President Trump’s executive order (EO) titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” has produced a storm of protest. Senate Minority Leader Charles SchumerCharles SchumerLawmakers push one-week stopgap funding bill Cruz: 'Schumer and the Democrats want a shutdown' GOP fundraiser enters crowded primary for Pa. Senate seat MORE (D-N.Y. said in a statement on Friday that “there are tears running down the cheeks of the Statue of Liberty tonight.”
What is in this EO that is so upsetting?
It directs the Secretary of State and the Director of National Intelligence to determine what information is needed from any country to decide whether one of its nationals who is seeking admission to the United States is who he claims to be and is not a security or public-safety threat.
It gives them 30 days to report the results of that determination with a list of countries that do not provide adequate information.
The EO imposes a 90-day suspension of immigrant and nonimmigrant admission of aliens from countries designated in section 217(a)(12) of the Immigration and Nationality Act (INA), which excludes aliens who have been present in a specified country from participating in the Visa Waiver program.
The president’s authority to declare such suspensions can been found in section 212(f) of the INA, the pertinent part of which reads as follows:
"(f) 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."
The 90-day suspension can be waived on a case-by-case basis.
The Department of Homeland Security (DHS) has applied this waiver to the entry of lawful permanent residents. He has stated that, “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 our case-by-case determinations.”
The EO also suspends the Refugee Admissions Program for 120 days to permit the secretaries of the State Department and DHS, and the Director of National Intelligence to review the refugee screening process to determine “what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States” and to implement the additional procedures.
The EO uses the president’s authority under section 212(f) to suspend the entry of nationals of Syria from the refugee program until it has been determined that the new screening procedures are sufficient “to ensure that admission of Syrian refugees is consistent with the national interest.”
Syria has been on the State Sponsors of Terrorism list since that list’s inception on December 29, 1979. Countries are put on this list when the State Department has determined that they have repeatedly provided support for acts of international terrorism.
The State Department also has found that, “Syria is a source and destination country for men, women, and children subjected to forced labor and sex trafficking.”
A federal judge has granted an emergency stay request from the American Civil Liberties Union to bar the deportation of people with valid visas who landed in the U.S. after the EO was issued.
Frankly, I do not understand this judge's order. The issuance of a visa does not guarantee an alien’s admission into the United States. In fact, this is explicitly stated on the State Department’s Frequently Asked Questions site About Visas - The Basics.
"After I have my visa, I will be able to enter the U.S., correct?
"A visa does not guarantee entry into the United States. A visa allows a foreign citizen to travel to the U.S. port-of-entry, and the Department of Homeland Security U.S. Customs and Border Protection (CBP) immigration inspector authorizes or denies admission to the United States."
Nevertheless, it is apparent that the EO will inconvenience many people who are coming here for legitimate purposes, and that is unfortunate.
On the other hand, it also is apparent that President Trump did not exceed his statutory authority over alien admissions with the directives in the EO, and that he issued it to protect the United States and its citizens from foreign nationals who intend to commit terrorist attacks in the United States.
But was it the best way to accomplish that objective?
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
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