Does the President Have Authority to Issue an Immigration Ban?
The President’s recent executive order on immigration triggered heated debate in the immigration community and throughout the nation, and left many questioning the President’s authority to issue such a sweeping ban on foreign nationals entering the US.
In support of his authority to issue the executive order, the President cites Immigration and Nationality Act (INA) 212(f), which states:
"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."
While little executive branch guidance exists to interpret this broad authority, the Foreign Affairs Manual (FAM) provides further insight into the application of this executive power at 9 FAM 302.14-3(B)(1).
9 FAM 302.14-3(B)(1) (U) In General
a. (U) Basis for Suspension of Entry: INA 212(f) authorizes the President to suspend entry into the United States of any aliens or any class of aliens or to "impose on the entry of aliens any restrictions he may deem appropriate" for such period as he deems necessary upon determining that their entry would be detrimental to the interests of the United States.
b. (U) Presidential Proclamations: The President exercises this authority by issuing a Presidential Proclamation ("PP") barring certain aliens or a class of aliens ineligible for entry into the United States or imposing appropriate restrictions on their entry.
(1) (U) A Presidential Proclamation typically grants the Secretary of State authority to identify individuals covered by the presidential proclamation and waive its application for foreign policy or other national interests.
(2) (U) Some Presidential Proclamations bar entry based on affiliation, such as:
(a) (U) PP 7062 (suspends the entry of members of the military junta in Sierra Leone and members of their families); and
(b) (U) PP 6958 (suspends the entry of members of the Government of Sudan, officials of that Government, and members of the Sudanese armed forces).
(3) (U) Other Presidential Proclamations suspend the entry of persons based on objectionable conduct. Examples include:
(a) (U) PP 7524 (suspends the entry of persons responsible for actions that threaten Zimbabwes democratic institutions and transition to multi-party democracy); and
(b) (U) PP 7750 (suspends the entry of certain persons engaged in or benefitting from corruption).
The above FAM guidance suggests that a President may exercise his or her broad authority under INA 212(f) through Presidential Proclamations which bar certain aliens or a class of aliens ineligible for entry into the U.S. or impose restrictions on their entry. It further notes that a proclamation typically grants the Secretary of State authority to identify individuals covered by the proclamation, and waive its application for foreign policy and other national interests. In addition, the guidance gives examples of bases for suspending entry to foreign nationals based on affiliation, including suspending entry of members of the military in Sierra Leone and members of the government of Sudan, and based on persons’ objectionable conduct, including persons responsible for actions that threaten Zimbabwe’s democratic institutions, and persons engaged in or benefitting from corruption.
The recent executive order generally comports with this guidance. Although not officially titled a Presidential Proclamation, the order “proclaims” that the entry of immigrants and nonimmigrants of covered countries, Syrian refugees, and more than 50,000 refugees in fiscal year 2017, would be “detrimental to the to the United States” and suspends entry of these individuals. In addition, the order grants the Secretary of State and Secretary of Homeland Security the authority to identify countries covered in Section 3(c) of the order by referring to 8 USC 1187(a)(12), and grants the Secretary of State and Secretary of Homeland Security the authority to waive, on a “case-by-case” basis, and “when in the national interest” the order’s application to foreign nationals identified in Section 3(c) and Section 5(a) of the order. Unlike the FAM, however, which narrowly identifies covered individuals based on their affiliations or objectionable conduct, the executive order provides, as a sole basis for suspension, an individual’s nationality or status as a refugee.
While the full impact of the executive order is yet to be confirmed, a glimmer of hope lies in Secretary John Kelly’s announcement that, “In applying the provisions of the president’s executive order…entry of lawful permanent residents is in the national interest,” and “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” One can hope such discretion will continue to be applied liberally to the provisions of the executive order.
Limiting legal immigration: “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs”
A proposed Executive Order was leaked from the White House, which limits legal immigration by narrowing the eligibility criteria.
In fact the proposed order would, essentially, operate across a number of channels to reduce the scope of legal immigration to the United States. It also begins to lay the administrative and policy groundwork for further legislation altering the scope of legal immigration into one that, in the words of the cover memo, “prioritizes the interests of American workers and — to the maximum degree possible — the jobs, wages, and well-being of those workers.”
The order itself contains a variety of provisions. One would reverse Obama’s extension of the duration of Optional Practical Training work visas and decision to allow the spouses of H-1B guest workers to also have work permits. Another would undo relief Obama has granted to people eligible for green cards but unable to apply for them due to what’s known as the "three-and ten-year bars."
Another provision calls on the Department of Homeland Security to begin “site visits” at places that employ guest workers with L-1 visas and then to expand the site-visit program to cover all employment-based visa programs within two years.
Other provisions are less clear in their impact. The order directs the secretary of homeland security to promulgate a regulation that would “restore the integrity of employment-based nonimmigrant worker programs” and to “consider ways” to alter the H-1B program (for technical guest workers) to be “more efficient and ensure that beneficiaries of the program are the best and the brightest.” The H-1B program, which is often used by outsourcing firms, has come under recent criticism from both Trump Republicans and pro-labor Democrats, and the Trump administration is reportedlylooking at another way to determine which of the hundreds of thousands of H-1B applicants get visas (instead of the current lottery system).
Another directs DHS to “improve monitoring of foreign students” and to “reform practical training programs for foreign students to prevent the disadvantaging of US students in the workforce.” Another calls for the promulgation of a new regulation to “clarify comprehensively” that people on tourist visas may not perform skilled or unskilled labor. Another directs the secretary of state to “reform the J-1 Summer Work Travel program to improve protections of US workers.”
Another provision calls on DHS to do what it can to incentivize more employers to participate in the E-Verify system.
Last but by no means least, the order attempts to build momentum toward a larger revision of American immigration policy. It calls on the secretary of labor to commission a report investigating “the extent of any injury to US workers” caused by the employment of foreign workers, and on DHS to report regularly on the number of foreigners working in the United States and to “immediately restart work on regular benefit fraud assessments for all immigration benefits categories.”
What Should You Do If You are Asked to Relinquish Your Country and Sign Form I-407?
Upon returning to the U.S., Legal Permanent Residents (LPR) should not automatically surrender their green cards if asked to do so. An individual does not lose LPR status as a result of time abroad. They remain an LPR until a final order of removal is issued and the government must prove abandonment by clear, unequivocal, and convincing evidence which a higher evidentiary standard than clear and convincing. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Form I-407, Record of Adandoment of Lawful Permanent Resident Status, must be signed voluntarily and there are no potential negative ramifications for refusing to sign. Neither failure to sign nor abandonment is grounds for detention. Rather, an LPR who refuses to sign Form I-407 must be issued a Notice to Appear (NTA) so that an immigration judge can determine whether they have lost their LPR status.
When abandonment is raised, clients should be advised to offer evidence of the following: their ties to the U.S., the purpose of their visit outside of the U.S., and the expected termination date of the visit abroad or occurrence of facts showing why a date certain is or was not possible. See precedent decision Matter of Kane, 15 I&N Dec. 258 (BIA 1975).
The burden at this stage is preponderance of the evidence, which is more likely than not (more than 51%) that your client did not abandon. See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). Totality of the circumstances are relevant and must be considered. If the officer is nevertheless, not convinced, your client should ask for a hearing before an immigration judge. If the client's green card is confiscated, the client must be provided with alternative evidence of their LPR status, such as an I-94 and/or passport stamp that says "Evidence of Temporary Residence."
Abandonment of residence is not a ground of inadmissibility. Thus, the basis for the NTA is violation of INA §237(a)(1)(A) for being inadmissible at the time of admission because LPRs travel abroad and reenter the U.S. as "special immigrants" per INA §101(a)(27). If the LPR's visit abroad was not in fact "a temporary absence" he or she is not admissible as a "special immigrant." The lack of special immigrant status is what ultimately makes them removable. In this situation, the government bears the high burden of proving abandonment of LPR status by clear, unequivocal, and convincing evidence. An LPR who is placed in removal proceedings, doesn't lose his or her status until a final order of removal is issued. See 8 CFR §1.2 (defining "lawfully admitted for permanent resident").
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