Following the Supreme Court’s unanimous ruling that the vast majority of President Trump’s March 6th Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States could go into effect, today the administration began taking “additional steps to do just that,” said a senior White House official during a not for attribution pres meeting.
The Executive Order restricts immigration from Iran, Syria, Somalia, Sudan, Libya and Yemen. It suspends all refugee admission for 120 days.
None of the two lower courts’ suspension of Trump’s original Executive Order addressed the President’s authority, which he exercised under Article II of the Constitution and under section 212(f) of the INA [Immigration and Nationality Act], which provides in relevant part: ‘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’ 8 U.S.C. 1182(f).’”
It took no time for court challenges to be filed within days of President Trump issuing his revised “extreme vetting” Executive Order as his administration dismissed the pending Ninth Circuit Court of Appeal’s continued consideration of the injunction on his initial Executive Order.
The Department of Homeland Security {DHS) also earlier stressed that, “Congress provided the President of the United States, in section 212(f) of the INA, with the authority to suspend the entry of any class of aliens the President deems detrimental to the national interest. This authority has been exercised repeatedly for decades, and has been a component of immigration law since the enactment of the original INA in 1952.”
Pursuant to the President’s June 14thinteragency memorandum and to the extent permitted by the Supreme Court, implementation of Executive Order will began Thursday night at 8:00 pm Eastern Standard Time.
A senior administration official said, noting, “This ruling was a significant win for our national security, and President Trump was particularly gratified by the unanimity of the decision. As recent events have shown, we are living in a very dangerous time, and the US government needs every available tool to prevent terrorists from entering the country and committing acts of bloodshed and violence. And as the President reiterated following Monday’s ruling, his number one responsibility as Commander-in-Chief is to keep the American people safe.”
A senior State Department official said, “We … will be implementing the executive order in compliance with the Supreme Court’s decision and in accordance with the presidential memorandum issued on June 14th, 2017. We have worked closely with our interagency partners to ensure that this is an orderly rollout,” commending them “for their hard work and collaboration since the ruling. This was an organized and deliberate process, and implementation will be done professionally and expeditiously by all the agencies involved.
Continuing, the official said, “Our plan is not to cancel previously scheduled visa application appointments, so individuals should continue to come in for their visa interviews as scheduled. Our consular officers have then been given detailed instructions to make case-by-case determinations on whether individuals would qualify for visas under the new guidance.”
“We will first be applying the traditional screening to these individual” according to the State Department official. That is, we will be assessing whether they qualify under the Immigration and Nationality Act, and we will then see, if they do qualify under the INA, whether they qualify under the guidance. Individuals who are qualified will then be subjected to all vetting as normal. All security and screening vetting will be applied to anybody who is deemed qualified for a visa.”
Another senior administration official said “on the refugee side … our objective in implementing the executive order is to ensure the security of the United States, and we’re going to do so in as orderly a fashion as we possibly can. For the aspects related to refugees of the executive order, Section 6 is important, and it has two pieces: Section 6(a), which put in place a 120-day suspension on the admission of any refugees to the United States, although that section includes an exception for those refugees who are in transit and booked for travel; and Section 6(b), which set a 50,000 limit on the admission of refugees for Fiscal Year 2017. There is an exemption for those individuals who have bona fide relationships, and that applies to both pieces – both 6(a) and 6(b).”
The official clarified that regarding the relationships described already, “on the family side, those relationships have been defined to include parents, spouses, children, adult son or daughters, sons and daughter-in-laws and siblings.”
"As regards relationships with entities in the United States, these need to be formal, documented and formed in the ordinary course of events rather than to evade the executive order itself,” the official added, “Importantly, I want to add that the fact that a resettlement agency in the United States has provided a formal assurance for refugees seeking admission is not sufficient, in and of itself, to establish a bona fide relationship under the ruling. We’re going to provide additional information to the field on this.”
The decision for who is included in the definition of the family relationship, “we based that on the definition of family in the Immigration and Nationality Act [INA], and also what we saw in the Supreme Court decision. So you will see some categories in addition to the basic definition in the INA,” the official added.
Continuing,the official said, “based on our discussions with Department of Justice, we have already informed the field and our various partners that under the in-transit exception, refugees will be permitted to travel if they’ve been booked to travel through July 6th. And, we’re going to be addressing what happens to those who’ve been booked to travel after that time and those who are covered by the relationships.”
“Generally, with regard to what is going to take place, for purposes of enforcement, visas that have been issued by the Department of State prior to the effective date of the executive order are to be considered as valid for travel and seeking entry into the United States unless revoked on an unrelated basis,” said a senior Department of Homeland Security (DHS) official. “So what that in very clear language means is persons who have visas andshow up at the ports of entry on a flight, on a ship or another method will be allowed to enter the United States unless there’s another reason for not being allowed in. So, someone who has a visa will be allowed to be admitted. If, for some reason, there is another basis, they will not,” such as people with visas who show up who there’s intelligence on them to not be admitted, criminal activity, fraudulent documents, etc.
The DHS official said, “The executive order does not bar entry for individuals who are excluded from the suspension provision under the terms of the executive order who obtain a waiver from the State Department or US Customs and Immigration Service [USCIS] or who demonstrate a bona fide relationship. USCIS is going to be working in coordination with Department of State and Justice. They have developed guidance for their workforce regarding to the adjudication of refugee applications. Both Customs and Border Protection [CBP] and USCIS have provided – have guidance for their employees and have been working to make sure the employees are well versed in how the executive order will be implemented.”
The official said DHS “expect business as usual at the ports of entry … It will be business as usual for us. We expect things to run smoothly, and our people are well-prepared for this and they will handle the entry of people with visas professionally, respectfully and responsibly, as they have always done, with an eye toward ensuring that the country is protected from persons looking to travel here to do harm.”
“Upon arrival to a port of entry, travelers are still subject to inspection and must satisfy all requirements under federal law and regulation. Individuals will not be denied entry based solely on their being a national from one of [the] countries [temporarily banned under the executive order],” said a senior DHS official.
DHS said in a statement that, “The Supreme Court … has allowed the Department of Homeland Security to largely implement the President’s Executive Order and take rational and necessary steps to protect our nation from persons looking to enter and potentially do harm. The granting of a partial stay of the circuit [courts’] injunctions with regard to many aliens abroad restores to the Executive Branch crucial and long-held constitutional authority to defend our national borders.”
DHS said it “will provide additional details on implementation after consultation with the Departments of Justice and State. The implementation of the Executive Order will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”
Rep. Bennie G. Thompson (D-MS), ranking member of the House Committee on Homeland Security, however, complained Thursday the administration is not answering questions on the travel ban implementation.
“Just hours before the President’s unconstitutional and misguided travel ban takes partial effect tonight, administration officials briefing Congress were unwilling or unable to provide meaningful answers about how they determined whom the ban would affect, why the ban would apply to certain family members, including grandparents, or whether they will share implementation guidance,” Thompson stated, adding. “This apparent lack of preparation and transparency does not inspire confidence that the administration has learned its lesson after the chaos the first travel ban created at airports around the world in January. It is imperative that the Trump administration avoid repeating past mistakes by immediately providing clear guidance to DHS and State Department personnel, travel industry partners, and the public.”
With regard to the executive order’s enhanced vetting, a State Department official said it “complements what is going to be happening … we continue to put into place advanced – enhanced vetting measures and to continue to have the interagency conversation on howto implement those. So, that is all moving forward in tandem with this implementation.”
A senior State Department official added that, “under section six [of the order] relating to refugees, there’s also a call for review of additional procedures for vetting of refugees. That’s to be conducted under the leadership of the Department of State. We began that effort on June 23rd and will do so with our interagency partners.”
The official said, “On the refugee side, as of last night, we had admitted 49,009 refugees in this Yiscal Year. There is a pipeline of folks who have been processed at different levels, and it’s a little bit difficult to pull that apart, but there are additional refugees in the queue. It’s impossible right now to [say] definitively how many refugees would be affected, because we’re going to have to go through the exemptions that are listed related to close family relationships and relationships with entities. So, I’m afraid we can’t [provide] a precise number. But, I do want to say that under the court’s ruling, there will be additional refugee arrivals based on those relationships following July 6th.”
Another senior official said “we have limited guidance … but they have to be formal and documented relationships that were not created for the purposes of evading the executive order. While the SCOTUS ruling did provide some specific examples related to visas, there were no specific examples related to refugees per se. So I think that we’re going to be working on that, and I would defer to other agencies if they’d like to address it further.”
With regard to people who have close relationships who do not don’t fit into the order’s definitions like people raised by their grandparents or other extended family members, one of the senior State Department officials said, “what we’re going to do is look to see if an applicant qualifies under the exemptions. And if they don’t have the requisite family relationship, if they would like to articulate a reason that we should nevertheless waive the inadmissibility, they are certainly welcome to articulate that reason to us. And we will look at those cases case by case, but it won’t be the relationship that will be the determining factor.”
The official said, “the guidance we have from the President is to put a pause on certain travel while we review our security posture. And we have guidance on what types of relationships would be exempted from the pause, and we are following our legal guidance in the Immigration and Nationality Act and what was in the court decision in determining what constitutes the bona fide relationship.”
“Our goal is to meet the intent of the presidential directive in line with the Supreme Court decision,” the official said, noting, “Waivers still exist, and consular officers still have the ability to waive the inadmissibility for certain types of applicants. I can’t predict how many applicants that will be, however.”
The official said, “we are looking at the court’s decision as we implement this. And there were two different portions to the bona fide relationship. So, we looked at the family relationships. And, again, we used the INA definition of family as our basis for that, in addition to some other language from the ruling. And in terms of the entities with which one can have a relationship, yes, individuals who are students or who have lecturer positions and have an established connection would be able to continue traveling on their visas or likely qualify for visas, again, according to an individual consular officer decision.”
Another senior administration official said,”the guidance that we’ve given to the field is that those folks, refugees who are in transit through July 6th will be able to travel. We’ve defined ‘in transit’ based on the previous work that we’ve done on these executive orders as meaning that they have been booked to travel through July 6th, and then we will have to determine which folks can travel after that date … we have also instructed our posts to use our public guidance as the basis for similar guidance in their countries.”
