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  • February 15, 2017

    Immigration Order Update: The Chaos Is Not Over

    When President Trump signed the Executive Order banning immigration from seven countries on Jan. 27, uncertainty, inconsistency, and lack of agency coordination followed. Immigration attorney Joseph Rivas discusses the various responses of government agencies, and the lawsuits filed in federal courts.

    Joseph M. Rivas

    On Jan. 27, 2017, President Trump signed Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order was effective the date of signing.

    Uncertainty, inconsistency, and lack of agency coordination followed. The Order:

    • Halted the entire refugee admissions program for 120 days, to determine additional security vetting procedures;
    • Cut the number of refugees admitted from 110,000 to 50,000 for fiscal year 2017;
    • Suspended the resettlement of Refugees from Syria altogether;
    • Suspended the issuance of visas and admissions to individuals from seven countries, specifically Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

    When the Order was issued it became quite apparent that the associated agencies did not receive advance warning, as they would have needed time to develop a coordinated approach.

    Department of Homeland Security Response

    Admission into the United States by travelers falls under the authority of the Department of Homeland Security. Two separate divisions of Homeland Security are tasked with admissions:

    • United States Customs and Border Protection (CBP) with more than 300 land, air, and sea ports process travelers from abroad.
    • United States Citizenship and Immigration Services (USCIS) with more than 85 field offices (as well as international offices) process immigrant, nonimmigrant, and naturalization applications for applicants within the United States.

    Without public notice, CBP officers began enforcing perceived terms of the Order the evening the Order was signed. Airline carriers began to refuse to board those using passports from one of the seven countries, as well as those of dual nationals using a non-restricted country’s passport. Prospective applicants holding valid visas had their visas invalidated and canceled at the port of entry. Those who were turned away included Lawful Permanent Residents of the United States.

    Joseph M. Rivas Joseph M. Rivas, U.W. 1979, is a shareholder at Hochstatter, McCarthy, Rivas & Runde, S.C., Milwaukee, where he specializes in immigration law.

    On or after Jan. 30, 2017, USCIS sent a notice to field offices to suspend final action on any petition or application where the applicant was a citizen of one of the seven countries (this included naturalization applications).

    Department of State Response

    The Department of State (DOS) is responsible for the issuance of immigrant and nonimmigrant visas. DOS utilizes over 200 consular posts worldwide. On Jan. 27, 2017, DOS issued a notice provisionally revoking all valid immigrant and nonimmigrant visas to applicants “from” the seven countries. DOS also stopped scheduling visa appointment interviews and processing of applications.

    Federal Court Lawsuits Filed and Court of Appeals Responses

    A number of federal lawsuits were filed throughout the country challenging the Order. A lawsuit was filed Jan. 30, 2017, by the State of Washington (amended to allow the State of Minnesota to join Feb. 1, 2017) claiming irreparable injury. On Feb. 3, 2017, a nationwide temporary restraining order (TRO) was granted by the Court, putting a screeching halt to the Order. The Department of Justice challenged the TRO by filing an emergency motion (under Circuit Rule 27-3) to the Ninth Circuit Court of Appeals. On Feb. 4, 2017, the Ninth Circuit denied the request for an administrative stay. On Feb. 9, 2017, in a per curiam order, a three-judge panel denied the emergency motion for a stay.

    The Chaos Is Not Over

    At the time of the writing of this report, a request has been made for an En Banc hearing in the Ninth Circuit. A federal lawsuit was filed in Madison on Feb. 13, 2017, by a Syrian man, granted asylum in May 2016, over his inability to finalize asylum applications for his wife and 3-year-old daughter. The State of Washington TRO did not protect against the benefit sought by the Syrian litigant.

    In the meantime, United States Customs and Immigration Enforcement has ramped-up nationwide apprehension of noncitizens for deportation.

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    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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