DHS to exempt lawful permanent residents from Trump travel ban

29 Jan 17

UNITED STATES

On Friday, Jan. 27, President Donald Trump signed an Executive Order suspending nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen from entry to the U.S. The Executive Order took immediate effect, stranding thousands of foreign nationals outside of the U.S. Throughout the weekend, multiple federal courts issued temporary stays blocking parts of the Executive Order. On Sunday night, the Secretary of Homeland Security issued a statement saying that the Department of Homeland Security will deem the entry of all lawful permanent residents (i.e., green card holders) to be in the national interest and will not suspend their entry into the U.S. solely on the basis that they are from a designated country.

Federal Court Litigation

Less than 24 hours after President Trump signed the Executive Order, a federal judge in New York issued an emergency stay blocking the Executive Order. Over the weekend, several other district courts issued stays, which largely mirrored the New York order.

In New York, the American Civil Liberties Union sued on behalf of two Iraqi citizens who were detained at John F. Kennedy International Airport, and asked the court to immediately block the Executive Order. U.S. District Court Judge Ann Donnelly ruled that the plaintiffs met the requirements to put a hold on the Executive Order, including the likelihood of success in proving that the Executive Order violates due process and equal protection. The court’s order enjoins DHS and U.S. Customs and Border Protection from detaining or removing nationals of the seven countries on the basis of the Executive Order.

“There is imminent danger that … there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 27, 2017 Executive Order,” Donnelly wrote in a 3-page order.

Department of Homeland Security Position

Hours after the New York court issued the stay, DHS issued a statement that said “President Trump’s Executive Orders remain in place—prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety.” Later in the statement, DHS indicated that it “will comply with judicial orders; faithfully enforce our immigration laws, and implement the president’s Executive Orders to ensure that those entering the United States do not pose a threat to our country or the American people.”

On Sunday night, the Secretary of Homeland Security issued a statement that said: “In applying the provisions of the president’s executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.” He added 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.”

Based on this statement, lawful permanent residents who are from designated countries should expect additional screening at time of entry, but DHS will deem their entry to be in the national interest and will not suspend their entry into the U.S. solely on the basis that they are from a designated country.

Increased Scrutiny Based on Travel to Designated Countries

On Sunday morning, White House Chief of Staff Reince Priebus was questioned on NBC’s Meet the Press about the scope of the Executive Order and how it was implemented. Priebus stated that “the executive order doesn’t affect green card holders moving forward,” but then went on to say that people who have “traveled back and forth” to those countries, including U.S. citizens, will be subject to additional screening upon their return to the U.S.

BAL Analysis: Due to the ongoing uncertainty surrounding the scope of the Executive Order, and the speed at which developments are occurring, nationals (including dual-nationals) of the designated countries, or people who have traveled to those countries, should consult with their BAL professional before departing the U.S. or seeking to return to the U.S. Lawful permanent residents from designated countries should be allowed to enter the U.S., but should plan on additional screening and delays at time of entry.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@balglobal.com.

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