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Summary of Issues & Law of Executive Order Delaying & Reducing Refugee Flow

Background

Trump’s Executive Order (Jan 27, 2017) (“EO”) cites INA section 212(f) [8 USC 1182(f)] as the grounds for the (1) suspension of entry to the US for 90 days of immigrants and nonimmigrants from the countries referenced in INA section 217(a)(12) [8 USC 1187(a)(12)], which are Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen, as well as (2) the suspension of entry of Syrian refugees, and (3) limiting the number of refugees to 50,000 for 2017 . Section 5(b) suspends the refugee program for 120 days and directs the DOS and DHS, after the 120 days,  to prioritize refugee claims based on religious discrimination if the religion of the individual is a minority religion in the individual’s country.  Section 5(e) of the EO states that refugees subject to the temporary suspension can be admitted on a case-by-case basis if it “is in the national interest—including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship—and it would not pose a risk to the security or welfare of the United States.”

Section 212(f) of the INA states:

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline..

Analysis

The issue of whether or not an immigration entry ban based on religion is constitutional is not straightforward because the Supreme Court generally gives a high level of deference to the government’s immigration decisions, especially regarding people who are outside of the US.  We will have to see how the various federal district courts where lawsuits have been filed address the issue on the merits.  Keep in mind that in general, the federal court decisions that immediately came out after the EO was issued are intended to cover individuals who were in transit when the EO was signed and are in the context of injunctions/temporary restraining orders to maintain the status quo of those already at the port of entry until the cases are decided on their merits.

It also remains to be seen how the administration will modify or redefine the Executive Order. For example, DHS also issued guidance on 1/29/17 stating that "the entry of lawful permanent residents to be in the national interest"  and "absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in [DHS's] case-by-case determinations."  This was in reaction to the confusion whereby the White House said that the suspension applies to both LPRS and nonimmigrants from the 7 countries, but later backtracked on LPRs. It may also be intended to address the fact that LPRs have a right to readmission after trips abroad unless the government proves that they have abandoned that right, and imposing a bar based on religion or national origin would arguably violate their due process rights.  Federal district courts, including the Central District of California yesterday (01/31/17), have entered preliminary injunctions barring DHS and DOS from preventing entry by LPRs/immigrant visa holders.

Potential arguments against the constitutionality of the EO:

·         First Amendment - prohibition on government establishment of religion. The EO suspends admission of refugees but asks DHS and DOS to “prioritize refugee claims” by members of a “minority religion” in a country. If this is read as prioritizing one religious group (Christians) over another (since the countries on the list are all Muslim majority countries and President Trump made a number of statements about a “Muslim ban” during his campaign), it could be determined to violate the Establishment Clause of the First Amendment.

·         Equal Protection/Due Process: Due process refers to procedural safeguards before the government may harm an individual’s liberty, while equal protection means the government must consider people equally and cannot discriminate on the basis of race, nationality, etc.  Note that these protections only apply to people who are present in the U.S.  Given the chaotic/inconsistent way the EO was initially implemented, there is also the argument that summarily deporting people with valid visas who are applying for admission at the U.S. border violates their right to apply for CAT relief or withholding of removal. 

·         8 U.S. Code § 1152 – contains nondiscrimination clause that outlaws discriminating against a person regarding issuing visas based on “nationality, place of birth, or place of residence,” which is the case with the EO.

·         Habeas Corpus (for those initially detained at airports when the order went into effect). 

Summary by Joseph Fungsang, Attorney, Margaret W. Wong & Associates LLC