According to senior Biden administration officials, President Joe Biden will issue a new presidential proclamation to officially rescind the travel ban that restricted entry into the United States for individuals traveling from Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. President Biden is expected to lift the ban effective 12:01am ET on Dec. 31, 2021, bringing to an end all of the travel bans into the United States. However, travelers will still need to abide by U.S. COVID-19 vaccination and testing requirements to travel to the United States.

The State Department has once again updated its guidance regarding those who qualify for travel ban exemption. The additional guidance expands the waiver criteria to include individuals who will provide vital support or executive direction for critical infrastructure or for significant economic activity. This new guidance will allow managers and executives in key industries to apply for and obtain waivers to the travel ban if qualified.

On Jan. 18, 2021, President Trump issued a Presidential Proclamation terminating his previous Presidential Proclamations restricting travel from certain Schengen areas (Proclamation 9993), UK/Ireland (Proclamation 9996), and Brazil (Proclamation 10041). President Trump cites recent developments in the battle against COVID-19, including the CDC requiring negative COVID-19 tests for all air passengers entering the United States from a foreign country, and cooperation from the countries listed above. President Trump had also issued Presidential Proclamations banning travel from China and Iran, and the restrictions from those countries have not been lifted.

The terminations for the three Proclamations will be effective at 12:01 a.m. EST on Jan. 26, 2021. There are, however, expectations that President-elect Joe Biden, once he takes office, will delay the termination for a few weeks until there is a better understanding from his administration on how the U.S. is faring vis-à-vis COVID-19.

On Jan. 31, 2020, President Trump issued a Proclamation, effective Feb. 21, 2020, imposing even more limitations on visa issuance and travel to the United States for additional countries entitled “Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry.” This Proclamation follows his first travel ban from March 2017 where the Secretary of Homeland Security was ordered to develop an assessment model to assess national security and public safety threats in identifying whether countries would be removed or added to the list. From the March 2017 travel ban, 200 countries were reviewed and assessed, and in September 2017, President Trump issued a revised version of the travel ban.

Since then, DHS has continued to review and assess security concerns from each country, utilizing updated methodologies, which includes a foreign government’s willingness and frequency in sharing information, and working with the intelligence community to assess risk of terrorist travel.  A review of each country’s performance per the criteria established in 2017 was also conducted, and as a result, it has been recommended to President Trump that he exercise his authority to suspend entry into the United States for an additional six countries as follow: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.

Continue Reading President Trump Issues New Proclamation on Travel Ban, Adding Six Additional Countries

The U.S. Supreme Court, on June 26, 2018, upheld President Trump’s Proclamation on the Travel Ban in Trump v. Hawaii. As previously blogged, the Proclamation was issued by President Trump on Sept. 24, 2018. It was then blocked by the District Court, after which the Ninth Circuit partially stayed, and on Dec. 4, 2017, the Supreme Court issued an order allowing the Proclamation to go fully into effect.

Chief Justice Roberts delivered the opinion of the Court, with Justice Kennedy and Justice Thomas concurring. Justice Breyer dissented, joined by Justice Kagan, while Justice Sotomayor dissented, joined by Justice Ginsburg. Chief Justice Roberts begins by reiterating the timeline for the Proclamation, as well as the two previous Executive Orders on the Travel Ban. A summary of the two Executive Orders can be found in our blog posts “Summary of Executive Order: Protecting the Nation from Terrorist Attacks by Foreign Nationals” and “New Travel Ban Order to Temporarily Halt Entry for Those Seeking New Visas from 6 Muslim-Majority Countries.”

Chief Justice Roberts discusses the two issues at hand: 1) whether the president has the executive power to limit the entry of certain individuals, and 2) whether this Proclamation in particular violated the Establishment Clause. The Supreme Court held that 1) the president does have this broad authority and that the issuance of the Proclamation (as well as its contents) are in his authority, and 2) the contents of the Proclamation do not violate the Establishment Clause, as the plaintiffs have alleged. The discussion is below on the two issues.

First Issue: Does the President have the authority to issue the Proclamation?

Chief Justice Roberts addresses the plaintiffs’ argument that the Proclamation contravenes provisions in the Immigration and Nationality Act (INA), and that the president does not have the authority to issue the Proclamation under the INA because the authority only allows a halt of entry for those entering to engage in harmful conduct and that it discriminates on the basis of nationality in the issuance of immigrant visas.

The Court addresses these arguments by citing Section 1182(f) of the INA, where it states:

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.

Chief Justice Roberts analyzes the Proclamation’s contents and writes in the opinion that President Trump met all the requirements as set forth. He cites the contents of the Proclamation, including the thorough review of the countries, the focus on exchange of information between countries, and also the review period that has allowed for countries to be removed from the list once they were deemed compliant. The Court cites examples of previous administrations that also issued Proclamations to suspend entry into the United States for certain individuals.

The plaintiffs also argued that Section 1182(f) does not give the president the authority to surpass congressional policies that have been laid out, specifically the vetting system designed by Congress to determine admissibility, and also the information sharing system created through the Visa Waiver Program. The Court addresses both issues and notes that the vetting system is only enhanced by the Proclamation and that the focus of the Proclamation is on the foreign country’s ability to provide the information needed. Second, the Visa Waiver Program is in place for countries that have already fulfilled the information exchange process, and that it does not necessarily apply here. For this sub-argument, the Court’s opinion is that the Proclamation only supplements the efforts of Congress.  In addition, the Court cites to historical practice of instances where Proclamations have been issued to limit the entry of certain groups of people.

Thus, the holding on the first issue is that the Proclamation is squarely within the scope of President Trump’s authority under the INA.

Second Issue: Does the Proclamation violate the Establishment Clause of the First Amendment?

The plaintiffs also claim that the Proclamation violates the Establishment Clause of the First Amendment because it targets Muslims/those in the Islamic faith. The Court looks at this issue and discusses statements made by the president and his advisors to understand the intent and rhetoric behind the Proclamation. The Court reviews the timeline and statements made by the president and his advisors and concludes “the President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.”  In considering the statements made by the president, the Court also considers the president’s authority. In this particular case, the Court finds that the Proclamation has a legitimate purpose – it prevents entry of nationals who cannot be adequately vetted and induces other countries to improve their practices. Because the Court does not find any text on religion within the Proclamation and it notes that the policy only covers eight percent of the world’s Muslim population, the Court does not find a violation of the Establishment Clause of the First Amendment.

In concluding the opinion, Chief Justice Roberts writes that the activities surrounding the Travel Bans, starting with the Executive Orders, have already supported the fact that it was issued in response to a legitimate national security interest. First, three Muslim-majority countries have already been removed from the list of covered countries. Second, the Proclamation includes text that will provide exceptions to certain individuals from the listed countries such as permitting students and exchange visitors from Iran). Third, the Proclamation includes the ability to apply for a waiver.

 

Ian R. Macdonald and Kristen W. Ng were recently featured in an article on The LexBlog Network titled, “Third Time’s a Charm? Greenberg Traurig’s Team Breaks down Trump’s Latest Travel Ban.” In this Q&A, Macdonald and Ng explore the third version of the Trump Administration’s travel ban and what it means for employers and employees going forward, including next steps for those affected and a forecast on what’s to come. To read the entire interview, please click here.

 

On Sept. 24, 2017, President Trump issued a Proclamation with visa and travel restrictions. It imposed new limitations on nonimmigrant and immigrant visa issuance and travel to the United States for citizens/nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The Proclamation came after two Executive Orders imposing travel bans were issued earlier this year but were delayed in implementation by the federal courts.

Continue Reading Ninth Circuit Allows Partial Implementation of President Trump’s Proclamation on Travel Ban

On Tuesday, Oct. 10, the U.S. Supreme Court dismissed an appeal in Trump v. International Refugee Assistance Project (16-1436), one of the cases challenging a provision in a now-expired version of President Trump’s travel ban (Executive Order No. 13780).

Continue Reading U.S. Supreme Court Dismisses Travel Ban Case

On Sept. 24, 2017, President Trump issued a Proclamation imposing new limitations on visa issuance and travel to the United States for nationals of eight countries entitled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.”  These countries include: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. This Proclamation was issued after the Attorney General and the Secretaries of the Department of Homeland Security and the Department of State collected information from more than 200 countries to determine whether there were threats or security concerns in a comprehensive report submitted to the president on July 9, 2017.  Out of the 200 countries evaluated and studied in the reports, a small number were determined to be deficient with regard to identity management and information sharing capabilities, protocols, and practices, as well as having a terrorist presence within the countries. The reports evaluated: 1) identity management information, including integrity documents such as passports; 2) national security and public safety information on criminal history; and 3) national security and public safety risk assessment focused on terrorist activity within the country.

Continue Reading.

The Department of Homeland Security (DHS) released FAQs for those affected by the recently reinstated travel ban. Earlier last week, the Department of State released their own set of FAQs regarding implementation of the travel ban during visa processing. DHS will be responsible for admitting persons entering the United States and the FAQs on its website will answer questions many people may have.

Greenberg Traurig will continue to monitor new developments. For more information, please contact us or subscribe to this blog.