Lawyers wrestle with questions on Trump’s immigration ban

As you may have heard, the Trump Administration issued an executive order on January 27^th which put severe restrictions on immigration from seven countries, all of which have primarily Muslim populations. The order bans travel from those countries (Iraq, Iran, Syria, Yemen, Sudan, Somalia, and Libya) for 90 days, and suspends refugee admission for 120 days (at least initially), with immigration for Syrian refugees barred indefinitely.

The order went into effect with little warning, spawning a wave of confusion—from travelers with visas who were returning after visiting those seven countries, to Department of Homeland Security (DHS) officials left trying to interpret the order’s legal applications.

Airports across the nation were thrown into chaos, with thousands of protesters arriving to demand the release of those detained as part of the order. Demonstrations broke out in many of the nation’s cities, and even some Republicans expressed concern over a perceived lack of vetting and operational guidance within the DHS and the Justice Department.

Confusion was apparent also in the number of questions coming into the Avvo Q&A forum. Traffic into the forum section doubled, and immigration-related searches on Avvo jumped 152% from the previous week.

The questions people were asking reflect the anxiety and confusion of many in the general population—and for lawyers as well.

Caught in the middle

Immigration is a complex process, and a number of the questions Avvo has received so far are from people who had documentation in progress, wondering if the executive order was going to throw a wrench into their approval. One person of Syrian dissent, for instance, worried over his pending I-140 (Immigration Petition for Alien Worker) application and H1B Visa renewal, saying “I fear the new Executive Order is going to put the whole process in jeopardy, is that the case?”

“I don’t believe anyone can answer this definitively at this point,” said an attorney. “Since your application is just a renewal perhaps you may not have a problem. However, it may draw increased scrutiny after the executive order.”

Another attorney went along with that assessment, saying “I agree with my colleague that it is difficult to answer definitively . . . Your submission might be subject to more scrutiny but hopefully it will be ultimately approved.”

Some people who were out of the country wondered if they were going to be granted readmission to the US. One wrote: “I am a green card holder coming from India through dubai…I understand that President Trump is issuing extreme vetting orders and suspending the green cards of travelers…should I be concerned? My flight back to the states is next week. Please advise!”

“Your concern is understandable,” said a lawyer in response. “The Executive Orders appear to apply to permanent residents as well as nonimmigrants, and there appears to be some limited discretion for DHS to admit permanent residents on a case-by-case basis, and following a thorough security review. However, it does NOT apply to persons who merely passed through the designated countries.”

Is the ban being applied to countries—or Muslims in general?

Not mentioned in that last answer is the fact that the questioner was coming through Dubai, which is not one of the specific seven countries named in the executive order. However, the order leaves the door open for other countries to be added to the list. Should Pakistanis be concerned? Or Saudis? And given the speed with which the order was issued and acted on, is it safe for non-US citizens currently residing in the US to make travel plans to any Muslim-oriented country?

Many, for instance, seemed concerned about travel to India, which, while primarily Hindu, still has a sizeable Muslim population. One San Francisco resident with an H4 visa (issued to family members of H-1B workers) asked if it was safe to travel to New Delhi. Two attorneys responded, neither of whom could confidently say she could easily get back in the country, given the uncertainty around future policy changes.

Another person was asking about her mother, who is not a US citizen and only holds a South Korean passport, flying from New Jersey to California. Would she be detained and interrogated by immigration officials? Again, attorneys were unsure.

“With Trump’s most recent executive order(s) the only thing certain about immigration is that it is now very much uncertain in terms of how laws will be enforced,” said one lawyer, “and how TSA, Customs & Border Patrol and Dept of Homeland Security and ICE will act under their newly expanded authority.”

Even those with permanent residence who are not from a Muslim country were worried. One question came from a New Zealander with permanent residence in the US, but also a misdemeanor on their record. Could they travel to New Zealand and back without a problem? Attorneys seemed confident saying yes, as the misdemeanor wouldn’t be enough to cause issues and the travel destination isn’t on the “no” list.

Mixed signals

One major question about the order, which came up repeatedly, concerns those with permanent residence (a green card). Initially, the DHS believed the order did not apply in those cases, but the White House wasn’t confirming. The current guidance is that green card holders can board US-bound planes, but those travelers might receive “extra scrutiny” upon arrival.

What about dual citizenship? Some were concerned even just having citizenship at one of the seven countries on the list would keep them from re-entering the country. Attorneys seemed sure on that point, saying US citizenship should not be affected by the order, so long as the US passport was presented at ports of entry.

Still others wondered about marriage partners. “I am an American citizen who has married an Iranian guy,” said one. “My husband just got his immigrant Visa with the Marital Status in his passport. We want to come to U.S. together in next month. Do they let him in with the President Trump’s new immigration rules?”

In that case, at least, the response was clear. “The answer is no,” said an attorney, “under the new Executive Order he cannot be admitted to the U.S.”

Where to go from here?

The situation is currently in flux. At the time of this writing, a federal judge in New York has blocked the ability of authorities to remove individuals who arrived at airports after the order had been issued. Individual and national lawsuits are in motion. And the acting Attorney General, Sally Q. Yates, has been fired after ordering the Justice Department not to defend the executive order, saying “I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.”

In the meantime, as the country collectively absorbs and understands the ramifications of the new policy and how it impacts the individuals involved, the Avvo Q&A allows you to ask questions anonymously and get free advice from attorneys who are tracking ongoing developments. And if you need the services of an attorney right now, you can find an immigration lawyer here, or make use of legal services available via the Avvo immigration section.