Update on the “Travel Ban”

On March 6, President Donald Trump issued an Executive Order called “Executive Order Protecting The Nation From Foreign Terrorist Entry to the United States.” The White House issued the order largely in response to court challenges made against another Executive Order signed on January 27.

As we noted in an earlier blog post, the effective date of the travel ban was March 16. However, following the release of the March 6 Executive Order, several law suits were filed regarding the President’s authority and Constitutional questions surrounding the Executive Order.

Two federal district courts (Hawaii and Maryland) have imposed temporary holds on implementation of the March 6 Executive Order. Both considered similar Constitutional questions as well as the President’s authority regarding immigration law. Both courts did note that statements made by the President during the campaign regarding a “Muslim ban” call into question the purpose of the March 6 Executive Order.

The Trump Administration has stated that it will appeal both decisions. Recent reports indicate that the Administration will file an appeal in the Fourth Circuit Court of Appeals regarding the Maryland federal court ruling. Historically, the Fourth Circuit has ruled in favor of the federal government on issues relating to security. This past Sunday, the Hawaii court denied a request made by the Trump Administration to narrow the scope of the temporary hold, opening the door for appeal to the Ninth Circuit Court of Appeals.

What does this mean for travelers?
Both orders prohibit the federal government from carrying out the March 6 Executive Order, and it is likely that the Administration will pursue these efforts in the courts rather than issue another Executive Order. However, the Trump Administration is still moving ahead on other initiatives that may affect travel such as border security and enhanced vetting.

In response to the January 27 Executive Order, the Department of Homeland Security released two guidance documents on immigration enforcement and benefits, and border security. The past month, the White House also published a memorandum on enhanced vetting. Section 2 includes the following:

Sec. 2.  Enhanced Vetting Protocols and Procedures for Visas and Other Immigration Benefits.  The Secretary of State and the Secretary of Homeland Security, in consultation with the Attorney General, shall, as permitted by law, implement protocols and procedures as soon as practicable that in their judgment will enhance the screening and vetting of applications for visas and all other immigration benefits, so as to increase the safety and security of the American people.  These additional protocols and procedures should focus on:

(a) preventing the entry into the United States of foreign nationals who may aid, support, or commit violent, criminal, or terrorist acts; and

(b) ensuring 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.

This past week, Reuters published a series of diplomatic cables that the Secretary of State, Rex Tillerson, sent to consular offices which shed some insight into how the State Department is implementing the President’s Executive Order.

The cables instruct consular officers to:

• “[R]emember that all visa decisions are national security decisions” and encourages consular officers to take as much time as is necessary to allay all security concerns.
• Requires Consular Chiefs to convene the post’s law enforcement and intelligence community partners to develop “a list of criteria identifying sets of post applicant populations warranting increased scrutiny.” Once those population sets are identified, “the interviewing consular officer should consider sending a discretionary Donkey Security Advisory Opinion (SAO) request.” SAOs require an in depth looks into an applicant’s past that go back about 15 years. They typically take longer to process, 13 to 16 weeks.
• Review an applicant’s social media history if that applicant may have a connection to ISIS or was in a part of Iraq that was controlled by ISIS.
• Require SAOs for every visa applicant applying with a passport from Iran, Libya, Somalia, Sudan, Syria, or Yemen.

The guidance did also noted that,

These are preliminary measures. Additional screening measures will be introduced based on the conclusions of the interagency working groups mandated by the E.O, acting in accordance with applicable court orders.

It is possible that this guidance and other steps taken by the Administration will increase visa application processing times for those applicants who are subject to more in depth review. According to a draft internal DHS memo published by the Associated Press entitled, Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States, “None of the seven countries account for more than 7 percent of the U.S, visas granted in their region—the Middle East and North Africa or Sub-Saharan Africa—in Fiscal Year 2015…” The report references the earlier January 27 Executive order, but it does indicate that the overall impact on travel as a result of the March 6 order may be minimal. Additional resources will be needed to ensure that these reviews and other enhanced vetting measures do not unnecessarily affect travel.

GBTA will continue to monitor these developments and provide updates. GBTA is also working to assess the impact these measures will have on global business travel and the economy.