Executive Order 13780

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Executive Order 13780
Protecting the Nation from Foreign Terrorist Entry into the United States
Seal of the President of the United States
President Trump signing the revised order
in the Oval Office
Executive Order 13780.pdf
Executive Order 13780 in the Federal Register
Type Executive order
Executive Order number 13780
Signed by Donald Trump on March 6, 2017 (2017-03-06)
Federal Register details
Federal Register document number 2017-04837
Publication date March 9, 2017 (2017-03-09)
Document citation 13209
Summary
  • Revokes and replaces Executive Order 13769
  • Suspends the U.S. Refugee Admissions Program for 120 days (expires 27/10/2017)*
  • Restricts admission and halts new visa applications of citizens from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days (expires 27/09/2017)*
  • Orders list of countries for entry restrictions after 90 days
  • Suspends admission of refugees for 120 days (expires 27/10/2017)*
  • Other provisions

*Effective since June 29, 2017

Executive Order 13780, titled Protecting the Nation from Foreign Terrorist Entry into the United States, is an executive order signed by United States President Donald Trump on March 6, 2017, that places limits on travel to the U.S. from certain countries, and by all refugees who do not possess either a visa or valid travel documents. According to its terms on March 16, 2017, this executive order revoked and replaced Executive Order 13769 issued January 27, 2017. Trump has called the new order a "watered down, politically correct version" of the prior executive order.[1][2]

On March 15, 2017, Judge Derrick Watson of the United States District Court for the District of Hawaii issued a temporary restraining order enjoining the government from enforcing several key provisions of the order (Sections 2 and 6). By taking into account evidence beyond the words of the executive order itself, the judge reasoned the executive order was likely motivated by anti-Muslim sentiment and thus breached the Establishment Clause of the United States Constitution. On the same date, Judge Theodore Chuang of the United States District Court for the District of Maryland reached a similar conclusion (enjoining Section 2(c) only). The Department of Justice stated that it "will continue to defend [the] Executive Order in the courts".[3] Shortly following arguments from the State of Hawaii and the Department of Justice, the restraining order was converted by Watson into an indefinite preliminary injunction on March 29.[4][5] The federal appeals court in Richmond, Virginia, refused on May 25, 2017 to reinstate the ban, citing religious discrimination.[6] On June 1, 2017, the Trump administration appealed to the U.S. Supreme Court for the cancellation of the preliminary injunctions and to allow the order to go into effect while the court looks at its ultimate legality later in the year.[7]

On June 26, 2017, the Supreme Court partially lifted the halt and will hear oral arguments for the petition to vacate the injunctions in the fall.[8]

Provisions and effect

At 12:01am EDT on March 16, 2017, Executive Order 13780 revoked and replaced Executive Order 13769.[9] Sections 2 and 6 were enjoined by Judge Watson’s temporary restraining order in Hawaii v. Trump before they could take effect.[10][11] Among other things, Section 6 would set the number of admissible refugees and Section 2 would prohibit immigration from six countries. Section 15(a) contemplates that even if part(s) of the executive order are held invalid, other parts of the order still go into effect.[12] The order would reduce the number of refugees to be admitted into the United States (in 2017) to 50,000 and suspend the U.S. Refugee Admissions Program (USRAP) for 120 days, after which the program would be conditionally resumed for individual countries. The order would direct some cabinet secretaries to suspend entry of nationals from countries who do not meet adjudication standards under the Immigration and Nationality Act. Homeland Security lists these countries as Iran, Libya, Somalia, Sudan, Syria, and Yemen, with Iraq being removed compared with Executive Order 13769.[12][13][14]

On May 4, 2017, the United States Department of State proposed a new form, DS-5535, to collect additional information from all visa applicants "who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities".[15][16] The new form implemented the directive of Executive Order 13780 to implement additional protocols and procedures focusing on "ensur[ing] the proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits".[15][16] The public was given fourteen days to comment on the proposed form. 55 academic and scientific organizations cosigned a letter, stating that while they appreciate and support the nation's security needs, the proposed form "is likely to have a chilling effect" on all travelers to the United States due to uncertainties and confusion regarding the supplemental questions and by delaying processing travelers who have strict deadlines and enrollment dates.[15][16] The organizations said the form was unclear in the criteria for determining who would complete the form, the impact of unintentional incomplete disclosure of information, methods to correcting information initially provided, how and for how long the information would be stored and kept private.[15][16]

Section 3: Scope and implementation of the suspension

Section 3 outlines many exceptions to suspensions of immigration that the order requires.

Exceptions

The order does not apply to international travelers from the six named countries who are:

Citation Individual Exceptions listed in Executive Order 13780
3(b)(i) Any lawful permanent resident of the United States.[12]
3(b)(ii) Any foreign national who is admitted to or paroled into the United States on or after the effective date of this order.[12]
3(b)(iii) Any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document.[12]
3(b)(iv) Any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country.[12]
3(b)(v) Any foreign national traveling on a diplomatic or diplomatic type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa.[12]
3(b)(vi) Any foreign national who has been granted asylum.[12]
3(b)(vi) Any refugee who has already been admitted to the United States.[12]
3(b)(vi) Any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.[12]

Case-by-case determinations

The order allows exceptions to the entry ban to be reviewed on a case-by-case basis for the Department of Homeland Security and the Department of State to issue waivers or approval of a visa for travelers from the countries of concern stated in the order. The order allows case-by-case waivers if:

Citation Case-by-Case Exceptions listed in Executive Order 13780
3(c)(i) The foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity.[12]
3(c)(ii) The foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity.[12]
3(c)(iii) The foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations.[12]
3(c)(iv) The foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship.[12]
3(c)(v) The foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case.[12]
3(c)(vi) The foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government.[12]
3(c)(vii) The foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. § 288, traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA.[12]
3(c)(viii) The foreign national is a landed immigrant of Canada who applies for a visa at a location within Canada.[12]
3(c)(ix) The foreign national is traveling as a United States Government-sponsored exchange visitor.[12]

Section 4: Additional inquiries related to nationals of Iraq

Although Iraq was removed from the list of seven countries included in Executive Order 13769, this section still calls for a "thorough review".

Section 8: Expedited completion of the biometric entry–exit tracking system

Under Section 8 of Executive Order 13780, the head of DHS must "expedite the completion and implementation of a biometric entry–exit tracking system for in-scope travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States." Gary Leff, an airline-industry expert, referring to a 2016 DHS publication, believes it is likely the term "in-scope" refers to all non-U.S. citizens within the ages of 14 and 79, which Leff believes will increase the costs (money and time) of air travel perhaps due to fingerprinting requirements for all such people who travel into the U.S.[17][18]

Statutory authorization and related statutory prohibitions

Visas issued in 2016 for the seven countries affected by section 3 of the executive order. Total is shown by size, and color breaks down type of visa[19]

The order cites paragraph (f) of Title 8 of the United States Code § 1182 which discusses inadmissible aliens. Paragraph (f) states:

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.[20]

When Judge Chuang enjoined part of the executive order he based his decision in part on paragraph (a) of Title 8 of the United States Code § 1152, which discusses impermissible discrimination when granting immigrant visas:

No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.

Legal challenges

Hawaii v. Trump

State of Hawaii v. Donald J. Trump
United States District Court for the District of Hawaii
Full case name State of Hawaii and Ismail Elshikh, Plaintiffs, v. Donald J. Trump, in his official capacity as President of the United States of America, et al., Defendants
Citations No. 1:17-cv-00050

On March 7, 2017, the State of Hawaii brought a civil action challenging the executive order, asking for declaratory judgment and an injunction halting the order.[21][22] The State of Hawaii moved for leave to file an Amended Complaint pertaining to Executive Order 13780.[23][24][25] Doug Chin, Hawaii’s attorney general, publicly stated, "This new executive order is nothing more than Muslim Ban 2.0. Under the pretense of national security, it still targets immigrants and refugees. It leaves the door open for even further restrictions.”[26] Hawaii’s legal challenge to the revised ban cites top White House advisor Stephen Miller as saying the revised travel ban is meant to achieve the same basic policy outcome as the original.[27]

The Amended Complaint lists eight specific causes of action pertaining to Executive Order 13780:

  1. Violation of the First Amendment Establishment Clause claiming the travel ban targets Muslims
  2. Violation of the Fifth Amendment Equal Protection clause
  3. Violation of the Fifth Amendment Substantive Due Process clause
  4. Violation of the Fifth Amendment Procedural Due Process
  5. Violation of the Immigration and Nationality Act 8 U.S.C. § 1152(a)(1)(A) and 8 U.S.C. § 1182(f) and 8 U.S.C. § 1185(a)
  6. Violations of the Religious Freedom Restoration Act 42 U.S.C. § 2000bb-1(a)
  7. Substantive Violation of the Administrative Procedure Act through Violations of the Constitution, Immigration and Nationality Act, and Arbitrary and Capricious Action 5 U.S.C. § 706(2)(A)–(C).
  8. Procedural Violation of the Administrative Procedure Act 5 U.S.C. § 706(2)(D), 5 U.S.C. § 551(1), and 5 U.S.C. § 553

On March 15, 2017, United States District Judge Derrick Watson issued a temporary restraining order preventing sections 2 and 6 of executive order 13780 from going into effect.[28][10][11] In his order, Judge Watson ruled that the State of Hawaii showed a strong likelihood of success on their Establishment Clause claim in asserting that Executive Order 13780 was in fact a "Muslim ban". Judge Watson stated in his ruling, "When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs. Nationwide relief is appropriate in light of the likelihood of success on the Establishment Clause claim."[29][11] He also stated, concerning the Order's neutrality to religion, that the government's position that Courts may not look behind the exercise of executive discretion and must only review the text of the Order was rejected as being legally incorrect,[11]:31-32 and that:

The notion that one can demonstrate animus [ill-will] toward any group of people only by targeting all of them at once is fundamentally flawed. [...] It is a discriminatory purpose that matters, no matter how inefficient the execution. Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries. It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%.[11]:31

In drawing its conclusion, the Court further quoted the Ninth Circuit appeal ruling on the original Executive Order (13769): "It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims", and quoted in support of its findings, previous rulings that "Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality" (Church of the Lukumi Babalu Aye v. City of Hialeah); "a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions" (Larson v. Valente); and that "circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose" (Village of Arlington Heights v. Metropolitan Housing); ending with a comment that "the Supreme Court has been even more emphatic: courts may not 'turn a blind eye to the context in which [a] policy arose' " (McCreary County v. ACLU of Kentucky, ruled that a law becomes unconstitutional under the Establishment Clause if its "ostensible or predominant purpose" is to favor or disfavor any religion over any other[30]).[11]:32 The Court also took into account numerous statements by the President and his team prior to and since election, which had directly stated that he sought a legal means to achieve a total ban on Muslims entering the United States,[11]:33–37 and a "dearth" of substantive evidence in support of the stated security benefits.

After Judge Watson's ruling a Department of Justice spokeswoman said the administration will continue to defend the executive order in the courts.[31] President Trump denounced the ruling as "an unprecedented judicial overreach", and indicated that the decision would be appealed, if necessary to the Supreme Court, stating that, "We're talking about the safety of our nation, the safety and security of our people. This ruling makes us look weak."[32][33]

Judge Alex Kozinski of the Ninth Circuit Court of Appeals filed a late dissent on March 17, 2017 to the Ninth Circuit's opinion in Washington v. Trump arguing against the State of Washington’s Establishment Clause claims on grounds that Trump’s speech during the campaign was political speech protected by the First Amendment. Even though the Ninth Circuit had declined to address that issue in reaching its ruling on Washington v. Trump and U.S. courts do not typically rule on issues that are not before them, Kozinski argued it was appropriate for him to address the issue because District Judge Watson in Hawaii had cited the Ninth Circuit opinion in reaching its Establishment Clause ruling.[34][35]

On March 29, 2017, Judge Watson extended his order blocking the ban for a longer duration.[36] The DOJ appealed this ruling.[37] On May 15, a panel of the Ninth Circuit heard arguments on whether to uphold the nationwide injunction.[38][39] Acting Solicitor General of the United States Jeffrey Wall and Hawaii's attorney, Neal Katyal, appeared before Circuit Judges Ronald M. Gould, Michael Daly Hawkins, and Richard Paez for an hour of oral arguments in Seattle's William Kenzo Nakamura United States Courthouse.[40]

On June 12, 2017, a unanimous panel of the Ninth Circuit partially upheld Judge Watson's injunction.[41][42] In its anonymous per curiam decision, the court found President Trump's order violated the relevant statute, and so must be enjoined. However, the court found Judge Watson should have avoided the constitutional question, and that he should not have enjoined the purely internal government vetting review.[43]

On June 19, 2017, Judge Watson complied with the decision of the Ninth Circuit and curtailed the injunction such that the injunction would exempt, "internal review procedures that do not burden individuals outside of the executive branch of the federal government."[44]

International Refugee Assistance Project v. Trump

On[45] the same date that Judge Watson in Hawaii blocked parts of the order Judge Theodore D. Chuang of the U.S. District of Maryland, who was formerly Deputy General Counsel for the Department of Homeland Security, issued a temporary restraining order that blocked the revised executive order’s section 2(c), which would have banned travel to the U.S. by citizens from six designated countries.[46][47] The basis of Judge Chuang's order is violation of the Establishment Clause of the United States Constitution. Judge Chuang also noted that the order was in violation of the Immigration and Nationality Act of 1965, which modifies the Immigration and Nationality Act of 1952 to say "No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence," but only in that it placed a ban on immigrant visa issuance based on nationality. Judge Chuang noted that the statute does not prohibit the President from barring entry into the United States or the issuance of non-immigrant visas on the basis of nationality.[47][48] The Trump Administration appealed the ruling to the United States Court of Appeals for the Fourth Circuit, which scheduled oral argument for May 8; the Justice Department has said it will file a motion to encourage the court to rule sooner.[49] On March 31, approximately 30 top U.S. universities filed an amicus brief with the Fourth Circuit opposing the travel ban.[50][51]

On May 8, acting Solicitor General of the United States Jeffrey Wall and American Civil Liberties Union attorney Omar Jadwat appeared before the 13-judge en banc Fourth Circuit for two hours of oral arguments in Richmond, Virginia's Lewis F. Powell Jr. United States Courthouse. Judges J. Harvie Wilkinson III, whose daughter is married to Wall, and Allyson Kay Duncan recused themselves.[52][53]

On May 25, the Fourth Circuit upheld the March ruling of the Maryland district court, continuing the block of the travel ban by a vote of 10-3 because it violated the Establishment Clause of the United States Constitution.[54][55]

The acting Solicitor General next applied for a stay of execution from the Supreme Court of the United States, which then scheduled all briefing to be concluded by June 21, the day before the Court's last conference of the term. Hawaii's outside counsel in a related case, Neal Katyal, told the Court he was "in Utah with very little internet access" for the rest of the week, so it granted him an extra day to file the state's response brief.[56]

Washington v. Trump

State of Washington and State of Minnesota v. Trump
United States District Court for the Western District of Washington
Full case name State of Washington and State of Minnesota, Plaintiffs, v. Donald J. Trump, in his official capacity as President of the United States; U.S. Department of Homeland Security; John F. Kelly, in his official capacity as Secretary of the Department of Homeland Security; Tom Shannon, in his official capacity as Acting Secretary of State; and the United States of America, Defendants.
Citations No. 2:17-cv-00141; No. 17-35105

On the day the order was signed, March 6, 2017, Washington Attorney General Bob Ferguson stated that he had not yet had sufficient time to review it.[21]

On March 9, Ferguson indicated that the State of Washington will pursue obtaining a temporary restraining order and a preliminary injunction to block the executive order. Ferguson publicly stated, "It's my duty, my responsibility to act. We're not going to be bullied by threats and actions by the federal government". The State of Washington indicated they would ask for a temporary restraining order and a preliminary injunction in the current proceedings related to executive order 13769 by asking the Court for leave to file an amended complaint to address executive order 13780.[57][58] Ferguson also indicated that the states of Oregon, Massachusetts, and New York would ask for leave from the Court to join the current lawsuit against the executive order.[57][59][60]

On March 9, 2017, White House press secretary Sean Spicer responded to the criticism of the order from several state attorney generals, and stated that the White House was confident the new order addressed the issues raised by the states in litigation involving the previous Executive Order 13769. Spicer stated, "I think we feel very comfortable that the executive order that was crafted is consistent with—we’re going to go forward on this—but I think by all means, I don’t—we feel very confident with how that was crafted and the input that was given”.[61][62]

The federal defendants argued the new order “does not limit the [federal] government’s ability to immediately begin enforcing the new executive order”, while the State of Washington has replied that “While the provisions differ slightly from their original incarnation, the differences do not remove them from the ambit of this court's injunction”. As of the evening of March 10, neither side had filed a motion to uphold or stop the new order, and Judge Robart said he would not rule on the matter without one.[63]

On March 13, 2017, the Washington State Attorney General filed a second amended complaint addressing executive order 13780 and moved the court to enjoin enforcement of the order under the current preliminary injunction previously issued which barred enforcement of executive order 13769 by filing a motion for emergency enforcement of the preliminary injunction.[64][65] The State of Washington in their second amended complaint asked the Court to Declare that Sections 3(c), 5(a)–(c), and 5(e) of the First Executive Order 13769 are unauthorized by and contrary to the Constitution and laws of the United States, and that the United States should be enjoined from implementing or enforcing Sections 3(c), 5(a)–(c), and 5(e) of the First Executive Order, including at all United States borders, ports of entry, and in the issuance of visas, pending further orders from this Court. The State of Washington also asked the Court to declare that Sections 2(c) and 6(a) of the Second Executive Order 13780 are unauthorized by and contrary to the Constitution and laws of the United States, and that the United States should also be enjoined from implementing or enforcing Sections 2(c) and 6(a) of the Second Executive Order 13780, including at all United States borders, ports of entry, and in the issuance of visas, and enjoin the United States from implementing or enforcing Section 5(d) of the First Executive Order 13769 and enjoin the United States from implementing or enforcing Section 6(b) of the Second Executive Order 13780.[66] The Court subsequently issued an order directing the United States to file a response to the emergency motion to enforce the preliminary injunction by March 14, 2017.[67]

On March 17, 2017, U.S. District Judge James Robart declined to grant an additional restraining order because he regarded such an action as unnecessary given that the President's new executive order was already blocked by U.S. District Judge Derrick Watson in Hawaii.[68]

Maryland will also challenge the order in court, citing the order's future harm to its competitiveness academically and economically in the form of hindering visits by academics, scientists and engineers from other countries.[69]

Other cases

The first temporary restraining order (TRO) issued against the revised travel ban came on March 10 from U.S. district judge William Conley in Madison, Wisconsin; the TRO suspended the executive order with respect to a Syrian refugee's wife and child who are living in Aleppo, Syria.[70]

On March 24, 2017, U.S. District Judge Anthony John Trenga in Alexandria, Virginia, refused to grant plaintiff Linda Sarsour a temporary restraining order against the President's executive order, finding that she was not likely to succeed in her challenge.[71]

U.S. Supreme Court

On June 26, 2017, in an unsigned per curiam decision, the United States Supreme Court stayed the lower court injunctions as applied to those who have no "credible claim of a bona fide relationship with a person or entity in the United States"[72][73] The Court also granted certiorari and set oral arguments for the fall term.[73] The Court did not clarify on what constitutes a bona fide relationship.[74] Justice Thomas, joined by Justices Alito, and Gorsuch, partially dissented, writing that the lower courts' entire injunctions against the executive order should be stayed.[73]

On June 29, President Trump sent out a diplomatic cable to embassies and consulates seeking to define what qualifies as a "bona fide relationship", excluding connections with refugee resettlement agencies, and clarifying that step-siblings and half-siblings are close family while grandparents and nephews are not.[75]

On July 14 in Honolulu, Judge Derrick Watson found that the President's limitations on refugee resettlement agencies and family definitions violated the Supreme Court's order, writing "grandparents are the epitome of close family members."[76]On July 19, the Supreme Court left in place Judge Watson's order on family definitions, but it stayed while on appeal the part of his injunction on refugee resettlement agencies.[77] Justices Thomas, Alito, and Gorsuch said they would have stayed Judge Watson’s entire order.[77] The Court also scheduled oral arguments in the case for October 10.[77]

See also

References

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  25. ^ "1:17-cv-00050 Motion for Leave To File Second Amended Complaint for Declaratory and Injunctive Relief". 
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