February 1, 2017
On Monday, January 30, 2017, Gibson Dunn issued a client alert regarding President Trump’s January 27 Executive Order restricting entry into the United States for individuals from certain nations and making other immigration-related policy changes.
This update describes further developments relating to the Executive Order involving (1) coverage of dual citizens; (2) provisional revocation of certain visas; and (3) reciprocal policy changes abroad. It also provides updates on the status of various legal challenges to the Executive Order.[1] In particular, it describes a decision from earlier today that broadly prohibits enforcement of the Executive Order, on an interim basis.
The Department of Homeland Security (“DHS”) announced that dual citizens are not affected by the ban on entry of individuals from the seven countries covered by the Executive Order. According to new guidance, “travelers are being treated according to the travel document they present,” and will be admitted if they “apply for entry based on their citizenship from one of the countries NOT on the list” and are otherwise eligible.[2] The Acting Commissioner of Customs & Border Protection stated that “[t]ravelers will be assessed … based on the passport they present, not any dual-national status. So if you’re a citizen of the United Kingdom, you present your United Kingdom passport and the executive order does not apply to you upon arrival.”[3]
However, as a practical matter, travelers who are also nationals of one of the seven covered countries may be subject to additional screening both when applying for a visa (if applicable) under their non-affected passport, or upon arrival in the United States.
Relatedly, DHS announced that holders of “special immigrant visas” (which could include translators for the U.S. armed forces in Iraq), will be treated similarly to lawful permanent residents from the covered countries. Although covered by the ban, they will generally be allowed entry under the “case-by-case” waiver provision.[4]
On Tuesday, January 31, in one of the cases challenging the Executive Order, the government publicly filed a January 27 Department of State order that “provisionally revoke[d] all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.”[5] It is not currently clear to what extent this order is being enforced. Like the Executive Order, this State Department order recognizes the possibility of exceptions made on a “case-by-case” basis, but does not provide information on the process for obtaining such an exception.
While application of this order remains unclear, revocation of a visa has potentially significant implications. For example, once a nonimmigrant visa is revoked, the visa holder becomes deportable.[6] The rule regarding immigrant visas is less clear, although there is some risk that an immigrant whose visa has been revoked could be subject to deportation.[7] If the government seeks to deport an individual on the basis of a visa revocation, that individual has the right to judicial review prior to removal.[8]
While no guidance has been issued, the order may mean that individuals who entered on a valid multi-entry visa prior to the Executive Order will not be able to enter again under the same visa, even after the 90-day ban expires. Instead, individuals in this category will likely need to obtain a new visa, or a waiver from the revocation. In addition, individuals in the United States under a previously issued visa may be deported.
At least two of the seven nations covered by the Executive Order are implementing or moving toward reciprocal bans on travel from the United States, although details of the scope of these bans, and possible exceptions, are unclear at this time. Iran has announced a ban.[9] Iraq’s parliament has passed a non-binding recommendation to take similar action if the U.S. ban remains in effect, in line with criticism of the Executive Order from the foreign ministry there.[10]
On January 31, the United States District Court for the Central District of California (Hon. André Birotte Jr.) entered an Order enjoining the President, DHS, CBP, and other defendants from enforcing the Executive Order “by removing, detaining, or blocking the entry of Plaintiffs, or any other person from” the seven countries named in the Executive Order “with a valid immigrant visa.” The court further: (i) enjoined the defendants from cancelling the plaintiffs’ validly obtained and issued visas; (ii) ordered the defendants, and the State Department in particular, to return “to Plaintiffs their passports containing validly issued immigrant visas so that Plaintiffs may travel to the United States on said visas,”; and (iii) ordered defendants to immediately “inform all relevant airport, airline, and other authorities at Los Angeles International Airport and International Airport in Djibouti that Plaintiffs are permitted to travel to the United States on their valid immigrant visas.”
Although the court’s order prohibits the “blocking of entry” of anyone from the seven countries who possesses “a valid immigrant visa,” regardless of whether the individual is a plaintiff in the case, it is unclear what impact this will have beyond the named plaintiffs in light of the Department of State’s order provisionally revoking all such visas as discussed above.
Four state governments have also sued to enjoin the Executive Order or moved to intervene in cases challenging the Order, one new class action was filed challenging the Executive Order, and two potentially significant hearings are scheduled for this Friday.
Several States have gone to court to challenge the ban. The State of Washington filed a challenge in the Western District of Washington.[11] Similarly, Massachusetts,[12] Virginia,[13] and New York,[14] moved to join existing lawsuits pending in federal court in their states.
The Northwest Immigrant Rights Project filed a class action in the Western District of Washington seeking invalidation of the Executive Order. Abdiaziz v. Trump, No. 2:17-cv-135.
Finally, two hearings are set for this Friday, February 3. The District of Massachusetts hearing in Tootkaboni v. Trump, No. 17-cv-10154, will further consider the temporary restraining order that court entered last weekend. The Western District of Washington will consider the state government’s request for a temporary restraining order in its recently filed case, State of Washington v. Trump, No. 2:14-cv-141.
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Gibson Dunn will continue to closely monitor these rapidly developing issues.
[1] On January 30, shortly after the release of our earlier client alert, the Acting Attorney General announced guidance that the Justice Department would not defend the Executive Order, explaining that she is not “convinced that the Executive Order is lawful.” (http://documents.latimes.com/message-acting-attorney-general). The White House relieved the Acting Attorney General of her duties, stating that the Acting Attorney General had “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.” See White House, Statement on the Appointment of Dana Boente as Acting Attorney General, Jan. 30, 2017 (https://www.whitehouse.gov/the-press-office/2017/01/30/statement-appointment-dana-boente-acting-attorney-general). The new Acting Attorney General promptly announced that he was rescinding his predecessor’s guidance regarding the Executive Order. See U.S. Dept. of Justice, “Acting Attorney General Boente Issues Guidance to Department on Executive Order,” Jan. 30, 2017 (https://www.justice.gov/opa/pr/acting-attorney-general-boente-issues-guidance-department-executive-order).
[2] U.S. Customs & Border Protection, “Protecting the Nation from Foreign Terrorist Entry into the United States,” Jan. 31, 2017 (https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states).
[3] U.S. Dept. of Homeland Security, “Transcript of Media Availability on Executive Order with Secretary Kelly & DHS Leadership,” Jan. 31, 2017 (https://www.dhs.gov/news/2017/01/31/transcript-media-availability-executive-order-secretry-kelly-and-dhs-leadership).
[4] U.S. Dept. of Homeland Security, “Transcript of Media Availability on Executive Order with Secretary Kelly & DHS Leadership,” Jan. 31, 2017 (https://www.dhs.gov/news/2017/01/31/transcript-media-availability-executive-order-secretry-kelly-and-dhs-leadership).
[5] U.S. Dept. of State, Order, Jan. 27, 2017. This document is not currently available on a government website, but can be found at http://www.politico.com/f/?id=00000159-f6bd-d173-a959-ffff671a0001 .
[6] See 8 U.S.C. § 1227(a)(1)(B) (“Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201(i) of this title, is deportable.”).
[7] See 8 U.S.C. § 1201(i); 22 C.F.R. § 42.82(b); see also 8 U.S.C. § 1227(4)(c)(i) (“An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.”).
[8] 8 U.S.C. § 1201(i) (“There shall be no means of judicial review … of a revocation … except in the context of a removal proceeding if such revocation provides the sole ground for removal…”).
[9] Asas Fitch, et al., “Iran Halts Visas to Americans As Iraq Keeps Doors Open,” Wall Street J., Jan. 31, 2017 (https://www.wsj.com/articles/iran-stops-issuing-visas-to-americans-1485870515).
[10] Qassim Abdul-Zahra, “Iraqi Lawmakers Urge Ban On Americans After Trump Order,” Associated Press, Jan. 30, 2017 (https://www.apnews.com/53228591339c42daa0b27c152c95b630).
[11] Washington State Office of the Attorney General, “AG Ferguson Seeks Halt to Trump’s Immigration Executive Order,” Jan. 30, 2017 (http://www.atg.wa.gov/news/news-releases/ag-ferguson-seeks-halt-trump-s-immigration-executive-order).
[12] Attorney General of Massachusetts, “AG Healey Announces Lawsuit Against President Trump’s Executive Order on Immigration,” Jan. 31, 2017 (http://www.mass.gov/ago/news-and-updates/press-releases/2017/2017-01-31-ag-lawsuit-president-eo.html).
[13] Attorney General of Virginia, “Virginia Brings Action Against President Trump for Unlawful and Unconstitutional Executive Order on Immigration,” Jan. 31, 2017 (http://www.oag.state.va.us/media-center/news-releases/879-january-31-2017-virginia-brings-action-against-president-trump-for-unlawful-and-unconstitutional-executive-order-on-immigration).
[14] Attorney General of New York State, “A.G. Schneiderman Joins Lawsuit Against President Trump’s Immigration Executive Order, Jan. 31, 2017 (https://ag.ny.gov/press-release/ag-schneiderman-joins-lawsuit-against-president-trumps-immigration-executive-order).
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work or any of the following:
Theodore J. Boutrous, Jr. – Los Angeles (+1 213-229-7000, [email protected])
Rachel S. Brass – San Francisco (+1 415-393-8293, [email protected])
Anne M. Champion – New York (+1 212-351-5361, [email protected])
Ethan Dettmer – San Francisco (+1 415-393-8292, [email protected])
Theane Evangelis – Los Angeles (+1 213-229-7726, [email protected])
Kirsten Galler – Los Angeles (+1 213-229-7681, [email protected])
Ronald Kirk – Dallas (+1 214-698-3295, [email protected])
Joshua S. Lipshutz – Washington D.C. (+1 202-955-8217, [email protected])
Katie Marquart, Pro Bono Counsel & Director – New York (+1 212-351-5261,[email protected])
Samuel A. Newman – Los Angeles (+1 213-229-7644, [email protected])
Jason C. Schwartz – Washington D.C. (+1 202-955-8242, [email protected])
Kahn A. Scolnick – Los Angeles (+1 213-229-7656, [email protected])
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