On June 26, 2018, the Supreme Court upheld President Trump’s Presidential Proclamation No. 9645 (also known as the Muslim Ban 3.0). The Muslim Ban restricts immigration to the U.S. by citizens of seven countries, many of which are mostly Muslim. The Court upheld the Ban for two reasons. First, the Court found the Ban had a legitimate purpose, “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Second, the Court recognized and respected the President’s power to make decisions on national security issues. However, now-retired Justice Kennedy did warn Trump and all future executives that this great power would not shield the Administration from all scrutiny. In his concurrence, Kennedy stated “[j]ust because this is an area of great discretion for the president does not mean he is free to disregard the constitution and the rights it proclaims and protects.” Overall, the Court also chose to ignore any clear expressions of bias shown by President Trump and his administration. With this decision, the current Ban is effective in its entirety as noted below.
The Current State of the Travel Ban
The Ban’s restrictions on the remaining seven countries are country-specific, and tailored to the situation of each individual country.
As of the most recent revision on April 10, 2018, the following restrictions are in place:
- Iran – No non-immigrant visas except student (F/M) and exchange visitor (J) visas; No immigrant or diversity visas
- Libya and Yemen – No business (B-1), tourism (B-2), and combination (B-1/B-2) visas; No immigrant or diversity visas
- North Korea and Syria – No non-immigrant visas; No immigration or diversity visas
- Somalia – No immigrant or diversity visas
- Venezuela – No business, tourism, or combination (B-1, B-2, or B-1/B-2) visas for certain government officials and their immediate family members.
- Iraq – While not explicitly on the list, the Ban states “that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States.”
Exceptions and Waivers
Those subject to this Ban who possess a valid visa or valid travel document generally will be permitted to travel to the U.S., regardless of when the visa was issued.
The following exceptions to the Ban may apply, on a case-by-case basis as determined by a consular officer, which may allow for the issuance of a visa:
- Any national who was in the United States on the applicable effective date for that national, regardless of immigration status; [1]
- Any national who had a valid visa on the applicable effective date;
- Any national who qualifies for a visa or other valid travel document under section 6(d) of the Proclamation;
- Any lawful permanent resident of the United States;
- Any national who is admitted to or paroled into the United States on or after the applicable effective date;
- Any applicant who has a document other than a visa, valid on the applicable effective date for that applicant or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole;
- Any dual national of a country designated under the Proclamation when traveling on a passport issued by a non-designated country;
- Any applicant traveling on a diplomatic or diplomatic-type visa except certain Venezuelan government officials and their family members; and
- Any applicant who has been granted asylum; admitted to the United States as a refugee; or has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Consular and immigration officials may grant waivers on a case-by-case basis if an individual provides information in his visa application that “demonstrates to the consular officer’s satisfaction that”:
- denying entry would cause the foreign national undue hardship;
- entry would not pose a threat to the national security or public safety of the United States;
- entry would be in the national interest.
Other situations where an applicant can establish that his or her entry meets the standard for a waiver might also be considered by a consular or immigration official.
Visit the Department of State Bureau of Consular Affairs website for the most updated information on the Travel Ban.
What Does This Mean?
For Citizens of the Designated Countries who are currently in the United States
Citizens of the designated countries are at risk if they leave the country, no matter what their status is. Even if they are granted parole or special permission to travel, there is a high risk that they will not be allowed back into the country once they leave.
For International Travel
All international travelers, regardless of citizenship, are subject to having their belongings, including cellphones and laptops, subject to search. Border agents have given themselves “discretionary authority” to question travelers whom they deem suspicious.
Border agents have been asking for voluntary disclosure of social media passwords. The failure to comply with these requests at this time is not a valid basis for detention. The Trump administration has suggested that disclosure may be made mandatory in the future. CLCMA anticipates a challenge to any such change in policy. At this time, travelers may be subject to extended questioning if they refuse to disclose passwords.
Please contact an attorney with knowledge of this area for answers to any specific questions, as the law is still developing and changing frequently.
Footnotes
[1]The September 24, 2017 effective date applies to nationals of Iran, Libya, Syria, Yemen, and Somalia who were subject to the prior 90-day entry ban of Executive Order 13780, because they “lack credible claim of a bona fide relationship with a person or entity in the United States.”
The October 18, 2017 effective date applies: 1) to all nationals of North Korea and Venezuela, and 2) to nationals of Iran, Libya, Syria, Yemen, and Somalia who have a “credible claim of a bona fide relationship with a person or entity in the United States.”
Persons: Parent (including parent-in-law), Spouse, Fiancé, Child, Adult son or daughter, Son-in-law, Daughter-in-law, Sibling, Grandparent, Grandchild, Brother-in-law, Sister-in-law, Aunt, Uncle, Niece, Nephew or, Cousin (first cousins only), including half or step status relationships.
Entities: A bona fide relationship with a “U.S. entity” that is formal, documented, and formed in the ordinary course rather than for the purpose of evading suspension of entry under presidential proclamation.
Acknowledgements
Thanks to Cindy Chu for her image of the Muslim Ban protest at LAX, licensed under a Creative Commons Attribution 2.0 Generic (CC BY 2.0) license.
