Trump Expected to Sign Revised Refugee
Admissions/Travel Ban Executive Order
Admissions/Travel Ban Executive Order
Monday, February 27, 2017
 | President Trump is expected this week to sign a new executive order on refugee admissions, immigration, and travel to the United States. Should he do so, it is likely to completely replace the embattled refugee admissions/travel ban executive order that the President signed on January 27, 2017, and that has been tied up in litigation ever since. White House insiders suggest that the revised executive order could be issued on Wednesday, March 1st. |
Reported Provisions. Reports indicate that the revised executive order will contain the following provisions:
Implementation Matters. Administration sources have indicated that the text of the revised executive order was all-but-final but that it has not been signed yet in order to give the Department of Homeland Security and Department of State time to determine how they will implement it.
Other reports indicate that there were interdepartmental disputes that needed to be resolved before the new executive order could be signed. For instance, it has been reported that among the questions that were under dispute within the Administration is what to do with the visas of between 60,000 to 100,000 people who are from the banned countries and already have visas to visit the United States. These reports indicate that the Department of Homeland Security and the White House want to revoke the visas while Department of Justice lawyers are concerned that if they do so, they could be held in contempt of court by a Seattle judge who issued a temporary restraining order (TRO) blocking the implementation of that particular provision in the January 27th executive order.”
Not much has been said publicly by Department of State and Department of Homeland Security officials about the new Order. However, Secretary of State Rex Tillerson has said that there would likely be a short delay in the implementation of it to accommodate people who are in the process of traveling to the U.S. at the time the Order is signed.
Intelligence Flap. The Administration has sought to get the intelligence community to confirm that the seven predominantly-Muslim countries whose citizens would be banned from the Unite States by the January 27th executive order are high threats for sending terrorists to the United States. However, over the weekend, word leaked that an internal intelligence unit within the Department of Homeland Security has found that the opposite is the case. Indeed, a leaked draft report from DHS’s intelligence unit concluded that there was insufficient evidence that citizens of the seven countries included in President Donald Trump's travel ban pose a terror threat to the United States. Moreover, the draft report found that citizenship was “likely an unreliable indicator of terrorist threat to the U.S.”
The assessment looked at U.S.-based individuals convicted of or killed in the process of a terrorist act inspired or done at the direction of a foreign terrorist organization. It found the top countries the foreign-born perpetrators hailed from Pakistan, Somalia, Bangladesh, Cuba, Ethiopia, Iraq and Uzbekistan. Only Somalia and Iraq are on the Trump travel ban list.
Litigation Matters. Once signed by the President, the revised refugee admissions/travel ban executive order will almost certainly become immediately embroiled in litigation.
The January 27th executive order is the subject of litigation in 20 different courts across the country. Five key parts of it have been blocked by the United States Court of Appeals for the Ninth Circuit, which upheld a district court’s temporary restraining order (TRO) enjoining the Administration from fully implementing it.
On Thursday, February 16th, the Department of Justice indicated in a court filing that will not appeal the TRO and that, instead, it, the President will withdraw the January 27th Oder in lieu of the new one. Notwithstanding the Court filing, the White House has sent conflicting signals over the last two weeks about whether it will completely withdraw the January 27th executive order, with White House Press Secretary Sean Spicer repeatedly implying that the Administration intends to continue pursuing a favorable ruling in the Courts on the January 27th executive order, even after a new order is issued.
As recently as Friday, February 24th, however, the Administration filed yet another brief in the Ninth Circuit indicating it plans to completely withdraw the January 27th executive order when it issues the new one.
- Refugee Admissions Ceiling. Reports indicate that the new executive order will cap refugee admissions for fiscal year 2017, the current fiscal year, at 50,000. This would be a reduction of 60,000 compared to the number of such admissions planned for the fiscal year by the Obama Administration. Moreover, it would be a reduction of 35,000 from the 85,000 refugees who were admitted to the United States in Fiscal Year 2016. This would be identical to the refugee ceiling provision that was contained in the January 27th Executive Order.
- Pause in the Refugee Program. Reports indicate that the new executive order will still pause the refugee program so that the Administration can study and implement new vetting procedures for refugee applicants. However, the duration of the pause was not known at the time of this writing. The January 27th Order contained a 120-day pause in the program.
- Prioritization of Religious Minorities. Reports indicate that the new executive order will drop a provision contained in the January 27th Order that would have prioritized religious minorities facing religious persecution for admission to the United States as refugees. Some rumors had the provision being dropped altogether. Others suggested that there might be proxies for religious persecution in the new order, such as prioritization for the victims of genocide.
- Treatment of Syrian Refugees. Reports indicate that the new executive order will drop a provision contained in the January 27th Order that indefinitely barred refugees from Syria from entering the United States.
- Ninety Day Travel Ban. Reports indicate that the new executive order will contain a ban of some duration for the following seven predominately Muslim countries: Iran, Iraq, Syria, Libya, Yemen, Somalia, and Sudan. It also has been reported that the new order will give the Secretary of State broad authority to waive individual cases and allow, in certain instances, citizens from the seven banned countries to enter the U.S., but the Secretary would have to agree with the Secretary of Homeland Security before specific cases are waived. The January 27th executive order contained a 90 day ban on travel to the United States for persons from those same countries.
- Treatment of Lawful Permanent Residents. Reports indicate that the new executive order will explicitly exempt lawful permanent residents (LPRs) from the travel ban. The January 27th Order did not explicitly do so. However, the White House Counsel “reinterpreted” the Order as doing so after litigation called into question the constitutionality of that provision.
Implementation Matters. Administration sources have indicated that the text of the revised executive order was all-but-final but that it has not been signed yet in order to give the Department of Homeland Security and Department of State time to determine how they will implement it.
Other reports indicate that there were interdepartmental disputes that needed to be resolved before the new executive order could be signed. For instance, it has been reported that among the questions that were under dispute within the Administration is what to do with the visas of between 60,000 to 100,000 people who are from the banned countries and already have visas to visit the United States. These reports indicate that the Department of Homeland Security and the White House want to revoke the visas while Department of Justice lawyers are concerned that if they do so, they could be held in contempt of court by a Seattle judge who issued a temporary restraining order (TRO) blocking the implementation of that particular provision in the January 27th executive order.”
Not much has been said publicly by Department of State and Department of Homeland Security officials about the new Order. However, Secretary of State Rex Tillerson has said that there would likely be a short delay in the implementation of it to accommodate people who are in the process of traveling to the U.S. at the time the Order is signed.
Intelligence Flap. The Administration has sought to get the intelligence community to confirm that the seven predominantly-Muslim countries whose citizens would be banned from the Unite States by the January 27th executive order are high threats for sending terrorists to the United States. However, over the weekend, word leaked that an internal intelligence unit within the Department of Homeland Security has found that the opposite is the case. Indeed, a leaked draft report from DHS’s intelligence unit concluded that there was insufficient evidence that citizens of the seven countries included in President Donald Trump's travel ban pose a terror threat to the United States. Moreover, the draft report found that citizenship was “likely an unreliable indicator of terrorist threat to the U.S.”
The assessment looked at U.S.-based individuals convicted of or killed in the process of a terrorist act inspired or done at the direction of a foreign terrorist organization. It found the top countries the foreign-born perpetrators hailed from Pakistan, Somalia, Bangladesh, Cuba, Ethiopia, Iraq and Uzbekistan. Only Somalia and Iraq are on the Trump travel ban list.
Litigation Matters. Once signed by the President, the revised refugee admissions/travel ban executive order will almost certainly become immediately embroiled in litigation.
The January 27th executive order is the subject of litigation in 20 different courts across the country. Five key parts of it have been blocked by the United States Court of Appeals for the Ninth Circuit, which upheld a district court’s temporary restraining order (TRO) enjoining the Administration from fully implementing it.
On Thursday, February 16th, the Department of Justice indicated in a court filing that will not appeal the TRO and that, instead, it, the President will withdraw the January 27th Oder in lieu of the new one. Notwithstanding the Court filing, the White House has sent conflicting signals over the last two weeks about whether it will completely withdraw the January 27th executive order, with White House Press Secretary Sean Spicer repeatedly implying that the Administration intends to continue pursuing a favorable ruling in the Courts on the January 27th executive order, even after a new order is issued.
As recently as Friday, February 24th, however, the Administration filed yet another brief in the Ninth Circuit indicating it plans to completely withdraw the January 27th executive order when it issues the new one.