Pretext or Profiling?
By Melissa N. Salvador
Immigration Lawyer
February 23, 2017
The Genesis of the 7 Countries Victimized by President Trump’s Executive Order
Less than 2 weeks in office, US President Donald Trump created the biggest news regarding the US immigration system since November 2014 when President Obama’s executive order (“EO”) was issued to expand relief to thousands of undocumented immigrant parents of US-citizen children. The courts subsequently invalidated that order and now President Trump’s EO is currently facing the same fate.
On January 27, 2017, President Donald Trump signed “Protecting the Nation from Foreign Terrorist Entry into the United States”, an executive order suspending travel for all nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen – the Forbidden 7 – to the US for 90 days. The order does not explicitly state these countries by name. Rather, it makes reference to them through various immigration statutes, most notably a law enacted in 2015 that changed certain provisions of the US Visa Waiver Program (“VWP”).
The VWP allows citizens of participating countries to apply for admission into the US without a visa. The “Visa Waiver Program Improvement and Terrorist Travel Protection Act of 2015” updated the program to preclude nationals of VWP countries who travelled to and nationals of VWP countries who are also citizens of the Forbidden 7 (dual citizens) from participating in the VWP.
According to the 2015 law, the US Secretary of Homeland Security together with the US Secretary of State identified the Forbidden 7 as countries or areas of concern due to a credible threat to the national security of the US resulting from a foreign national’s presence there, the presence of a foreign terrorist organization, and such countries serving as safe havens for terrorists. Despite the restriction to participate in the VWP, however, these individuals are still permitted to apply for a visa to travel to the US under the 2015 legislation. Notwithstanding, President Trump leveraged the act for his EO and administered an outright ban against a particular group of individuals from travelling to the US.
In the early days of Trump’s immigration EO, there was much consternation over the applicability of the ban given that many nationals of the Forbidden 7 hold dual citizenship or are permanent residents of the US or other countries. For now, none of that seems to matter anymore because the travel suspension has been lifted by a federal court and upheld by a panel of 3 appellate judges. President Trump’s attempt at circumventing the legislative body of the US government remains in the hands of the judiciary as he has vowed to continue fighting the court’s decision to leave the hold against the ban in place.
