Last week, President Donald Trump issued an Executive Order entitled Protecting the Nation From Foreign Terrorist Entry Into the United States, Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017).1 This order included several controversial provisions that may alter American immigration policy.
First, paragraph 3(c) of the Executive Order suspended immigrant and nonimmigrant entry into the United States from countries referred to in 8 U.S.C. § 1187(a)(12) for 90 days “to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals.” The countries affected by this suspension include
- Iraq and Syria;
- countries designated by the Secretary of State as a country whose government has repeatedly provided support of acts of international terrorism; and
- countries or areas of concern designated by the Secretary of Homeland Security.
The Secretary of State has designated three countries as states that have repeatedly provided support for acts of international terrorism: Syria (December 29, 1979), Iran (January 19, 1984), and Sudan (August 12, 1993). The Department of Homeland Security announced that Libya, Somalia and Yemen were added to the list of countries or areas of concern on February 18, 2016. Accordingly, this Executive Order restricts nationals from Iran, Iraq, Libya, Sudan, Syria, Somalia and Yemen from entering the United States for 90 days. However, paragraph 3(g) does provide an exemption if the Secretary of State and Homeland Security determine that issuing a visa or other immigration benefit would be in the national interest. Later, the Counsel to the President issued Authoritative Guidance on Executive Order Entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States” clarifying that Section 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents of the United States.
Secondly, paragraph 5(a) of the Executive Order suspended the U.S. Refugee Admissions Program (USRAP) for 120 days to conduct a review of the “application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admissions do not pose a threat to the security and welfare of the United States[.]” After 120 days, the Secretary of State shall resume USRAP admissions under the revised procedures but only for “nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.”
Additionally, under paragraph 5(b), when USRAP admissions resume, the President directed the Secretary of State and the Secretary of Homeland Security 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 curious part of this paragraph is the limiting phrase after “religious-based persecution.”
Apparently, not all forms of religious-based persecution merit protection. While the order appears to be facially neutral, President Trump explained during his appearance on the Christian Broadcasting Network that his intent was to give “persecuted Christians…priority when it [came] to applying for refugee status in the United States.”
Of course, issuing an executive order that specifically favored persecuted Christian refugees would be problematic, hence we arrive at the current wording about minority religions. If President Trump was solely concerned about the persecution of Christians in the Middle East, then the qualifier does not afford any additional protections to Christian minorities fleeing religious persecution. Within this context, the sole purpose would be to exclude Muslims escaping religious persecution, such as if members of the Sunni majority sought to escape persecution by the Alawite minority in Syria.
Finally, in paragraph 5(c), President Trump declared that the entry of Syrian refugees was “detrimental to the interests of the United States” and suspended their entry until “sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.” Unlike earlier paragraphs, the suspension of Syrian refugees was not accompanied by a defined timeline.
Lawsuits Challenging the Executive Order
The State of Washington, the Arab American Civil Rights League, the Council on American-Islamic Relations, the American Civil Liberties Union of Northern California and other organizations have filed individual lawsuits challenging the Executive Order.
State of Washington v. Trump, No. 2:2017cv00141 (W.D. Wash.). The State of Washington filed a complaint for declaratory and injunctive relief seeking to invalidate President Trump’s executive order. The complaint alleged that the executive order (1) violated the Fifth Amendment by “target[ing] individuals for discriminatory treatment based on their country of origin and/or religion, without lawful justification,” (2) violated the Establishment Clause of the First Amendment by disfavoring Islam and favoring Christianity, (3) deprived individuals of due process under the Fifth Amendment by denying them statutory rights, (4) violated the Immigration and Naturalization Act, which prohibits discrimination in the issuance of immigrant visas on the basis of race, nationality, place of birth or place of residence, (5) violated the Immigration and Naturalization Act by “foreclosing [the] ability [of immigrants and nonimmigrants] to apply for asylum and withholding of removal,” (6) violated the Foreign Affairs Reform and Restructuring Act of 1998 by suspending all immigrants and nonimmigrants from entering the state “from seven countries and foreclosing their ability to apply for relief under the Convention Against Torture,” (7) violated the Religious Freedom Restoration Act by substantially burdening “the exercise of religion by non-citizen immigrants,” and (8) committed a procedural violation of the Administrative Procedure Act by failing to “conduct formal rule making before engaging in action that impacts substantive rights,” and (9) committed a substantive violation of the Administrative Procedure Act by engaging in an action that is arbitrary, unconstitutional, and contrary to statute.
Unite Oregon v. Trump, No. 3:2017cv00179 (D. Or.). Plaintiff Unite Oregon filed a complaint for declaratory and injunctive relief alleging that President Trump’s Executive Order violated the Due Process Clause and the Equal Protection Clause of the Fifth Amendment for denying detained persons at Portland International Airport access to counsel and treating them in a discriminatory manner based on their national origin and religion. Plaintiffs also alleged that the Executive Order violated the Religious Freedom Restoration Act and the Administrative Procedures Act, as well as other federal laws and regulations.
Arab American Civil Rights League v. Trump, No. 2:2017cv10310 (E.D. Mich.). Plaintiff alleged that President Trump’s Executive Order (1) violated the Fifth Amendment by suspending the rights of lawful permanent residents to re-enter the United States without providing due process, (2) violated the Establishment Clause giving preference to Christianity; (3) violated the Equal Protection Clause by discriminating against plaintiffs on the basis of their country of origin and religion without sufficient justification; (4) violated the Fifth Amendment by denying plaintiffs the fundamental right to familial association; (5) violated the Administrative Procedure Act by discriminating against plaintiffs in the issuance of visas on the basis of race, nationality, place of birth and place of residence; and (6) violated the Religious Freedom Restoration Act.
Sarsour v. Trump, No. 1:2017cv00120 (E.D. Va). Council on American-Islamic Relations (CAIR) alleges that President Trump’s executive order violates the Establishment and Free Exercise Clause of the First Amendment by treating Muslims less favorably than other groups, the Fifth Amendment, and the Administrative Procedure Act.
Al-Mowafak v. Trump, No. 3:2017cv00557 (N.D. Cal.). Plaintiffs filed a class action complaint on behalf of all persons who are nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen who currently are, or recently have been, lawfully present in California and who would be able to travel to the United States or leaver and return to the United States but for President Trump’s Executive Order and Provisional Revocation Letter. Plaintiffs are Yemeni and Iranian nationals who hold F-1 student visas and are studying at colleges in California, as well as the American Civil Liberties Union of Northern California (ACLU-NC) and the Jewish Family & Community Services East Bay. Plaintiff alleged that the Executive Order and Provisional Revocation Letter (1) violated the First Amendment rights of the students by discriminating against Muslims and restricted the organizations from speaking and freely associating with the students; (2) violated the Religious Freedom Restoration Act by placing a substantial burden on Muslims’ exercise of religion by withdrawing important immigration benefits from them on account of their religion in a way that was not the least restrictive means of furthering a compelling government interest; (3) violated the equal protection component of the Due Process Clause of the Fifth Amendment by discriminating against plaintiffs on the basis of their country of origin without sufficient justification and were substantially motivated by animus towards Muslims; (4) violated the procedural due process rights in the Fifth Amendment by denying plaintiffs outside the United States the opportunity to re-enter the United States as well as denying plaintiffs within the United States the opportunity to travel outside the United States for fear they will be denied re-entry; (5) violated the 8 U.S.C. § 1152(a)(1)(A) of the Immigration and Nationality Act by discriminating against plaintiffs based on their nationality, place of birth or place of residence ; and (6) violated the Administrative Procedure Act, 5 U.S.C. § 706(2) by revoking visas on a blanket basis with a particularized finding that a visa holder is ineligible.
Additionally, individuals affected by the Executive Order have filed numerous lawsuits across the United States. Many of these follow a similar template. I have not included a lot of them because their complaint was not available from PACER at the time of publication.
Asgari v. Trump, No. 1:2017cv10182 (D. Mass.). Plaintiff, an Iranian national, holds a doctorate degree from École Polytechnique Fédérale de Lausanne in Switzerland and is an expert in genomics, infectious diseases, and computational biology. She was recruited by Dr. Soumya Raychaudhuri of Brigham and Women’s Hospital in Boston to join a world-renowned human genomics laboratory for postdoctoral training on a project with particular focus on tuberculosis progression. Plaintiff was issued a J-1 work-and-study-based exchange visitor visa but was denied boarding despite the temporary restraining order issued in Tootkaboni v. Trump. Plaintiff seeks an order from defendants that instructs the relevant airline to permit plaintiff to travel to Boston.
Tootkaboni v. Trump, No. 1:2017cv10154 (D. Mass.). Plaintiffs associate professors at the University of Massachusetts-Dartmouth are Iranian nationals and lawful permanent residents of the United States. They were detained by U.S. Customs and Border Protection at Logan Airport when they returned to the United States from an academic conference pursuant to President Trump’s Executive Order. Plaintiffs filed a writ for habeas corpus and a complaint for declaratory and injunctive relief alleging that the Order violated their Fifth Amendment procedural and substantive due process rights, the First Amendment Establishment Clause, immigration statutes, the Administrative Procedure Act and Religious Freedom Restoration Act.
Fasihianifard v. Trump, No. 1:2017cv00496 (E.D.N.Y.). Petitioner filed a writ of habeas corpus and a complaint for declaratory and injunctive relief. She was granted a F-2 nonimmigrant visa as a dependent spouse of her husband, who holds an F-1 student visa. She was detained at JFK Airport pursuant to President Trump’s executive order, which petitioner asserts is unlawful as it violates her Fifth Amendment procedural and substantive due process rights, violates the First Amendment Establishment Clause, violates federal immigration statutes, the Administrative Procedure Act and the Religious Freedom Restoration Act.
Hassanpour v. Trump, No. 3:2017cv00270 (N.D. Tex.). Petitioner, an Iranian national, was detained at Dallas/Ft. Worth International Airport when she attempted to enter the United States with an immigrant visa. Petitioner filed a writ of habeas corpus and a complaint for declaratory and injunctive relief on the grounds that the President’s executive order violates her Fifth Amendment procedural and substantive due process rights, the First Amendment Establishment Clause, federal immigration statutes, the Administrative Procedure Act and the Religious Freedom Restoration Act.
Darweesh v. Trump, No. 1:2017cv00480 (E.D.N.Y.). Petitioners, Iraqi nationals, filed for a writ of habeas corpus and a complaint for declaratory and injunctive relief from President Trump’s executive order. Petitioner Darweesh was granted a Special Immigrant Visa because he served the United States as an interpreter, engineer and contractor. Petitioner Alshawi was granted a Follow to Join Visa to rejoin his wife and son, who were granted refugee status due to the family’s association with the United States military. Petitioners allege that (1) Defendant violated the procedural due process rights under the Fifth Amendment by denying them the right to apply for asylum under United States and international law, (2) compelling petitioners to return to a country where they may face torture or persecution violates federal law and the Convention Against Torture and (2) discriminating against petitioners on the basis of the country of origin violates the Equal Protection component of the Fifth Amendment as well as federal immigration law.
Alknfushe v. Trump, No. 1:2017cv00483 (E.D.N.Y.). Petitioner Alknfushe, an Iraqi national with a US IR-5 (Parent) visa, was detained at JFK Airport pursuant to the President’s executive order. Petitioner filed a petition for habeas corpus and a complaint for declaratory and injunctive relief alleging that her detention violated the Fifth Amendment, the Establishment Clause of the First Amendment, immigration statutes, the Administrative Procedure Act and the Religious Freedom Restoration Act.
Sabounchi v. Trump, No. 1:2017cv00486 (E.D.N.Y.). Petitioner, an Iranian national, was granted a B-2 tourist visa to visit her sister. When she arrived in the United States, U.S. Customs and Border Protection detained her and blocked her exit from JFK airport. Plaintiff alleged that Defendant’s executive order violated her Fifth Amendment procedural and substantive due process rights, the First Amendment Establishment Clause, federal immigration statutes, as well as the Administrative Procedure Act and the Religious Freedom Restoration Act.
AlQaissi v. Trump, No. 1:2017cv00487 (E.D.N.Y.). Petitioners, Iraqi nationals, were granted a diversity visa to immigrate to the United States. U.S. Customs and Border Protection allegedly detained them based on the President’s executive order. Petitioners filed a writ for habeas corpus and a complaint for declaratory and injunctive relief alleging that the executive order violates the Fifth Amendment, First Amendment, the Administrative Procedure Act, Religious Freedom Restoration Act, and federal immigration statutes.
1 While the White House publishes Presidential Actions, including executive orders, presidential memoranda, and proclamations, on its website, updates may be delayed. The Federal Register provides a more timely feed of documents from the Executive Office of the President.
2 8 U.S.C. § 1182(f):
(f) Suspension of entry or imposition of restrictions by President
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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.