Yesterday, President Trump tweeted that he is temporarily suspending immigration to the United States.
We still do not have the actual Executive Order and do not know the scope of the order, what immigrant and non-immigrant categories are covered and which immigration processes will be impacted, or the length of time the order will be in place. We will update this blog and page as we get more information.
The President is likely to claim he has the authority to suspend immigration under section 212(f) of the Immigration and Nationality Act, 8 U.S.C. section 1182(f).
That provision provides:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
This is not the first time the President has invoked this provision of law. This is also the law he used to justify the Muslim travel ban that ultimately went to the Supreme Court. The President justified his invocation of 212(f) in the travel ban based on concerns for terrorism. Because the Supreme Court found that the country specific analysis and bans provided by the Administration was reasonable to address concerns related to terrorism and national security. However, the ban had to be amended in order to not be considered overly broad.
The President is likely to invoke the same kind of national security health-related concerns to justify the ban in this case. However, the scope of this ban is much broader and larger than the Muslim ban and is more likely to be challenged by many different groups, with many varying motivations and concerns. As a result, like many of Trump’s executive orders, is likely to be tied up (and possibly enjoined or temporarily stopped) in court.
Imposing a ban on virtually all immigrants is likely going to be much harder to justify. Section 212(f) is, on its face, limited to “any aliens” or “any class of aliens” and does not indicate that the President can ban “all” aliens across the board with no review.
If implemented, what would the ban do? The statute limits the authority of the President to restrictions on “entry.” This means that it is most likely to be directed to visa processing at Consulates and inspection of individuals at ports of entry and airports. It would be beyond the scope of the President’s authority in this statute to apply the ban to applications filed in the US such as extensions of status, changes of status, amended petitions, changes of employer or adjustment of status to Permanent Resident. It would also not apply to Naturalization.
Note, however, that to a great extent, this proposed ban would not directly alter the status quo that significantly. Visa processing has already been suspended at Consulates abroad, travel restrictions to and from various countries are already in place and border entries from Canada and Mexico are already restricted. So, from one perspective, this is just a short-term political message from Candidate Trump.
But, for now, don’t panic. Stay tuned. We will keep you posted as we read the order.
For J&H clients, we advise not traveling outside the US until it is clear who is covered by the order. For those abroad, travel back as quickly as possible since we don’t know exactly when the order will take effect.
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