Indefinite Entry Bar Under Executive Order

September 20, 2017

 

Sections 2(a), (b), (d) and (e) of Executive Order 13780 establish the framework for a future indefinite entry bar that could apply to any country that is unwilling or unable to provide the United States with the information that it decides is needed "in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat."

Updates

On September 19, 2017, The Washington Post reported that the Department of Homeland Security had forwarded to the President the report required under Executive Order 13780 Section 2(e), of countries that do not adequately provide the U.S. with information on the particular country's citizens or nationals who apply for U.S. visas and immigration benefits. This report could lead to a Presidential Proclamation to restrict the entry of citizens from those countries, until the countries begin providing the information the United States has asked the countries to provide.

On July 12, 2017, the Department of State sent a cable to consular posts advising them that the 20-day review report required by EO 13780 was sent to President Trump on July 10, 2017, and instructing posts to initiate "a 50-day engagement period, as called for in Section 2(d) of the EO, in which posts must inform host governments of the new information sharing standards and request that host governments provide the requested information or develop a plan to do so."

In a June 26, 2017 decision, the U.S. Supreme Court stated,

"In light of the June 12 decision of the Ninth Circuit vacating the injunction as to §2(a), the executive review directed by that subsection may proceed promptly, if it is not already underway. EO–2 instructs the Secretary of Homeland Security to complete this review within 20 days, after which time foreign governments will be given 50 days further to bring their practices into line with the Secretary's directives. §§2(a)–(b), (d). Given the Government's representations in this litigation concerning the resources required to complete the 20-day review, we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c)."

On June 12, 2017, the Ninth Circuit Court of Appeals upheld the portion of the Hawaii District Court's preliminary injunction that blocks the Section 2(c) 90-day travel ban, but ruled that the District Court erred in blocking all of Section 2. In its decision, the Ninth Circuit upheld the portion of the injunction barring implementation the Section 2(c) 90-day travel ban, but reversed the part of the injunction that also blocked the Section 2(a) study that could lead to an indefinite entry bar for some countries under Section 2(e) of the executive order.

Section 2(a) - Worldwide review of information needed from countries

Section 2(a) of Executive Order 13780 requires the Secretary of the Department of Homeland Security, in consultation with the Secretary of State and the National Intelligence Director, to:

"... conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country."

DOS's July 12, 2017 cable provides the following general description of these standards:

Standards for identity-related information-sharing by foreign governments whose nationals seek to travel to the United States

  • Countries should issue, or have active plans to issue, electronic passports that conform to ICAO specifications and include a facial biometric image to enable verification of travel documents;
  • Countries should regularly report lost and stolen passports, whether issued or blank, to the INTERPOL Stolen and Lost Travel Document Database to maintain the integrity of travel documents; and
  • Countries should make available any other identity information at the request of the U.S. including, as appropriate, additional biographic and biometric data and relevant immigration status.

Standards for measuring information-sharing related to terrorism or public safety threats by foreign governments whose nationals seek to travel to the United States

  • Countries should make available information, including biographic and biometric data, on individuals it knows or has reasonable grounds to believe are terrorists, including foreign terrorist fighters, through appropriate bilateral or multilateral channels;
  • Countries should make available through appropriate bilateral or multilateral channels criminal history record information, including biographic and biometric data, on its nationals, as well as permanent and temporary residents, who are seeking U.S. visas or border or immigration benefits;
  • Countries should provide exemplars of all passports and national identity documents they issue to the U.S. Department of Homeland Security's Immigration and Customs Enforcement Forensic Laboratory, including applicable date ranges and numbering sequences, as required, in order to improve U.S. Government fraud detection capabilities;
  • Countries should not impede the transfer to the U.S. Government of information about passengers and crew traveling to the United States, such as Advance Passenger Information and Passenger Name Records; and
  • Countries should not designate individuals for international watchlisting as national security threats or criminals solely based on their political or religious beliefs.

Security risk indicators relevant to the U.S. Government's ability to vet a country's nationals for admissibility to the United States

  • Countries should take measures to ensure that they are not and do not have the potential to become a terrorist safe haven;
  • Countries should accept the repatriation of their nationals who are subject to a final order of removal in the United States and provide travel documents to facilitate their removal;
  • Visa Waiver Program countries should meet the statutory and policy requirements of the Visa Waiver Program.

Section 2(b) - 20-day report to the President

Section 2(b) requires the Secretary of Homeland Security to submit a report to the President, containing the results of the worldwide review and a list of countries "that do not provide adequate information" on their citizens who apply for U.S. visas, admission to the United States, or other U.S. immigration benefits. This report must be submitted within 20 days after the executive order's effective date. A Ninth Circuit Court of Appeals issued on June 12, 2017 unblocked this portion of the Executive Order, and effectively reset the 20-day clock to begin on June 12, 2017. DOS's July 12, 2017 cable states that the Section 2(b) report was submitted to President Trump on July 10, 2017.

The Executive Order states that the report should specify what information DHS deems necessary "in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat," and that the information DHS requires can differ depending on the country.  DOS's July 12, 2017 cable states that the Section 2(b) report sent to the President on July 10, 2017:

"outlines the new standards that all 191 countries are required to meet for (1) information sharing on identity management and (2) information sharing on security and public safety threats. The standards reflect a mix of long-standing U.S. government goals and standards established by international bodies such as the United Nations (UN), the International Civil Aviation Organization (ICAO), and INTERPOL. The report concluded that three types of information sharing/cooperation are needed to establish a traveler's identity, and four types of information sharing/cooperation are needed to ensure that a traveler is not a terrorist or public safety threat (see para 9). The report also discusses "national security risk indicators" that helped prioritize countries for engagement. Finally, as required under the EO, the report provides a classified list of countries that DHS has preliminarily assessed as not providing adequate information, as well as countries at risk of not providing adequate information.""

DOS's July 12, 2017 cable also clarifies that "the list of countries deemed inadequate or at-risk is classified and should not be discussed outside of official channels."

Section 2(d) - 50-day notice to countries identified in the report

Section 2(d) of the executive order requires the Secretary of State to notify the countries that were listed in the Section 2(b) report that they have 50 days to start providing requested information.  DOS's July 12, 2017 cable describes this as a "50-day engagement process," the objectives of which are to:

  • Announce the new standards to all foreign governments and call for compliance with Executive Order 13780.
  • Clarify that the standards require information sharing in support of vetting visa, border, and immigration applications. Information sharing in support of other objectives that may not be used for adjudicating immigration-related applications will not count toward compliance.
  • Inform those governments assessed as not supplying adequate information, or at risk of being so assessed, that we will work with them as they determine how they can meet the new baseline standards.
  • Underscore that while it is not our goal to impose a ban on immigration benefits, including visas, for citizens of any country, these standards are designed to mitigate risk and failure to make progress could lead to security measures by the USG, including a presidential proclamation that would prohibit the entry of certain categories of foreign nationals of non-compliant countries.

The determination of countries to include in the Section 2(b) Report is not connected to the 6 countries subject to the 90-day entry bar under Section 2(c). It is not possible at this time to say which countries would be determined to be non-compliant. DOS's July 12, 2017 cable also clarifies that "the list of countries deemed inadequate or at-risk is classified and should not be discussed outside of official channels." A country's failure to supply such information could be due to a political decision to not provide it, a structural or situational incapacity to provide it, or other factors.

Section 2(e) - Recalcitrant countries and a future indefinite entry bar

After the 50-day notification clock expires, section 2(e) requires the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, to submit to the President:

... "a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means. The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States."

Future Presidential proclamation

This future indefinite entry bar would have to be announced through a "Presidential proclamation," which would likely look similar to an executive order in terms of scope, style, content, and rollout.

The timing of the "Presidential proclamation" mentioned in Section 2(e) is not specified, but the Executive Order does state that it should not happen until the President receives the DHS secretary's Section 2(b) Report that contains a recommended list of countries to include. And so, it is likely that any presidential proclamation under Section 2(e) could be made no sooner than 70 days after June 12, 2017 (i.e., starting with the date of of the Ninth Circuit's decision to restore the government's authority to conduct the Section 2 study, plus 20 days for DHS to submit the Section 2(b) Report, plus 50 days for notified countries to commit to providing the information specified in the Section 2(b) report.

Summary and estimated timeline

To summarize, DHS must make a recommendation of countries to be included in an eventual Presidential proclamation. This recommendation would be based in large part on the list of countries that do not provide requested information on its citizens who apply for U.S. visas, after having received a 50-day notice to do so. The "indefinite" entry bar under Section 2(e) would become effective only after the President actually signs such a proclamation, and would remain in effect until a country begins complying with U.S. government information requests. Here is an estimated timeline, based on the provisions of the March 6, 2017 executive order and subsequent litigation:

June 12, 2017

Although the executive order became effective on March 6, 2017, all of Section 2 was blocked before that effective date by an injunction issued by the U.S. District Court in Hawai'i. On June 12, 2017, the Ninth Circuit Court of Appeals lifted the portion of the injunction that blocked the government study called for by Section 2(a), which is connected to the Section 2(e) indefinite entry bar. On June 26, 2017, the Supreme Court confirmed the lifting of the injunction on the Section 2(a) study. The Department of Homeland Security had 20 days from June 12, 2017 to complete a "worldwide review" of the information it needs from each country, and to identify countries that do not adequately provide such information.

July 10, 2017

The 20-day report was sent to President Trump on July 10, 2017. A July 12, 2017 Department of State cable instructed consular posts to begin a "50-day engagement period" of notifying countries that they must begin providing the type of information required by the 20-day report.

August 31, 2017 - On or about.

After the expiration of the 50-day notice period, Secretary of Homeland Security sends list of "recalcitrant" countries to the President for inclusion in a possible Presidential proclamation.

After August 31, 2017

Possible future Presidential proclamation that could subject countries to an entry bar or other conditions, for countries that do not provide adequate information on their citizens who apply for U.S. visas, admission to the United States, or other U.S. immigration benefits. The executive order does not specify a time by which the President must announce such a proclamation. The entry bar or extra conditions imposed by such a proclamation would last until the country begins providing such information "or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means."

 

March 6, 2017 Executive Order

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