President Trump signed a revised executive order Monday limiting immigration from six Muslim-majority countries.
Unlike the previous order, which went into effect immediately, this one will be implemented in 10 days, on March 16, and excludes Iraq. It also excludes green-card holders, dual nationals and people who have been granted asylum or refugee status.
The new order comes in response to a series of court challenges to the original travel ban, including a unanimous ruling by the U.S. Court of Appeals for the 9th Circuit to continue blocking it.
See how the order has changed:
Due process
The 9th Circuit ruled the original travel ban was unlikely to be upheld in court, finding it violated due process, which requires the government to give sufficient time and opportunity for people affected by the ban to respond. The court found the ban did not give the affected people advance notice of the change to their status or a fair process to contest it.
But there’s a complexity here — different groups have different due-process rights. Permanent residents are entitled to a more robust process than temporary visa holders and refugees, who have more rights than visa applicants, who have more rights than people without American ties, according to Leon Fresco, an immigration lawyer at Holland and Knight.
That means the government can comply with due process by creating a process for recourse or by applying the law only to people with minimal rights.
The new ban took the second path, exempting all current visa holders and allowing affected visa applicants to apply for waivers.
That doesn’t resolve the due-process issue entirely, however. Americans with an “interest” in a specific foreign national being admitted to the country (such as the American’s family members) have due-process rights, according to the 9th Circuit’s ruling. Yet the new ban gives them no clear avenue for recourse.
Since there is no outlined process for those people to petition for their or their family’s lawful entry, the ban may still violate due-process rights, Fresco said.
The original order:
I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
The new order:
Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. … [This] shall apply only to foreign nationals of the designated countries who are outside the United States on the effective date of this order, did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017 and do not have a valid visa on the effective date of this order.
What changed:
The original ban affected all immigrants from the affected countries, including U.S. permanent residents. The new ban exempts current visa holders and those who held visas at the time the original ban was implemented, groups that are entitled to significant due-process rights.
The original order:
I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspendentry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order(excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
The new order:
This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017.
What changed:
The original ban was instated immediately upon the order’s signing, giving visa holders no time to respond and leaving many stranded abroad. The new ban goes into effect 10 days after its signing and exempts current visa holders.
The original order:
Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion[.]
The new order:
I permitted the Secretary of State and the Secretary of Homeland Security to grant case-by-case waiverswhen they determined that it was in the national interest to do so.
What changed:
“Case-by-case” evaluation was a visa holder’s only way to bypass the original ban. Since it was unclear how an individual could get this evaluation or what standards would be used, this was insufficient for due process, according to Fresco. But the use of the word “waiver” in the new ban indicates there will be a more formal process by which barred immigrants can apply for entry. Few specifics are given.
The original order:
The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication 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.
The new order:
The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order … The suspension described in this subsection shall not apply to refugee applicants who, before the effective date of this order, have been formally scheduled for transit by the Department of State.
What changed:
The original order temporarily stopped refugees from entering the country, which violates the due-process rights given to them by the Immigration and Naturalization Act, according to Fresco. The new order exempts people who have already been granted refugee status or have been scheduled for travel.
The original order:
Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
The new order:
Not addressed.
What changed:
The original order also halted the admission of Syrian refugees indefinitely. Just like the more general refugee ban, this violated the refugees’ due-process rights, according to Fresco. The new order makes no specific mention of Syrian refugees, so those who have already been granted refugee status will be able to enter. As under the original order, no refugee applications from any country, including Syria, will be accepted for 120 days.
Religious discrimination
While the court did not rule the original travel ban constituted religious preference, it acknowledged the argument was a “serious allegation” — one that could prevail in a full trial.
The court said the order would run into two constitutional issues. First, the establishment clause of the First Amendment prevents the state from favoring one religion over another — for example, Christians over Muslims. Second, the equal-protection clause of the 14th Amendment mandates that people of different religions be treated the same.
The new order and a related fact sheet do not address the religion of visa applicants, though the the majority of residents in the six countries covered by the ban are Muslim.
Iraq was removed from the list because its “government has expressly undertaken steps to provide additional information about its citizens for purposes of our immigration decisions,“ according to an official Q&A about the new executive order.
The original order:
- Iraq
- Iran
- Libya
- Somalia
- Sudan
- Syria
- Yemen
The new order:
Iraq- Iran
- Libya
- Somalia
- Sudan
- Syria
- Yemen
"We continue to believe the ban is unconstitutional because it does not eliminate the religious discrimination, which was the core problem with the first executive order,” said Lee Gelernt, the deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project.
In its ruling, the 9th Circuit considered previous statements by Trump and his advisers calling the order a “Muslim ban.” On Feb. 13, a Virginia district court issued a preliminary injunction against the order, saying it discriminated against Muslims, largely based on those statements.
The original order:
Upon the resumption of [refugee] admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.
The new order:
Not addressed.
What changed:
The states argued this provision, essentially prioritizing Christians’ immigration from the affected Muslim-majority countries, as evidence the order was intended to be a “Muslim ban.” The new order does not address a religious test.
The original order:
[T]he Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest -- including when the person is a religious minority in his country of nationality facing religious persecution[.]
The new order:
Not addressed.
What changed:
Prioritizing Christian refugees from Muslim-majority countries was similarly argued as evidence the order was a “Muslim ban.” The new order does not address a religious test.
The new order may face additional hurdles if it is challenged in court.
The government must also show, at minimum, that the ban is a rational regulation — that it furthers some legitimate government goal, according to Andrew Schoenholtz, the director of the Human Rights Institute at Georgetown Law. In the court proceedings so far, he said, it has failed to do that. “They’ve got to spell out that [the affected immigrants] are a real risk,” Schoenholtz said.
Gelernt said the burden on the government is even higher. Since the original travel ban constituted religious discrimination, he said, the government must show that the ban will actually prevent terrorists from entering the country and that there is no more-targeted way to do that.
Fresco said he thinks the new ban will probably be challenged in court. Since universities pull talent from the affected countries, they will be unable to get those students going forward. This, Fresco said, gives universities and the states that run them standing to sue.
“Even though this new order is far more narrow than the previous order . . . the current order does not fully account for the 9th Circuit's concern,” Fresco said. “It will be a very close case as to whether any injunction is issued.”
