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Trump’s Expanded Travel Ban and Other Immigration Madness
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/392843-article-trump%E2%80%99s-expanded-travel-ban-and-other-immigration-madness-by-cyrus-mehta#bio”>
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Cyrus Mehta
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<p>
President Trump has done it again. On January 31, 2020, he used his
extraordinary broad powers under INA § 212(f) to
<a
href=”https://www.whitehouse.gov/presidential-actions/proclamation-improving-enhanced-vetting-capabilities-processes-detecting-attempted-entry/”
>
expand his travel ban
</a>
to six additional countries. The affected countries are Nigeria, Eritrea,
Sudan, Tanzania, Kyrgyzstan and Myanmar. The expanded ban comes about three
years after the first ban. Most of the countries targeted in this ban, like
the first ban, are countries with significant Muslim populations. Even
Myanmar, where Buddhists constitute the majority, has a significant
minority population comprising Muslims including the persecuted Rohingya
people. The administration has spuriously argued that the new travel ban is
vital to national security and the ban will remain “until those countries
address their identified deficiencies” related to security and
information-sharing issues. Even if this is the case, it is not sufficient
justification to impose a travel ban on unsuspecting countries without
warning and on those who have applied to immigrate to the US.
</p>
<p>
Unlike the first ban, the new ban only restricts immigrants from Burma,
Eritrea, Kyrgyzstan and Nigeria. The restrictions on Sudan and Tanzania are
narrower as they only apply to immigrants who have won green cards under
the diversity program. The new ban does not apply to nonimmigrants who
visit the US temporarily such as tourists, students or workers under
specialized work visa programs such as the H-1B for specialty occupations
or L-1 for intracompany transferees. It will also not apply to special
immigrants who have been helpful to the US such as employees of US consular
posts. Banning immigrants and not nonimmigrants does not make sense at all.
If the administration is so concerned about US security, then those granted
immigrant visas are more vetted than those who travel on temporary
nonimmigrant visas. A terrorist is more likely to quickly get into the US
on a temporary visa to cause harm. The justification that the
administration has provided is that it is harder remove immigrants from the
US is also spurious from a security perspective since all noncitizens are
subject to the same removal process, able to contest the charges against
them and are eligible for relief from removal. People placed in removal can
remain in the US until they exhaust all their appeals. Also the
justification to restrict immigrants from Tanzania and Sudan who have won
green card lotteries makes even less sense. Why would one who has won the
lottery in Sudan and Tanzania pose more of a risk than someone who is
immigrating on another basis?
</p>
<p>
In 2018 the Supreme Court in
<em>
<a
href=”http://blog.cyrusmehta.com/2018/07/threading-the-needle-challenging-trumps-travel-ban-despite-trump-v-hawaii.html”
>
Trump v. Hawaii
</a>
</em>
upheld a
<a
href=”https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/”
>
third version of the ban
</a>
, after the previous versions were challenged in court, on the ground that
the third version was neutral as it did not violate the First Amendment
Clause of the Constitution despite Trump’s
<a
href=”https://www.washingtonpost.com/news/post-politics/wp/2017/05/20/i-think-islam-hates-us-a-timeline-of-trumps-comments-about-islam-and-muslims/”
>
utterances in favor of banning Muslims
</a>
. For instance, in his presidential campaign he called for a “total and
complete shutdown of Muslims entering the United States. “ He also said,
among other derogatory statements, that “Islam hates us.” This expanded ban
too targets Muslim countries, and allows Trump to fulfill his campaign
promise to his supporters to ban nationals from Muslim countries. This is
why the first ban was rightly called the Muslim ban, and the new ban, also
ought to be called the expanded Muslim ban.
</p>
<p>
Before Trump, one could hardly imagine that an American president would use
INA § 212(f) to rewrite immigration law in a manner he saw fit and with
whatever prejudices might be harboring in his mind. While INA § 212(f) does
give extraordinary power to a president, Trump has exploited these powers
beyond what could have been imagined when Congress enacted this provision.
INA §212(f) states:
</p>
<blockquote>
<p>
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 or any class of aliens as immigrants or nonimmigrants,
or impose on the entry of aliens any restrictions he may deem to be
appropriate
</p>
</blockquote>
<p>
In the expanded ban, Trump has blocked people who have won green card
lotteries under the DV program. This is a program that Trump and
immigration restrictionists in his administration clearly disfavor, but he
has used INA § 212(f) to obliterate the green card provisions in the INA
for Tanzanians and Sudanese. Trump has also openly indicated his animosity
towards immigrants who come from “shi*hole” countries. It is hardly
surprising that Trump, bolstered by a Republican dominated Senate that will
likely acquit him for brazen corruption, is abusing his power under INA §
212(f) to reshape immigration law as he sees fit. Congress in enacting INA
§ 212(f) would have never conceived that a future president could use the
provision to block green card lottery winners. Trump can decide, based on
whatever prejudice he has, that anything is “detrimental to the interests
of the United States.” It is eerily uncanny that Trump’s lawyers have
mounted a similar defense in his impeachment trial, especially Alan
Dershowitz, who nonsensically argued that “If a President does something
which he believes will help him get elected in the public interest, that
cannot be the kind of quid pro quo that results in impeachment.”
</p>
<p>
Trump has used INA § 212(f) to reshape immigration laws enacted by Congress
that have nothing to do with travel bans and national security. On November
9, 2018, he issued another
<a
href=”https://www.whitehouse.gov/presidential-actions/presidential-proclamation-addressing-mass-migration-southern-border-united-states/”
>
Proclamation
</a>
invoking INA § 212(f), which banned people who cross the Southern border
outside a designated port of entry from applying for asylum in the United
States. The Department of Justice and Department of Homeland Security
followed by jointly issuing a
<a
href=”https://www.federalregister.gov/documents/2018/11/09/2018-24594/aliens-subject-to-a-bar-on-entry-under-certain-presidential-proclamations-procedures-for-protection”
>
rule
</a>
implementing the proclamation. The key issue is whether INA § 212(f)
allowed a president like Trump with authoritarian impulses to override
entire visa categories or change the US asylum system? INA § 208(a)(1)
categorically allows any alien who is physically present in the United
States to apply for asylum regardless of his or her manner of arrival in
the United States “whether or not at a designated port of arrival.” Trump
attempted to change that by virtue of the authority given to him in INA §
212(f) by not allowing people who cross outside a port of entry from
applying for asylum. Never mind that the administration had virtually
closed the designated ports of entry for asylum seekers, which forced them
to cross the border through irregular methods. In
<em>
<a
href=”https://scholar.google.co.uk/scholar_case?case=5205159031026241007&hl=en&as_sdt=6&as_vis=1&oi=scholarr”
>
East Bay Sanctuary Covenant v. Trump
</a>
</em>
, 932 F.3d 742 (2018), the Ninth Circuit concluded that the Trump
administration had unlawfully done what the “Executive cannot do directly;
amend the INA”. Indeed, even in <em>Trump v. Hawaii</em>, the
administration successfully argued that INA § 212(f) only supplanted other
provisions that allowed the administration to bar aliens from entering the
United States, but did not expressly override statutory provisions. Thus,
INA § 212(f) could not be used as a justification to override INA § 208.
The
<a href=”https://www.supremecourt.gov/opinions/18pdf/19a230_k53l.pdf”>
Supreme Court has temporarily
</a>
stayed the injunction in a related case that prohibits asylum seekers on
the Southern border from applying for asylum in the US if they have not
applied in Mexico or Guatemala – and thus by implication <em>East Bay Sanctuary Covenant v. Trump</em> – from taking effect until
the government’s appeal in the Ninth Circuit and Supreme Court is decided.
There has been no ruling on the merits of the case.
</p>
<p>
On October 3, 2019, Trump yet again invoked INA § 212(f) by issuing a
<a
href=”https://www.whitehouse.gov/presidential-actions/presidential-proclamation-suspension-entry-immigrants-will-financially-burden-united-states-healthcare-system/”
>
Proclamation
</a>
to ban intending immigrants from entering the United States if they did not
have health insurance within 30 days of their arrival in the United States.
Under the Proclamation, an intending immigrant who has satisfied all
statutory requirements set out in the INA will nevertheless be permanently
barred from entering the United States if that person cannot show, to the
satisfaction of a consular officer, that he or she either “will be covered
by approved health insurance” within 30 days of entering the United States,
or “possesses the financial resources to pay for reasonably foreseeable
medical costs.” A
<a
href=”http://blog.cyrusmehta.com/2019/11/trump-is-not-king-cannot-rewrite-public-charge-law-through-executive-fiat.html”
>
federal district court in Oregon temporarily blocked
</a>
the health insurance proclamation through a nationwide injunction by
relying on <em>East Bay Sanctuary Covenant v. Trump</em>, supra, which
specifically held that a president cannot rely on INA § 212(f) to amend the
INA. In the health insurance case, Trump’s proclamation contradicts the
public charge provision under INA 212(a)(4), which does not have a health
insurance requirement. The
<a
href=”http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/20/19-36020.pdf”
>
Ninth Circuit has upheld the temporary order
</a>
of the Oregon district court, although it has a strong dissent by Judge
Bress criticizing the Oregon district court’s finding that INA $ 212(f) was
unconstitutional under the nondelegation doctrine. Under this doctrine,
associated with separation of powers, Congress cannot delegate legislative
powers to the president under INA § 212(f). This argument needs to be
watched more closely as it is bound to play out further when the
administration defends its authority under INA § 212(f) in this case and
other cases. The Supreme Court has not yet intervened in this case.
</p>
<p>
The new travel ban is bound to be challenged in federal district courts,
and one or more courts may issue nationwide injunctions. The Trump
administration, like in other instances, will likely take this to the
Supreme Court and request a stay of the injunction. Most recently, the
<a href=”https://www.supremecourt.gov/opinions/19pdf/19a785_j4ek.pdf”>
conservative majority in the Supreme Court stayed the injunction
</a>
of a New York district court, which was confirmed by the Second Circuit,
against the public charge rule. Justice Gorsuch wrote a concurring opinion
along with Justice Thomas that was critical of nationwide injunctions of
this sort. The concurrence complained that a single judge enjoined the
government from applying the new definition of public charge to everyone
without regarding to participation in this lawsuit, and that they are
“patently unworkable” and sow chaos. It could also be argued that Justice
Gorsuch’s lifting of a nationwide injunction would sow chaos if a law that
is potentially inconsistent with a statute or unconstitutional is
implemented until it is found so by the Court. And here, in the instant
case, there is even further chaos as the public charge rule is being
implemented everywhere after the stay of the injunction expect in Illinois.
Nationwide injunctions, according to
<a href=”https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3457701″>
Mila Sohoni
</a>
, a professor at the University of San Diego law school, are not a recent
phenomenon and this practice goes all the way back to the 19<sup>th</sup>
century.
</p>
<p>
Notwithstanding all the barriers and obstacles, including the admonition
against nationwide injunctions by Justice Gorsuch and the prior <em>Trump v. Hawaii</em> ruling, it is imperative that the limits to INA §
212(f) be challenged as Trump can use this provision to radically transform
immigration laws enacted by Congress, and without going through Congress to
amend laws that he does not like. A challenge to the expanded ban will
again give courts the ability to examine INA § 212(f). The Supreme Court,
disappointingly, held in
<em>
<a
href=”https://scholar.google.com/scholar_case?case=16062632215534775045&hl=en&as_sdt=6&as_vis=1&oi=scholarr”
>
Trump v. Hawaii
</a>
</em>
that INA § 212(f) “exudes deference to the President” and thus empowers him
to deny entry of noncitizens if he determines that allowing entry “would be
detrimental to the interests of the United States.” One should however
still give credit to prior lower federal court decisions that blocked the
first and second versions of the travel ban, on the grounds that Trump
exceeded INA § 212(f), which were far worse than the watered down third
version that was finally upheld. Although the Supreme Court may have stayed
the injunction in <em>East Bay Sanctuary Covenant v. Trump</em>, it has not
ruled on the merits of the Ninth Circuit’s reasoning that Trump could not
use INA § 212(f) to rewrite asylum law in the INA. The Supreme Court is yet
to hear any challenge to the health insurance proclamation. The Ninth
Circuit in both these cases did not disapprove of the reasoning by district
court judges that Trump overstepped his authority notwithstanding the
powers given to him under INA § 212(f).
</p>
<p>
In issuing the expanded travel ban, which takes effect on February 21,
2020, Trump has abused his authority in selectively blocking immigrants
from predominantly African nations. This ban too, like the last one, will
equally impact US citizens who have legitimately sponsored family members
under the law as they will not be prevented from reuniting in the US. The
ban also arbitrarilyy, and without foundation, blocks green card lottery
winners from two nations.
<a
href=”https://www.vox.com/policy-and-politics/2020/2/1/21116879/trump-travel-ban-nigeria-immigration”
>
Nigerians will be most impacted
</a>
by the new ban as they by far make up the largest number of African
immigrants in the US, numbering approximately 327,000. A connection between
Trump’s ban and Nigeria can be made to a meeting in the Oval Office in June
2017 when Trump told his advisers in the Oval Office in June 2017 that
Nigerians who set foot in the US would never “go back to their huts” in
Africa. This ban will result in the isolation of the US while other
countries will benefit. The new ban also does nothing to enhance US
national security. Since it does not apply to nonimmigrant visa entries, US
citizens who are not yet married to their spouses in any of the newly
banned countries may file a nonimmigrant K-1 visa fiance petition. Once the
fiance enters the US on a K-1 fiance visa, they can marry the US citizen
and adjust status to permanent residence. It makes no sense for a person
from a banned country to delay a marriage with a US citizen in order to be
eligible for a K-1 fiance visa, but this is what Trump’s illogical ban
forces them to do in addition to making every national of the banned
country a suspect.
</p>
<p>
In approving Trump’s first travel ban, the majority in <em>Trump v. Hawaii</em> made reference to
<em>
<a href=”https://supreme.justia.com/cases/federal/us/323/214/case.html”>
Korematsu v. United States
</a>
</em>
, 323 U.S. 214 (1944). This was the shameful Supreme Court case that
allowed the internment of Japanese Americans after the attack on Pearl
Harbor in 1941. Justice Sonia Sotomayor referencing this decision in her
powerful dissent in <em>Trump v. Hawaii</em>. Justice Sotomayor found
striking parallels between <em>Korematsu</em> and Trump’s travel ban. For
example, they were both based on dangerous stereotypes about particular
groups’ inability to assimilate and their intent to harm the United States.
In both cases, there were scant national security justifications. In both
cases, there was strong evidence that there was impermissible animus and
hostility that motivated the government’s policy. The majority rejected the
dissent’s comparison of Trump’s supposedly facially neutral travel ban to<em>Korematsu</em>, but still took this opportunity to overrule <em>Korematsu</em>. Yet, when one carefully reviews Trump’s motivations
behind the travel bans, especially after the second one, they are not too
different from the motivations that resulted in the forced internment of
Japanese Americans. Indeed, Justice Sotomayor astutely reaffirmed that
“[t]he United States of America is a Nation built upon the promise of
religious liberty.” In her rejection of the legality of the travel ban, she
observed that “[t]he Court’s decision today fails to safeguard that
fundamental principle. It leaves undisturbed a policy first advertised
openly and unequivocally as a ‘total and complete shutdown of Muslims
entering the United States’ because the policy now masquerades behind a
façade of national-security concerns.”
</p>
<p>
It is time to revisit the Supreme Court’s overruling of <em>Korematsu</em>
in <em>Trump v. Hawaii</em>. In that case, the Supreme Court opined that
the first travel ban was facially neutral and took pains to distinguish it
from the repugnant <em>Korematsu </em>decision. The second travel ban
confirms that the first ban was not neutral, and this ban, along with the
first one is strikingly similar to <em>Korematsu</em>. Since the first ban
took effect, thousands of intending immigrants from the banned countries,
from infants to elderly parents, have been needlessly impacted and they
pose no threat to national security. The waivers in the first ban are a
sham and are seldom granted. The waivers incorporated in the second ban
will also be a sham. INA § 212(f) must have limits, courts must hold,
including the Supreme Court someday. Otherwise, Trump’s travel bans and
other sorts of immigration madness will have no limits.
</p>
<p>This post originally appeared on <a href=”http://blog.cyrusmehta.com/2020/02/trumps-expanded-travel-ban-and-other-immigration-madness.html” target=”_blank”>The Insightful Immigration Blog</a>. Reprinted with permission.</p>
<hr/><h4>
<a name=”bio”></a>
About The Author<br/>
</h4>
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<p>
<b>Cyrus Mehta</b> is the Founder and Managing Partner of Cyrus D. Mehta & Partners, PLLC (CDMP). He represents corporations and individuals from around the world in business and employment immigration, family immigration, consular matters, naturalization, federal court litigation and asylum. He also advises lawyers on ethical issues. Based on over 25 years of experience in immigration law, he is able to comprehend all kinds of problems and provide effective, ethical and strategic solutions to his clients. He is also an Adjunct Professor of Law at Brooklyn Law School where he teaches a course, Immigration and Work.
</p>
<!–END AUTHOR BIO–>
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