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Border Security and Immigration Second “Muslim Ban” meets renewed litigation By Mary Kenney In the week following President Trump’s issuance of a second travel ban targeting six Muslim-majority countries, several states and a number of immigrant rights groups immediately returned to federal courts throughout the country to urge that this ban, like the first, be enjoined. Trump’s initial Muslim travel ban, an Executive Order issued on January 27, targeted Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. On February 2, a Seattle district court judge enjoined this order nationally in the case Washington v. Trump. Deriding this decision, Trump immediately asked the Ninth Circuit Court of Appeals to stay the injunction, a request which the appeals court rejected. For weeks after this, Trump and his close advisors indicated that a second Executive Order would be issued soon. They made clear that this second Order would “maintain the same basic policy outcome as the first.” True to their word, this is precisely what it attempts to do. In particular, the second travel ban, which is scheduled to take effect on March 16, retains two key aspects of the earlier one. First, it reinstates a 90-day ban on issuance of visas to nationals of six of the originally targeted countries, thus barring their entry into the United States. Iraq is the only country taken off the original list. Moreover, because it includes a complex, multi-step process for determining whether each of the targeted countries satisfies certain as-yet undetermined “informationsharing” capabilities, the 90 days almost certainly will be extended for an indefinite period for most if not all six countries. Second, it also reinstates the 120-day suspension on refugee processing contained in the first Order, eliminating only the earlier, indefinite ban on processing Syrian refugees. Significantly, both a ban on visa issuance and a suspension of refugee processing were included in the first Order and were enjoined by the Seattle district court. The proper method for seeking a modification of an injunction is to either request a reconsideration from the court that issued the injunction—which Trump tried and lost—or to appeal the injunction to the court of appeals. Within days of issuing the second Executive Order, Trump dismissed his pending Ninth Circuit appeal of the injunction, thus closing this second proper avenue for review. As the States of Washington 22 Photo: Geoff Livingston and Minnesota argue in response to the second Order in Washington v. Trump, the federal government is attempting to evade the injunction by improperly repackaging previously enjoined conduct as a new Executive Order. Other lawsuits also have renewed their challenges to the travel bans in response to the second Executive Order. Hawaii was the first, followed soon after by the American Immigration Council, which on Friday filed an amended complaint, a new request for injunctive relief, and a new motion class certification in Ali v. Trump. The plaintiffs in these and the other cases updated this past week make a strong showing that the second order continues the unlawful discrimination against Muslims contained in the first Order, and must be rejected on this basis.

These changes may keep Asylum seekers from getting their day in court By Katie Shepherd Effective February 27, 2017, new changes to the asylum screening process could lead to an increased number of deportations of asylumseekers who fear persecution upon return to their home country. On February 13, 2017, U.S. Citizenship and Immigration Services (USCIS) revised its Asylum Division Officer Training Course (ADOTC) lesson plans on how to assess an asylum seeker’s credible and reasonable fear of persecution or torture. The lesson plans were revised to be consistent with the January 25, 2017 Executive Order on border security and immigration enforcement and provide guidelines to the asylum officers when conducting credible fear interviews (for those at the border or port of entry who were never previously deported) and reasonable fear interviews (for those who were previously order deported but who later seek asylum). The changes to the lesson plans are significant and may cause the denial rate to skyrocket, in which case thousands of asylum seekers would be wrongfully denied a meaningful day in court . Not only does the new guidance provide asylum officers with greater discretion to deny an applicant for reasons which may be out of the applicant’s control, but the applicant will essentially be forced to undergo a full asylum hearing with none of the safeguards in place to ensure a meaningful opportunity to present a claim for relief. Before the changes, recent arrivals to the U.S. subject to expedited removal were forced to undergo a fear screening just days after traversing hundreds of miles, sometimes by foot. Some were separated from loved ones at the border and processed by U.S. Customs and Border Protection (CBP) in a language they did not understand; many were detained for long hours or days in a cold, sterile facility, and, when the time came for their 23 fear interview with an Asylum Officer, they often had great difficulty articulating their story due to medical problems, psychological trauma, competency issues, or having their children with them listening in. In short, the odds were already stacked against them. The revised lesson plans create additional potential hurdles to those seeking humanitarian relief. Only time will tell if the revisions will lead to higher rates of deportation of asylum seekers with strong claims for relief. Now, under the new instructions, applicants in the credible and reasonable fear interview processes are required to meet a higher standard More on page 28

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