On March 6, President Trump signed an executive order “to protect the Nation from terrorist activities by foreign nationals admitted to the United States.” The new order differs from an earlier order restricting travel to the United States that Trump signed on January 27.
On January 28, U.S. District Court Judge Ann Donnelly, a U.S. District judge of the Eastern District of New York in Brooklyn, ruled in favor of a petition filed by the American Civil Liberties Union (ACLU) on behalf of two Iraqi men who were detained at John F. Kennedy International Airport the previous day under Trump’s executive order. In her ruling, Donnelly wrote that “there is imminent danger that, absent the stay of removal, there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject” to the order. Those nations were Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen.
Subsequently, judges in other federal district courts in Massachusetts, Virginia, and Washington issued similar rulings. The most significant of these actions was a ruling by U.S. District Judge James Robart in Seattle that Washington state and Minnesota had standing to challenge Trump’s order. Robart imposed a nationwide restraining order on Trump’s ban on travelers and immigrants from seven countries. After the Trump justice department asked the Ninth Circuit Court of Appeals to restore the measure on an emergency basis, the three-judge panel instead maintained the suspension ordered by Robart.
The new executive order that Trump signed on March 6 drops Iraq from the nations listed in the previous order. In place of the ban, Iraq will “increase cooperation with the US government on the vetting of its citizens applying for a visa to travel to the United States,” said an administration fact sheet.
In an effort to avoid some of the conflict that led to the court ruling that blocked the original order, the new executive order specifies that lawful permanent residents (those who hold green cards) are excluded from any travel ban, said White House advisor Kellyanne Conway speaking on Fox and Friends on March 6. Those with validly issued visas will also be exempt from the ban.
“If you have travel docs, if you actually have a visa, if you are a legal permanent resident, you are not covered under this particular executive action,” Conway said. “Also, Iraq is no longer on the list based on their enhanced screening and reporting measures.”
Among the points stated in Trump’s March 6 order:
• “On January 27, 2017, to implement this policy, I issued Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States).”
• “Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. These are countries that had already been identified as presenting heightened concerns about terrorism and travel to the United States.”
• “Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion.”
• “The implementation of Executive Order 13769 has been delayed by litigation. Most significantly, enforcement of critical provisions of that order has been temporarily halted by court orders that apply nationwide and extend even to foreign nationals with no prior or substantial connection to the United States.”
In his order, Trump continued by noting, “nationals from the countries previously identified under section 217(a)(12) of the Immigration and Nationalization Act warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats.”
217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), originates with H.R. 158, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, signed into law by former President Obama on December 18, 2015, as part of the Omnibus Appropriations Act of FY2016. The portion of the U.S. Code cited in the Trump order was, therefore, created by law Obama signed.
Trump then went on to explain why nationals of six of the previously designated countries included in his new order continue to present heightened risks to the security of the United States. He cited brief descriptions of conditions in the six countries taken in part from the Department of State’s Country Reports on Terrorism 2015 (issued in June 2016, when Obama was still president). These countries are Iran, Libya, Somalia, Sudan, Syria, and Yemen. These descriptions are condensed from Trump’s order:
• “Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qaeda and has permitted al-Qaeda to transport funds and fighters through Iran to Syria and South Asia. “
• “Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals…. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country.”
• “Somalia. Portions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qaeda-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries.
• “Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qaeda and other terrorist groups to meet and train…. Elements of core al-Qaeda and ISIS-linked terrorist groups remain active in the country.”
• “Syria has been designated as a state sponsor of terrorism since 1979. [Syria] has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States.
• “Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, al-Qaeda in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks.”
In light of the conditions in these six countries, until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high.
Trump went on to explain that the new executive order replaces the old one:
In order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.
This latest executive order will become effective in 10 days.
CNN reported a statement made by administration officials noting that the new executive order will include information reported by the FBI stating that approximately 300 persons who entered the United States as refugees are “currently the subjects of counter-terrorism investigations.”
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