Indefinite Entry Bar Under Executive Order

June 12, 2017

 
Notice

On June 12, 2017, the Ninth Circuit Court of Appeals upheld the portion of the Hawai'i 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 study that could lead to an indefinite entry bar for some countries under Section 2(e) of the executive order.

Section 2(e) of the March 6, 2017 Executive Order 13780 establishes 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." The section 2(e) bar is very similar to the 3(e) bar established in Executive Order 13769.

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."

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. In this advisory, we'll refer to this as the Section 2(b) Report. The agencies had stopped all work on the study and the report due to an injunction on all of Section 2 of the executive order, issued by the U.S. District Court in Hawai'i. It is likely that this 20-day report will be due now within 20 days of the Ninth Circuit's decision to strike the portion of the injunction that had blocked section 2(e).

We don't know what "information" DHS will require countries to provide regarding their citizens who apply for U.S. visas, as part of the Section 2(b) Report. The Executive Order states only that it will be 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.

Notice to countries identified in the report

Upon submission of the Section 2(b) Report to the President, 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 on their citizens who apply for U.S. visas, admission to the United States, or other U.S. immigration benefits. A country's 50-day clock begins on the day it receives notice from the Secretary of State.

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 receive a "50-day notice" under Section 2(d). Nor is it possible to identify which countries might be included on DHS' recommendation of countries to be included in the Presidential proclamation mentioned in Section 2(e). Just as we can safely assume that some countries already do provide the kind of information DHS will include in its Section 2(b) Report (and would therefore not be included in the 2(b) Report or need to be sent a 50-day notice under Section 2(d)), we can also assume that some countries do not. 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.

Recalcitrant countries and a future indefinite entry bar under section 2(e)

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 continue to fail to 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 remain in effect until a country compliance occurs or " Here is an estimated timeline, based on the provisions of the March 6, 2017 executive order:

June 12, 2017
Although the executive order became effective on March 6, 2017, all of Section 2 was immediately blocked by an injunction issued by the U.S. District Court in Hawai'i. On June 12, 2017, the portion of the injunction that blocked the government study connected to the Section 2(e) indefinite entry bar was lifted by the Ninth Circuit Court of Appeals. The Secretary of Homeland Security could now have 20 days from this date 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 2, 2017 - On or about.
After 20 days, the Secretary of Homeland Security must submit the Section 2(b) Report to the President, and the Secretary of State must notify all countries that do not already supply information deemed adequate that they have 50 days to begin providing such information.
August 21, 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 21, 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 requirement would last "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."