On Friday January 27, Donald Trump signed a “blanket ban” on all people coming from Iran, Iraq, Somalia, Syria, Yemen, Libya and Sudan, whether or not they hold valid visas. He issued this executive order on Holocaust Remembrance Day, a day that remembers a time when Jews were not allowed asylum in the United States and elsewhere due to their religion.
Tony Derosby ‘80 came to Bates College Thursday night to take questions on and cover what the executive order means. Derosby is an attorney at Pierce Atwood LLP who specializes in immigration law and represents companies whose employees are affected by the ban. He was later invited to talk at Bates College addressing the implications of the order. His talk covered the details of the order, the questions left after it, court actions since then, and where the executive order is headed.
Derosby first summarized what the executive order means. There is now a 90 day ban on entry to the United States for all nationals of the seven identified countries and immediate suspension of the US Refugee Admissions Program for 120 days. There is indefinite suspension on processing and admission of any Syrian refugees as well as indefinite suspension on the Visa Interview Waiver program.
The banned countries list is likely to expand. Under the order, the Department of Homeland Security (DHS) has 30 days to submit a report to the president identifying a list of countries that do not provide sufficient information to verify identity and to make a threat assessment. The countries will then be given 60 days to provide information, and if they do not, they will be added to the banned country list until such time as they come into compliance.
Where did the list of banned countries come from? The executive order does not explicitly list the seven countries; rather, it refers to a 2015 federal statute enacted under the Obama administration. Derosby clarified, “In 2015 an amendment was added…that made ineligible for the Visa Interview Waiver Program anyone who had been a national of one of the seven countries or who had visited one of the seven countries after March 1, 2011. So for those people, if you had ever held citizenship…and are eligible for a visa interview waiver, you would have to be subject to an in-person interview at a consulate abroad”.
The executive order targets Syrian refugees. Refugees are individuals outside the United States requesting a visa to travel here under the Refugee Program. Derosby stated, “In order to establish eligibility, they have to show a legitimate fear of persecution in their home country based on race, religion, ethnicity, nationality, political opinion, or membership in a particular social group”. The executive order halts the refugee program for 120 days and reduces the country’s refugee quota from 110,000 to 50,000, the lowest number in over a decade.
Trump bypassed the traditional inter-agency process that would have allowed Congress and Homeland Security to provide operational guidance. According to Derosby, “Multiple sources reported that the United States Customs and Border Protections (CBP), which is the agency responsible for doing traveller inspections at any port of entry… didn’t see the final version of the EO until after it was signed. So this entire federal agency learned about the order the same way I did.”
On Tuesday, the State Department issued an emergency internal directive cancelling all visas for nationals of the affected countries. Derosby explained, “If you are outside the state…the visa which would be your travel document…is no longer valid…The State Department directive was not communicated to individual visa holders. So you could easily try to board a flight and learn about the order that way”.
This brings up the issue of Lawful Permanent Residents (LPRs). LPRs reside in the United States under a green card status and pay taxes. In the first two days after the executive order, LPRs were detained. Derosby said that upon detention, “they [were] told that they are going be deported, which is a bar on entry of up to ten years, or they can elect to surrender their status voluntarily…and depart…And people did that”. CBP later said in a press release that LPRs are allowed admission. “I’ve been doing this for a long time, I’ve never seen CBP issue an internal policy directive in a press release. But that’s how this was handled”, said Derosby.
There have been many court acts against the order based on due process to equal protection grounds and on various other statutory grounds. As Derosby put it, “What’s going on in those cases is that plaintiffs who are adversely affected… can go to a federal court and can ask for something called a temporary restraining order, also known as injunctive relief”. The plaintiffs must prove there is an imminent danger that unless the court states enforcement, they will suffer irreparable harm and injury. In essence, the plaintiff has to prove the negative impact on themselves outweighs the threat to national security.
“So far it appears that CBP has demonstrated intent to comply with federal orders”, said Derosby. “One of the things that I’ve been very nervous about is…what happens when a federal court issues an order striking down part or all of the executive order? Will the administration honor the federal court order? Courts don’t have armies, they don’t have police. Our Constitution works because the branches respect each other”.
Derosby ended with his prediction for the country’s future: “This executive order is resulting in some of the earliest, the earliest, judicial tests of executive action with this administration. And so far CBP has avowed an intention to comply…I think there is a good chance that there will be a federal court decision soon which will stay all or part of the order indefinitely”.