daughter-in-law or sibling in the U. S. Other members of the family, such as grandparents, were initially excluded. The 2.0 version said they were not a“ bona fide” relation to the foreign national. Following lawsuits, they were later included.
After a series of defeats, in June of 2017 the administration had a win at last. The U. S. Supreme Court, right before it took its summer recess, lifted the hold on the ban which had been in place by federal judges in both Hawaii and Maryland. The Supreme Court’ s ruling was unsigned by liberal justices( Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan). Conservative Justices Neil Gorsuch, Clarence Thomas and Samuel Alito contended that the president’ s administration should be permitted to enforce the ban in all instances. This effectively allowed the Trump administration to disallow citizens of Sudan, Syria, Yemen, Iran, Libya and Somalia from entering the U. S. for 90 days. It also barred nearly all refugees from coming into the U. S. for 120 days.
In an attempt to make the ban more of a permanent feature within the fabric of our immigration laws, on Sept. 24, 2017, the administration issued Presidential Proclamation 9645( no longer titled“ Executive Order”). It placed restrictions on eight countries: Syria, Venezuela, Yemen, Chad, Iran, Libya, North Korea and Somalia. It also placed added security measures on Iraqi citizens. Both the Ninth Circuit( Hawaii plaintiffs) and Fourth Circuit( Maryland plaintiffs) issued injunctions against this so-called“ Travel Ban 3.0,” which again rendered Trump’ s ban ineffective. However, on Dec. 7, 2017, this time the Supreme Court granted the administration’ s motions for an emergency stay of preliminary injunctions.
As such, President Trump’ s most recent travel ban went into effect on Dec. 8, 2017, for the predominantly Muslim countries while the appeals were still pending in both Ninth and Fourth circuit courts.
PRESIDENTIAL PROCLAMATION 9645
The Presidential proclamation, while narrower in its scope, is still considered by many to be motivated by animus and is unconstitutional on many levels. On its face, the proclamation claims to allow for a“ waiver” process for people who pose no threat to United States. According to the proclamation itself, the Department of State was to provide“ guidance” to the public. To date, there has been no clear guidance by the department. The only“ guidance” is a virtual reiteration of the proclamation itself( See AILA Doc. No. 17120830).
Although the Trump proclamation claims a“ case-by-case” waiver is available to the adversely affected nationals, there has been virtually a categorical denial of affected parties since its implementation on Dec. 8, 2017. Visa applicants are provided with a generic denial notice, stating that they have been found“ ineligible for a visa under Section 212( f) of the Immigration and Nationality Act, pursuant to Presidential Proclamation 9645. Today’ s decision cannot be appealed.”
Following this generic denial, one of two boxes is checked off. The first option states that“ taking into account the provisions of the proclamation, a waiver will not be granted” and that the applicant may reapply later in time. Said box appears to
be checked for virtually all non-immigrant visas( if said nonimmigrant visa is not one of the few“ exceptions” under the proclamation) and also for all diversity visa applicants. The second box is generally checked for majority of immigrant visa applicants, including family-based and EB-5 visa categories. Here, the intending immigrant is advised that the consular officer is reviewing the applicant for a waiver under the proclamation, and further reference is made to the proclamation text. Said rejection notice ends by emphasizing that the waiver process is a lengthy one, and that the applicant remains“ refused under Section 212( f).”
Section 3( c) of Proclamation 9645 grants authority to consular and immigration officials to grant waivers on a“ case-by-case basis” to an individual who would otherwise be subject to the proclamation’ s entry ban if: Denying entry would cause the foreign national undue hardship; entry would not pose a threat to the national security or public safety of the U. S., and entry would be in the national interest.
THE VISA WAIVER PROCESS
Although a waiver process is supposed to be possible, it is unclear as to what standards of proof are being used to make this determination. Through a bipartisan letter written on Jan. 31, 2018, Sens. Jeff Flake and Chris Van Hollen requested information about visas from the State Department. In their letter, the senators assert that there have been reports of“ uniform denial of waivers for visas.” Additionally, the senators emphasize that U. S. Department of State has not given the public any conclusive guidance on waivers and has not provided standards of proof or qualifications for granting waiver eligibility.
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