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President Trump’s Executive Order on Travel Ban 

I will attempt to state ONLY legal issues involved with President Trump’s travel ban. I am mindful that there are always other humanitarian, moral issues involved in any course of government action, but my opinion here are only based on facts, as applicable to our immigration law and international law.

Background on Expedited Removal:

Upon landing, a foreign national goes through inspection with the US Custom and Border Protection (CBP). The CBP can deny your entry if they believe there is justification, such as security issues, visa fraud or visa abuse etc… They will then ask you to sign an “expedited removal” order (without having to go through an immigration court) and can then immediately put you on a plane to your home country, or another safe, third country if you are eligible. If you refuse to sign an expedited removal order, they can still deport you, but you will face a very difficult time to obtain another visa at a later time. Not only that the CBP can deny entry and expeditiously remove you from the country at the airport/border checkpoints, they can do so if anyone that is undocumented were caught within 500 miles from the U.S. border. So, the practice that is happening now at the airports are NOT uncommon, but for the Trump’s Travel Ban.

Ban on Issuing New Visas:

Any nation has the sovereignty right to preclude anyone person, from any country, for any reason, to enter the country, so long as it does not violate our own Constitution and Treaties. Trump’s EO temporarily ban, for 90 days, the issuance of NEW visas of people from the 7 identified countries is within our sovereign right. Again, I am not arguing whether it is justified or the morality of any such action. Legally, the U.S. is within its right to take such action in the interest of security.

Travel Bans on Those that Have Valid U.S. Visas:

The Equal Protection Clause of the 14th Amendment of the U.S. Constitution guarantees equal protection by the states. It guarantees that all citizens shall have the same protection from any state, regardless of where they reside. The courts later extended these rights to anyone on U.S. soil. By banning travelers who have already got valid visas, we may violate the Equal Protection Clause because part our governmental branch (The U.S Department of State, the Consulate) already granted valid visas; and so, the U.S. Dept. of Home Land Security (CBP) should not arbitrarily deny them without further reasons. However, that is a weak argument because the reverse happens all the time. It is often that the USCIS approve immigrant or non-immigrant petitions, only to be denied at the U.S. Consulate abroad. The two branches of the U.S government are not mutually exclusive. That is, the two branches have the independent rights to derive at different conclusions.

Another issue is that if we deny entry for people who have been granted valid visas, we may also violate the Due Process Clause. The Due Process Clause guarantees that the government cannot arbitrary take away our life, liberty and property without having a fair trial. Because many foreigners have investments in the United States, a travel ban on their valid visas may affect their businesses and investments. For example, the business may require their presence for the sale/transfer, and that is equal to taking away their rights without justification. To prevent anyone that has “slipped-through,” even though visas have been issues, the CPB should evaluate each case in implementing the Trump’s EO, so that we do not arbitrary deprive properties of some of these travelers.

Refugees, The United Nations Committee on Human Rights, and the Vetting Process:

U.S. law, under “withholding of removal,” and the United Nation Convention Against Torture (CAT), precludes all signatory parties (the U.S. is a party) to return an individual to their home country if they were to be tortured by their government. To qualify as a political refugee/asylee, the applicant must show that he or she has been persecuted by the government, or by a group to which the government cannot or refuse to control. Alternatively, the applicant must show that if he or she were to be returned to the home country, the person will more likely than not, faces persecution or torture.

As such, if we deny entry and the person were to return to their home country, and get persecuted, then we will violate the UN’s Convention Against Torture, and also violating our regulations regarding asylum and Withholding of Removal. However, if we can temporarily remove them to the country in which the United Nations have set up refugee camps, such as what happened to the millions of Vietnamese refugees in Malaysia, the Philippines, Thailand, Indonesia, and Hong Kong, then it is acceptable. Host countries can use this temporary station to evaluate applicants’ qualifications. Most Vietnamese that escaped the communists after the fall of Saigon has gone through this process prior to coming to the United States. Even people that have escaped in 1975, immediately after the war ended, stayed in refugee camps in Guam for 4-6 months before being sent to the hosting countries. That time is needed to evaluate whether they are qualified as political refugees or if they are simply economic migrants. The period can also be used to assess security risks.

It is the UN’s fault that they have not set up such camps for Syrian refugees. For the same reason, applicants should be placed into refugee camps inside the United States if we cannot return them to Syria because of potential persecution. That time can also be used to evaluate their status. Don’t think it has not happened before. This happened throughout the 1980s when the influx of Cuban refugees came over to Florida. Camps were set up along the keys to temporarily hold asylee (asylum applicants). One should not allow refugees to come into the country prior to the vetting period, especially when their status is unclear. For example, any applicant that apply at a US border checkpoint upon entry goes through an thorough interview that sometimes take a couple days (while they are temporarily held at the border entry). Only after they have shown that there is “prima facie,” preliminary facts, that they qualified for asylum, they would be allowed to enter the U.S. Within one year upon entry, they would have to apply for asylum; and if approved, they would then apply for adjustment of status to obtain permanent residency. In the mean time, they would be issued work-permits to temporarily stay, and work in the US. As such, the application process is long, and secured, so long as we apply our own immigration law. The Obama administration by-passed that vetting process, and the media, on both sides, hyped-up the issue, and the public erroneously determined that demanding a temporary stay and the vetting process is either inhumane or extraordinary! It is not! That has always been the process for the last 60 years!

What Trump suggested here is to take four months for the vetting process and to evaluate each application. That is not illegal, inhumane or in violation of any law. As a former refugee, my family and I stayed in the refugee camps in Malaysia and The Philippines for 18 months. However, if we were to refuse entry to asylee/refugees out-right, such as CNN other elitists erroneously reported, then that practice would be in violation of every law in the book! Luckily, that is not the case here.

Conclusion:

There are two sides of argument here. Neither the media on the left nor on the right explain the law and the executive order on the travel ban as it actually is. Everyone is hyped up on one side without regards to any other issue. The Trump’s travel ban can be implemented to allow travelers who have valid visas, especially when their have business interests. Whereas, the U.S can preclude any new issuance of visas to any group of people, or country, as a matter of our sovereignty. The USCIS, CBP and DHS should issue a Memorandum and make clear as to the implementation of the EO, so that their practice is clear.

With regards to the refugees crisis, it is the UN’s obligation to set up temporary refugee camps to process refugee applications and to ensure security for the host country (refugee is an applicant from a third party; whereas, an asylee/asylum refer to people that entered the U.S. and filing such application/status). Because the U.N’s failure, countries should, and can setup their own temporary camps, to process applications while ensuring only those that are qualified may enter into the general public. Again, this process has always been applied to all refugees and there is nothing unusual about such practice should we do it now. Some European countries have already been taking such action.

Asylum applications are very complicated and the issues are often confusing even to the most experience attorneys.  Please contact our Houston Asylum Attorneys and our Houston Withholding of Removal and CAT Lawyers for more information.  Whether an asylum application is successful is based on the truthfulness of the facts presented and the evidence to support the application.  Our Asylum Attorneys and assist you in preparing and filing the application, including presenting dozens of exhibits as evidence for your application.  Please contact our office at 713-517-6645.

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