Syria and Libya."[33][34]

President Trump told the Christian Broadcasting Network (CBN) that Christian refugees would be given priority in terms of refugee status in the United States,[35] after saying that Syrian Christians were "horribly treated" by his predecessor, Barack Obama.[36][37] Christians make up very small fractions (0.1% to 1.5%) of the Syrian refugees who have registered with the UN High Commission for Refugees in Syria, Jordan, Iraq, and Lebanon; those registered represent the pool from which the U.S. selects refugees.[38] António Guterres, then the UN High Commissioner for Refugees, said in October 2015 that many Syrian Christians have ties to the Christian community in Lebanon and have sought the UN's services in smaller numbers.[38] During 2016, the U.S. had admitted almost as many Christian as Muslim refugees.[37] Based on this data, Senator Chris Coons accused Trump of spreading "false facts" and "alternative facts."[39]

A 2015 report published by the Migration Policy Institute found that 784,000 refugees had resettled in the United States since September 11, 2001, with only 3 arrested for suspected terrorism.[40] In January 2016, the Department of Justice (DOJ), upon request by the Senate Subcommittee on Immigration and the National Interest, provided a list of 580 public international terrorism and terrorism-related convictions from September 11, 2001 through the end of 2014.[41] Based on this data and news reports and other open-source information, the committee determined that at least 380 among the 580 convicted were foreign-born.[42] The Cato Institute's Alex Nowrasteh said that the list of 580 convictions shared by DOJ was problematic in that "241 of the 580 convictions, or 42 percent, were not even for terrorism offenses"; they started with a terrorism tip but ended up with a non-terrorism charge, like "receiving stolen cereal."[43][44][45][46]

Stephen Miller, Senior Advisor to the Trump White House, on January 29, 2017 suggested in an interview with Fox News the purpose of the order was to stop people who would “infiltrate”[47] through the old system. He subsequently stated: “By our estimates, there're more than 40 refugees in recent history who’ve been subsequently implicated in terrorism, and nearly 400 foreign nationals or naturalized foreigners who became U.S. citizens subsequent to their entry, who’ve been implicated in terrorism since 9/11 so it is a very large number of people who have infiltrated the immigration program."[48][citation needed]

Development of the order

File:Executive Order 13769.pdf
Executive Order 13769 as published in Federal Register
File:Draft version of Executive Order 13769.pdf
Draft of Executive Order 13769

The New York Times observed that candidate Trump in his June 13, 2016 speech was reading from statutory language to justify the President’s authority to suspend immigration from areas of the world with a history of terrorism.[49] The Washington Post identified the referenced statute as 8 U.S.C. 1182(f).[50] This was the statutory subsection eventually cited in Sec. 3 of the executive order.[51]

According to CNN, the executive order was developed primarily by White House officials (which the Los Angeles Times reported as including "major architect" Stephen Miller and Steve Bannon[52]) without input from the U.S. Department of Justice's Office of Legal Counsel (OLC) that is typically a part of the drafting process.[53] This was disputed by White House officials.[53] The OLC usually reviews all executive orders with respect to form and legality before issuance. The White House under previous administrations, including the Obama administration, has bypassed or overruled the OLC on sensitive matters of national security.[54]

Trump aides said that the order had been issued in consultation with DHS and State Department officials; however, multiple officials at the State Department and other agencies said it was not.[55][56] An official from the Trump administration said that parts of the order had been developed in the transition period between Trump's election and his inauguration.[57] On January 29, NBC News reported that the order was not reviewed by the Justice Department or by the departments of Homeland Security (DHS), State, or Defense, and that attorneys at the National Security Council were blocked from evaluating the order[citation needed]. However, CNN reported that Homeland Security Secretary John Kelly and Department of Homeland Security leadership saw the final details shortly before the order was finalized.[58] John Kelly himself on January 31, told reporters that he "did know it was under development" and had seen at least two drafts of the order.[59][60] For the Defense Department, James Mattis did not see a final version of the order until the morning of the day President Trump signed it (the signing occurred shortly after Mattis' swearing-in ceremony for Secretary of Defense in the afternoon[61][62]), and the White House did not offer Mattis the chance to provide input while the order was drafted.[63]

Former New York City mayor Rudy Giuliani said on Fox News that President Trump came to him for guidance over the order.[64] He said that Trump called him about a "Muslim ban" and asked Giuliani to form a committee to show him "the right way to do it legally".[65][66] The committee, which included former U.S. Attorney General and Chief Judge of the Southern District of New York Michael Mukasey, and Reps. Mike McCaul and Peter T. King, decided to drop the religious basis and instead focused on regions where Giuliani says that there is "substantial evidence that people are sending terrorists" to the United States.[66]

Provisions

File:OLC opinion on legal form review.pdf
OLC opinion on legal form review

Section 1, describing the purpose of the order, invoked the September 11 attacks stating that then State Department policy prevented consular officers from properly scrutinizing the visa applications of the attackers[67][68][69] However, none of the September 11 hijackers were from any of the seven banned countries.[68][70] When announcing his executive action, Trump made similar references to the attacks several times.[70]

The seven countries targeted by the executive order exclude Saudi Arabia, Egypt, and other Muslim-majority countries where The Trump Organization has conducted business or pursued business opportunities.[71][72] Legal scholar David G. Post, through an opinion column in Washington Post, initially suggested that Trump had "allowed business interests to interfere with his public policy making" and called for Trump's impeachment. However, he later modified that call to instead ask for Trump's financial information.[73]

Visitors, immigrants and refugees

Section 3 of the order blocks entry of aliens Libya, Sudan, Somalia, Syria, Iran, Iraq, and Yemen, for at least 90 days regardless of whether or not they have a valid non-diplomatic visa.[74] After 90 days a list of additional countries , (not just those listed in [lower-alpha 1] of the Immigration and Nationality Act (INA)) must be prepared.[75] The cited section of the INA refers to aliens who have been present in or are nationals of Iraq, Syria, and other countries designated by the Secretary of State.[76] Citing Section 3(c) of the Executive Order, Deputy Assistant Secretary of State for Consular Affairs Edward J. Ramotowski issued a notice that "provisionally revoke[s] all valid nonimmigrant and immigrant visas of nationals" of the designated countries.[77][78]

The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, must conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA. Within 30 days, the Secretary of Homeland Security must list countries that do not provide adequate information.[79] The foreign governments then have 60 days to provide the information on their nationals, after which the Secretary of Homeland Security must submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals from countries that do not provide the information.[75]

Section 5 suspends the U. S. Refugee Admissions Program (USRAP) for at least 120 days but stipulates that the program can be resumed for citizens of the specified countries if the Secretary of State, Secretary of Homeland Security and the Director of National Intelligence agree to do so.[75] The suspension for Syrian refugees is indefinite.[79][80] The number of new refugees allowed in 2017 is capped to 50,000, down from 110,000.[81] After the resumption of USRAP, refugee applications will be prioritized based on religion-based persecutions only in the case that the religion of the individual is a minority religion in that country.[82]

The order said that the Secretaries of State and Homeland Security may, on a case-by-case basis and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.[74][79][83][84] Another provision calls for an expedited completion and implementation of a biometric entry/exit tracking system for all travelers coming into the United States, regardless of whether they are foreigners or not.[79][85]

Green card holders

There was some confusion about the status of green card holders (permanent residents). Initially, the Department of Homeland Security said that the order barred green card holders from the affected countries, and White House officials said that they would need a case-by-case waiver to return.[86] On January 29, White House Chief of Staff Reince Priebus said that green card holders would not be prevented from returning to the United States.[87] According to the Associated Press, as of January 28 no green card holders were ultimately denied entry to the U.S., although several initially spent "long hours" in detention.[87][88] On January 29, the Secretary of Homeland Security John F. Kelly deemed entry of lawful permanent residents into the U.S. to be "in the national interest", exempting them from the ban according to the provisions of the executive order.[87][89] On February 1, White House Counsel Don McGahn issued a memorandum to the heads of State, Justice, and Homeland Security departments clarifying that the ban provisions of the executive order do not apply to lawful permanent residents.[90]

Dual citizens

There was similar confusion about whether the order affected dual citizens of a banned country and a non-banned country. The U.S. State Department said that the order did not affect U.S. citizens who also hold citizenship of one of the seven banned countries.[91] On January 28, the State Department stated that other travelers with dual nationality of one of these countries—for example, an Iranian who also hold a Canadian passport—would not be permitted to enter.[91] However, the International Air Transport Association told their airlines that dual nationals who hold a passport from a non-banned country would be allowed in.[91] The United Kingdom's Foreign and Commonwealth Office also issued a press release saying that it applies to those traveling from the listed countries, not those that merely have their citizenship.[92] The confusion led companies and institutions to take a more cautious approach; for example, Google told its dual national employees to stay in the United States until more clarity could be provided.[91]

Deleted provision regarding safe zones in Syria

Further information: Safe Zone (Syria)

A prior draft of the order (leaked to a human rights organization[vague][which?] before the order went into effect[93]) would have ordered that “the Secretary of State, in conjunction with the Secretary of Defense, is directed within 90 days of the date of this order to produce a plan to provide safe areas in Syria and in the surrounding region in which Syrian nationals displaced from their homeland can await firm settlement, such as repatriation or potential third-country resettlement.” [94] This provision was not in the final order.[3] Rex Tillerson, Trump’s Secretary of State, had not yet taken office at the time the executive order went into effect.[95]

During and after his campaign, Trump proposed establishing safe zones in Syria as an alternative to Syrian refugees’ immigration to the U.S. In the past “Safe Zones” have been interpreted as establishing, among other things, no-fly zones over Syria. During the Obama administration, Turkey encouraged the U.S. to establish Safe Zones; the Obama administration was concerned about the potential for pulling the U.S. into a war with Russia.[96]

On January 30, Saudi Arabia told Trump it supported the creation of safe zones in Syria and Yemen.[97] On February 2, Trump discussed safe zones with the government of Jordan.[98] On February 3, the U.S. secured Lebanon’s backing for Safe Zones in Syria.[99]

Impact

Implementation at airports

Shortly after the enactment of the executive order at 4:42 pm on January 27, border officials across the country began enforcing the new rules. The New York Times reported people with various backgrounds and statuses being denied entry or sent back, including refugees and minority Christians from the affected countries as well as students and green card holders returning to the United States after visits abroad.[86][100]

People from the countries mentioned in the order with valid visas were turned away from flights to the U.S.[101] Some were stranded in a foreign country while in transit.[102] Several people already on planes flying to the U.S. at the time the order was signed were detained on arrival.[101] On January 28, the American Civil Liberties Union estimated that there were 100 to 200 people being detained in U.S. airports,[103] and hundreds were barred from boarding U.S.-bound flights.[104] About 60 legal permanent residents were reported to have been detained at Dulles International Airport near Washington, D.C.[105] The Department of Homeland Security said that on January 28 the order was applied to "less than one percent" of the 325,000 air travelers who arrived in the United States.[106] By January 29, the Department of Homeland Security estimated that 375 travelers had been affected with 109 travelers in transit and another 173 prevented from boarding flights.[107] In some airports, there were reports that Border Patrol agents were requesting access to travelers' social media accounts.[108]

On February 3, 2017, attorneys for the DoJ's Office of Immigration Litigation advised a judge hearing one of the legal challenges to the order that more than 100,000 visas have been revoked as a consequence of the order. They also advised the judge that no legal permanent residents have been denied entry.[109] The State Department later revised this figure downward to fewer than 60,000 revoked visas and clarified that the larger DoJ figure incorrectly included visas that were exempted from the travel ban (such as diplomatic visas) and expired visas.[2][110]

Debate over the numbers of affected persons

On January 30, Trump said in a Twitter post that "Only 109 people out of 325,000 were detained and held for questioning."[111] The agency also reported 1,060 waivers for Green Card holders had been processed; 75 waivers had been granted for persons with immigrant and nonimmigrant visas; and 872 waivers for refugees had been granted.[112]

The Washington Post fact-checker compared the 109 number quoted by Trump to 90,000, which is the number of U.S. visas issued in the seven affected countries in fiscal year 2015.[113] It later edited the story to blame the White House to not use the overall daily number of travelers as a comparison.[111] The New York Times cited figures of 86,000 visitors, students and workers in addition to 52,365 who passed the requirements for green cards.[114]

Impact on U.S. companies

Google called its traveling employees back to the U.S., in case the order prevents them from returning. About 100 of the company's employees were thought to be from the countries in the order. Google CEO Sundar Pichai wrote in a letter to his staff that "it's painful to see the personal cost of this executive order on our colleagues. We've always made our view on immigration issues known publicly and will continue to do so."[115][116] Amazon.com Inc. and Expedia Inc. filed declarations in support of Washington State and Minnesota in their case against the executive order, State of Washington v. Trump.[117][118]

Impact on the national populations of the banned nationals

According to Trita Parsi, the president of the National Iranian American Council, the order distressed citizens of the affected countries, including those holding valid green cards and visas. Those outside the U.S. fear that they will not be allowed in, while those already in the country fear that they will not be able to leave, even temporarily, because they would not be able to return.[119]

Impact on U.S. health care

According to an analysis by a group of Harvard Medical School professors, research analysts and physicians, the executive order is likely to reduce the number of physicians in the United States, as approximately 5% of the foreign-trained physicians in the United States were trained in the seven countries targeted by the executive order.[120] These doctors are disproprtionately likely to practice medicine in rural, underserved regions and specialties facing a large shortage of practitioners.[120]

Reactions

File:Trump 'It's not a Muslim ban'.webmhd.webm
Trump on refugee order: "It's not a Muslim ban" (video from Voice of America)

Domestic

Trump faced much criticism for the executive order. Democrats "were nearly united in their condemnation" of the policy,[121] with Senate Minority Leader Chuck Schumer saying that "tears are running down the cheeks of the Statue of Liberty tonight as a grand tradition of America, welcoming immigrants, that has existed since America was founded, has been stomped upon".[122] Senator Bernie Sanders of Vermont said the order "plays into the hands of fanatics wishing to harm America".[123] Senator Kamala Harris of California and the Council on American–Islamic Relations denounced the order and called it a Muslim ban.[124] Trump's order was also criticized by former U.S. Secretaries of State Madeleine Albright[122] and Hillary Clinton.[125] Kevin Lewis, spokesperson to Trump's predecessor Barack Obama, also said (in apparent reference to the order) that the ex-president "fundamentally disagrees" with religious discrimination.[126]

File:Washington v. Trump Order Granting Full Nationwide Stay.pdf
Washington v. Trump Order Granting Full Nationwide Stay

Among Republicans, some praised the order, with Speaker of the House Paul Ryan saying that Trump was "right to make sure we are doing everything possible to know exactly who is entering our country" while noting that he supported the refugee resettlement program.[127] Republican Congressman Bob Goodlatte said that he was "pleased that President Trump is using the tools granted to him by Congress and the power granted by the Constitution to help keep America safe and ensure we know who is entering the United States".[128] However, some top Republicans in Congress criticized the order.[121] In a statement, Senators John McCain and Lindsey Graham cited the confusion that the order caused and the fact that the "order went into effect with little to no consultation with the Departments of State, Defense, Justice, and Homeland Security".[129] McCain stated that the order would "probably, in some areas, give ISIS some more propaganda".[130] Senator Susan Collins, who announced in August 2016 that she would not vote for Trump because she felt he was "unsuitable for office",[131] also objected to the ban, calling it "overly broad" and saying that "implementing it will be immediately problematic".[132] Several other Republican senators offered more muted criticism.[121] In response to McCain and Graham's statement, Trump criticized them on Twitter January 29, questioning their stance on immigration and saying that they "should focus their energies on ISIS, illegal immigration and border security instead of always looking to start World War III".[133]

Some 1,000 career U.S. diplomats signed a "dissent cable" (memorandum) outlining their disagreement with the order, sending it through the State Department's Dissent Channel, which was put into place in 1971 in order to allow senior leadership in the department to have access to differing viewpoints on the Vietnam War.[134][135] This was a record number,[12] far surpassing the previous record in June 2016 when 51 diplomats signed a dissent cable calling the Obama administration to launch airstrikes against Syria's President Bashar Assad.[136][137] White House Press Secretary Sean Spicer responding by telling dissenting diplomats to leave their jobs if they do not agree with the Trump administration[138] saying "They should either get with the program or they can go", despite the rules protecting dissenters in the State Department.[138] Dozens of medical and scientific groups protested the order as well.[139]

International

The order prompted broad condemnation from the international community, including longstanding U.S. allies.[14][15][16] Canadian Prime Minister Justin Trudeau stated Canada would continue to welcome refugees regardless of their faith.[140] British Prime Minister Theresa May was initially reluctant to condemn the policy, having just met with Trump the day prior, saying that "the United States is responsible for the United States policy on refugees",[141][142][143] but said she "did not agree" with the approach.[144] France and Germany condemned the order, with both countries' foreign ministers saying in a joint news conference that "welcoming refugees who flee war and oppression is part of our duty" and that "the United States is a country where Christian traditions have an important meaning. Loving your neighbor is a major Christian value, and that includes helping people".[14][128] Some media outlets said Australian prime minister Malcolm Turnbull avoided public comment on the order, with Turnbull saying it "is not my job" to criticize it.[145] However, Australian opinion soured after a Tweet by Trump appeared to question a refugee deal already agreed by Turnbull and Obama. The deal, which would have seen the US "take an interest in" up to 1,250 asylum seekers from Australia's offshore detention centers at Manus Island and Nauru, was described on Twitter by Trump as a "dumb deal" which he would "study".[146] Iran's Ministry of Foreign Affairs characterized Trump's order as insulting to the Islamic world and counter-productive in the attempt to combat extremism. It announced that Iran would take "reciprocal measures in order to safeguard the rights of its citizens".[147][148] On February 1, the United Arab Emirates became the first Muslim-majority nation to back the order.[149] Foreign Minister Sheikh Abdullah bin Zayed Al Nahyan said that most of the world's Muslim-majority nations were not covered by the order, which he characterized as temporary and a "sovereign decision" of the United States.[149][150]

The Catholic Church has condemned the ban and encouraged mercy and compassion towards refugees.[151][152] The U.S. Conference of Catholic Bishops stated that "The church will not waiver in her defence of our sisters and brothers of all faiths who suffer at the hands of merciless persecutors".[153] The executive director of the Baptist Joint Committee for Religious Liberty, Amanda Tyler, stated that the executive order was "a back-door bar on Muslim refugees."[154] The director of the Alliance of Baptists, Paula Clayton Dempsey, urged the support of American resettlement of refugees.[154] However, members of the Southern Baptist Convention were largely supportive of the executive order.[154] The Economist noted that that the order was signed on International Holocaust Remembrance Day, "a time when many Americans recall with anguish the hundreds of German Jewish refugees denied entry to American ports".[36] This fact, as well as Trump's omission of any reference to Jews or Anti-Semitism in his concurrent address for Holocaust Remembrance Day[155] and the ban's possible effect on Muslim refugees, led to condemnation from Jewish organizations, including the Anti-Defamation League, the HIAS, and J Street,[156] as well as Holocaust survivors.[157] Some of these organizations were involved in the protests against the immigration ban at the JFK International airport[158] and in Manhattan,[159] with groups of Jews, on the Sabbath, joining interfaith protests with Muslims against the immigration ban.

Some "alt-right" groups, including white nationalists, anti-Semites, conspiracy theorists and the Klu Klux Klan praised the executive order.[160][161] Some European far-right groups and politicians applauded the executive order.[162][163] 2017 French presidential candidate and frontrunner Marine Le Pen supported the executive order, pointing out that many Muslim-majority countries have a permanent travel ban against Israeli citizens, whereas Trump's executive order is a temporary measure.[164]

Jihadist and Islamic terrorist groups celebrated the executive order as a victory, saying that "the new policy validates their claim that the United States is at war with Islam."[165] ISIS-linked social media postings "compared the executive order to the U.S. invasion of Iraq in 2003, which Islamic militant leaders at the time hailed as a 'blessed invasion' that ignited anti-Western fervor across the Islamic world."[165]

Protests and impact on airports

File:Protests at NY Airport - Trump Immigration Order.png
Protests against the order at New York's John F. Kennedy International Airport
File:SFO Muslim Ban Protest (32432117132).jpg
Protests against the order at San Francisco International Airport on January 29, 2017

On January 28 and thereafter, thousands of protesters gathered at airports and other locations throughout the United States to protest the signing of the order and detention of the foreign nationals. Members of the United States Congress, including Senator Elizabeth Warren (D-MA) and Congressman John Lewis (D-GA) joined the protests in their own home states.[166] Google co-founder Sergey Brin and Y Combinator president Sam Altman joined the protest at San Francisco airport.[167][168] Virginia governor, Terry McAuliffe, joined the protest at Dulles International Airport on Saturday.[169]

Legal challenges

On January 28, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of two Iraqis who were detained at New York's John F. Kennedy International Airport on January 27, hours after the order was signed.[21] The lawsuit said that the executive order was in violation of procedural due process under the Fifth Amendment to the United States Constitution, the Immigration and Nationality Act, the Convention Against Torture, the Foreign Affairs Reform and Restructuring Act of 1998, and the Administrative Procedure Act.[170] The Council on American–Islamic Relations (CAIR) also said that it planned to file a lawsuit.[171]

On January 28 at about 9:00 p.m. EST, Ann Donnelly, a U.S. District Judge from the Eastern District of New York, blocked part of the order, ruling that refugees, naturalized citizens, visa holders, and green-card holders from the seven affected countries could not be sent back to their home countries.[86][86][172][173][174][175] Donnelly was acting her capacity as miscellaneous duty judge, and the case was assigned to Judge Carol Bagley Amon the following Monday, along with other related cases in the same district.[176] The decision covers airport detainees and those already in transit, estimated to number between 100 and 200.[177][178] Although the court found a "strong likelihood" that the enforcement of the order violated the detainees' constitutional rights,[179] the court did not address whether the order is facially constitutional.[86] The stay will be in effect until a hearing scheduled for February 21.[103]

Similar stays have been issued in other cases, by Eastern District of Virginia Judge Leonie Brinkema in Aziz v. Trump, and Western District of Washington Judge Thomas Zilly[180] in Doe v. Trump.[181]

On January 29 at 1:51 a.m. EST, U.S. District Judge Allison Burroughs and Magistrate Judge Judith Dein ordered that the same group of people shall not be detained or removed, and explicitly applied the same protections to U.S. permanent residents. Specially, the order barred the detention of those "who, absent the Executive Order, would be legally authorized to enter the United States".[182] Further, the judges ordered the U.S. Customs and Border Protection to notify airlines with flights arriving at Logan Airport of the court order and "the fact that individuals on these flights will not be detained or returned based solely on the basis of the Executive Order".[182][183] This court order restores the ability for lawful immigrants from the seven barred nations to enter the U.S. through Logan Airport.[183][184]

On February 3, District Judge Nathaniel M. Gorton declined to extend the order past its scheduled expiration, saying that "because plaintiffs have not demonstrated that they are likely to succeed on the merits of any of their claims, an extension of the restraining order at the present time is not warranted."[185][186] He based his judgement on the fact the Trump administration had excluded green card holders named in the suit from the executive order since the suit had been filed, and that visa-holding immigrants had a lower standard of legal protection.[185]

Lawyers representing the affected travelers said on January 29 that some authorities were unwilling to follow the judge's ruling, citing the refusal of Border Patrol agents at Washington Dulles Airport to allow attorneys to communicate with detainees in violation of a district judges' ruling that required such access.[187] Many detainees were held for hours without access to family, friends, or legal assistance.[107][188][189][190]

On February 1, District Judge André Birotte Jr. in the Central District of California issued a preliminary injunction in a case brought on behalf of 28 Yemeni immigrants suspended in transit to the US as a result of the executive order.[191] The ruling, worded to apply more broadly than to the case's plaintiffs alone, said that anyone "from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen with a valid immigrant visa" be allowed to enter the United States.[191] However, as a State Department official had previously issued a memo "provisionally" revoking all immigrant visas in the wake of Trump's issuing of the executive order, it was unclear whether the ruling would in practice apply to anyone.[192]

On February 2, a federal judge in Detroit ruled that the order not be applied to permanent residents nationwide and permanently, given the White House's prior declaration that the order did not apply to permanent residents, in the case Arab-American Civil Rights League v. Trump.[193]

State of Washington v. Trump

File:State of Washington vs. Donald J. Trump, et al.webm
State of Washington vs. Donald J. Trump, et al. Hearing and Bench Ruling Granting Temporary Restraining Order (TRO)

The state of Washington filed a legal challenge, State of Washington v. Trump, against the executive order;[117][194] Minnesota later joined the case.[195] Amazon.com Inc. and Expedia Inc. filed declarations in support of the case.[117][196]

On February 3, District Judge James Robart issued a ruling temporarily blocking major portions of the executive order; he said that the plaintiffs had "demonstrate[d] immediate and irreparable injury," and were likely to succeed in their challenge to the federal government.[197] Robart's ruling denied the federal government the ability to enforce the 90-day travel ban from the seven countries, as well as all limits on refugee acceptance imposed by the executive order.[198]

Citing a Texas district court's prior ruling against an immigration program from the Obama administration that blocked it nationally, Robart explicitly wrote his judgement to apply nationwide.[198] In response to Robart's ruling, the Department of Homeland Security said on February 4 that it had stopped enforcing the executive order, while the State Department activated visas that had been previously suspended.[199][200]

Federal response

In response to the lawsuits, the Department of Homeland Security issued a statement on January 29 saying that that it would continue to enforce all of the executive order and that "prohibited travel will remain prohibited", noting that "no foreign national in a foreign land, without ties to the United States, has any unfettered right to demand entry into the United States or to demand immigration benefits in the United States".[106] On the same day, a White House spokesperson said that the rulings did not undercut the executive order, and that "All stopped visas will remain stopped. All halted admissions will remain halted. All restricted travel will remain prohibited."[201]

File:Sally Yates Firing Press Release.png
White House press release regarding Sally Yates

On January 30, Acting Attorney General Sally Yates, an Obama administration appointee holding the position until the confirmation of Jeff Sessions, barred the Justice Department from defending the executive order in court.[202][203] According to Yates, the department's Office of Legal Counsel conducted a review of the order in order to determine if it was "lawful on its face", but she said that the review did not address the order's effects, which she felt were not in keeping "with this institution's solemn obligation to always seek justice and stand for what is right".[204] She went on further to say that, regardless of the Office of Legal Counsel's opinion, she was not "convinced that the executive order is lawful".[204] After Yates spoke against Trump's refugee ban, however, Trump quickly relieved her of her duties, calling her statement a "betrayal" to the administration.[205] He replaced her with Dana J. Boente, the United States Attorney for the Eastern District of Virginia.[206] In addition, acting director of the U.S. Immigration and Customs Enforcement (ICE) Daniel Ragsdale was replaced with Thomas Homan soon after Yates's removal.[207] This leadership alteration became known as the Monday Night Massacre.[208]

In response to the firing of Yates and the demotion of Ragsdale, a bipartisan group of more than 70 former Assistant U.S. Attorneys—including 50 who had served under a Republican administration—defended the decision of the former acting Attorney General.[209] In their statement, they said:

File:Washington v. Trump - Emergency motion for stay to Ninth Circuit Court of Appeals.pdf
Emergency motion for a stay of TRO in State of Washington v. Donald J. Trump, et. al. to Ninth Circuit Court of Appeals

Struck by one stunning headline after another, we stopped to think: if we were called upon to defend the Executive Order, could we do it within the guidelines we learned and lived by as lawyers for the United States? We could not. We could not candidly tell a court, consistent with these principles, that the Executive Order is not, in fact, a thinly veiled attempt to exclude Muslims from certain countries based on their religion. We could not candidly tell a court that the United States has the right to turn away refugees fleeing grave danger, even though they have already been fully vetted and approved for admission. (...) If asked whether the language of the Executive Order would permit the President to give preference to Christians over Muslims for admission to the United States, a position the President has publicly expressed, we would have to say, yes, the language would allow that. If asked whether such a religious preference comports with our Constitution, we would have to say we do not believe so.

Not all responders were supportive of Yates, however. Journalist Gregg Jarrett of Fox News applauded the removal, saying that Yates had "committed an egregious violation of ethical standards and a serious breach of her duties" and "deserved to get canned."[210] Jack Goldsmith, a former US Assistant Attorney General, said:[211]

If Yates feels this way, she should have resigned. Instead, she wrote a letter that appears to depart sharply from the usual criteria that an Attorney General would apply in deciding whether to defend an EO in court. As such, the letter seems like an act of insubordination that invites the President to fire her. Which he did.

File:Washington v. Trump - Order denying immediate administrative stay pending full consideration of the emergency motion for stay and setting schedule.pdf
Order denying immediate administrative stay pending full consideration of the emergency motion for stay and setting schedule

Yates's successor, acting Attorney General Dana J. Boente, issued guidance to Justice Department employees on the evening of January 30 stating that the Office of Legal Counsel "found the Executive Order both lawful on its face and properly drafted."[212]

On February 3, in response to Judge Robart's ruling temporarily blocking the executive order nationwide, the Justice Department asked for an emergency stay to honor President Trump's executive action on immigration admissions, according to a statement released by the White House's Office of the Press Secretary.[213] The United States Court of Appeals for the Ninth Circuit denied Trump's immediate petition to stay the TRO from the Federal District Court in Washington State.[214][215]

See also

Notes

References

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  3. 3.0 3.1 82 FR 8977
  4. Green, Emma (January 27, 2017). "Where Christian Leaders Stand on Trump's Refugee Policy". The Atlantic. Retrieved February 4, 2017. It also allows the secretaries of State and Homeland Security to jointly admit individuals on a case-by-case basis, 'including when the person is a religious minority ... facing religious persecution.' 
  5. Bulos, Nabi (January 29, 2017). "Trump's refugee policy raises a question: How do you tell a Christian from a Muslim?". Los Angeles Times. Retrieved February 4, 2017. The order notes, however, that the secretaries of State and Homeland Security may jointly decide to admit some refugees 'including when the person is a religious minority in his country of nationality facing religious persecution.' But in proposing what commentators have called a 'religious test,' Trump has not yet answered one crucial question: Just how does one differentiate between Muslims and Christians? 
  6. Dewan, Angela; Smith, Emily (January 30, 2017). "What it's like in the 7 countries on Trump's travel ban list". CNN. Turner Broadcasting System. Retrieved February 2, 2017. Life is also grim for many living under ISIS rule. 
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  11. (PDF) https://assets.documentcloud.org/documents/3438487/Dissent-Memo.pdf.  Missing or empty |title= (help)
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    1. The policy team at the White House developed the executive order on refugees and visas, and largely avoided the traditional interagency process that would have allowed the Justice Department and homeland security agencies to provide operational guidance, according to numerous officials who spoke to CNN on Saturday.
    2. Homeland Security Secretary John Kelly and Department of Homeland Security leadership saw the final details shortly before the order was finalized, government officials said.
    3. Before the President issued the order, the White House did not seek the legal guidance of the Office of Legal Counsel, the Justice Department office that interprets the law for the executive branch, according to a source familiar with the process.
    4. White House officials disputed that Sunday morning, saying that Office of Legal Counse signed off and agency review was performed.
    5. A source said the creation of the executive order did not follow the standard agency review process that's typically overseen by the National Security Council.
    6. Separately, a person familiar with the matter said career officials in charge of enforcing the executive order were not fully briefed on the specifics until Friday. The officials were caught off guard by some of the specifics and raised questions about how to handle the new banned passengers on US-bound planes.
    7. Administration officials also defended the process Saturday. They said the people who needed to be briefed ahead of time on the plane were briefed and that people at the State Department and DHS who were involved in the process were able to make decisions about who to talk and inform about this.
    ". 
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External links

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