TITAN vs. TITAN: President Trump and the Federal Courts Face Off Over His Temporary Travel Ban | Eastern North Carolina Now

    Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.

    Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.

    (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) 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.

    (b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

    (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

    (d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

    (e ) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

    (f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment. [The full text is provided in the Appendix below]

    Section 217(a)(12) of INA, 8 USC 1187(a)(12), which is the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (and extended in 2016) and which is highlighted and italicized above in the text of the Executive Order, identifies seven countries which are excluded from the waiver program. These seven countries are Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. These countries were identified under the Act, by the Obama administration, because they present a heightened risk of terrorism and they cannot and do not provide proper information on its nationals so that the United States can vet those coming into our country. A different section of the Order refers to Syria specifically, because it calls for the indefinite suspension of Syrian refugee admissions, until such time as the President believes security concerns have been adequately addressed.

    The President's Executive Order does not seek to make new law. Rather, it clarifies existing law and aligns it with national security concerns. The Executive Order addresses the basic requirement for an alien to enter and reside in the United States - a verifiable visa.

    Under the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq., an alien may not enter and permanently reside in the United States without a visa. See §1181(a). President Trump is using the visa requirement to introduce proper vetting measures as it relates to those coming in from countries previously identified as engaging in terrorism and being unable to provide adequate visas. Without proper visas, the government (and the innocent citizens of the United States) do not know what type of citizens they are getting and furthermore, will be unable to keep tabs on them. According the INA, visas must ensure that the individual seeking to move to the US is not inadmissible for a number of reasons, including that they innocent of terrorist activities. The seven countries covered by the Executive Order cannot ensure that its citizens meet our threshold. Hence, the president has issued a temporary ban for 90 days in order that proper assurances can be provided.

    So, to be clear about the President's Executive Order: It bars Syrian refugees indefinitely and blocks citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entry into the US for 90 days. The provisions of the Executive Order will force the State Department and Homeland Security to establish proper vetting procedures by the 90-day period (the temporary ban) for those countries so that authorities can keep the United States safe. The exact process by which the president seeks to establish proper vetting procedures is explained clearly in the Order.

    Here is some background information on the Immigration and Nationality Act, to which the Visa Waiver Program Improvement and Terrorist Travel Prevent Act has been recently added:

    The Immigration and Nationality Act (INA), as amended, prohibits admission into the United States of a foreign national not in possession of a valid visa, with a few limited exceptions. One such exception is the Visa Waiver Program (VWP or Program) which, for a number of years, was a pilot program (VWPP). That pilot program, which was first enacted in 1986, was designed to allow nationals from certain countries to enter the United States under limited conditions, for a short period of time, without first obtaining a visa from a U.S. consulate abroad. On October 30, 2000, President Clinton signed the Visa Waiver Permanent Program Act, making the program permanent. See Section 217. The VWP, administered by the Department of Homeland Security (DHS), in consultation with the State Department, utilizes a risk-based, multi-layered approach to detect and prevent terrorists, serious criminals, and other mala fide actors from traveling to the United States. This approach incorporates regular, national-level risk assessments concerning the impact of each program country's participation in the VWP on U.S. national security and law enforcement interests. It also includes comprehensive vetting of individual VWP travelers prior to their departure for the United States, upon arrival at U.S. ports of entry, and during any subsequent air travel within the United States, among other things.

    The VWP authorizes the Attorney General, in consultation with the Secretary of State, to waive the requirement of a valid nonimmigrant visa for visitors for business (B-1) or pleasure (B-2) who are seeking to enter the United States from certain countries for not more than 90 days. In 2003, 13.5 million visitors entered the United States under this Program, constituting almost one-half of all visitors that year. The main advocates of the VWPP were the Department of State (DOS), the American tourist industry, and the business community. DOS advanced a two-fold incentive for the program: (1) eliminating the requirement for nationals of high volume application, low denial rate countries to apply for nonimmigrant visitor and business visas at the consulates, thus also eliminating processing paperwork and freeing consular resources for other activities; and (2) fostering better relations with reciprocity countries that allow U.S. citizens to also enter without a visa. The U.S. tourist industry was enthusiastic in its support of the program, as it correctly envisioned that millions of tourists would take advantage of the opportunity to travel to the United States on the spur of the moment without the time-consuming inconvenience of having to obtain nonimmigrant visas in advance of travel. The business community also welcomed the idea that people could enter the United States on short notice to conduct business without first applying for a nonimmigrant visa.6 For the most part, while the VWPP had been enthusiastically received, the Program was also the subject of a critical report issued by the Justice Department's Office of Inspector General. Testifying before a House subcommittee on May 5, 1999, the Inspector General noted that the Pilot Program could facilitate illegal entry because visitors from VWPP designated countries avoid the pre-screening that consular officers normally perform on visa applicants. It was also pointed out that some terrorists and criminals intercepted at the time of inspection were attempting to enter under the VWPP. Another problem, according to the Inspector General, was government employee corruption involving bribery and trafficking in fraudulent or blank passports and other documents.

    At press time, 27 countries are designated participants They include Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, New Zealand, the Netherlands, Norway, Portugal, 18 San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. A small number of countries that were once designated VWP countries have been disqualified from the VWP. Belgium is currently in provisional status because of concerns about the integrity of its nonmachine-readable passports and issues associated with the reporting of lost or stolen passports. Qualifying countries are designated by the Attorney General, in consultation with the Secretary of State, based upon that country's satisfaction of a number of requirements, including not issuing passports to persons who pose a threat to the welfare, health, safety, or security of the United States, having a low non-immigrant visa refusal rate for the two years prior to designation, and the status of the country as one that issues its citizens machine-readable passports ("MRP") that satisfy the internationally accepted standard for machine readability.