Why Trump's Third Attempt at a Travel Ban Just Might Stick

The president's new, indefinite ban on travel includes non-Muslim-majority countries, which could help it hold up to legal scrutiny.

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Sep 25 2017, 9:12pm

US President Donald Trump on September 25, 2017 in Washington, DC. MANDEL NGAN/AFP/Getty Images

Just days after he took office as president in January, Donald Trump issued an executive order banning all refugees, along with travelers from seven Muslim-majority countries, from entering the United States. Supporters argued their newly anointed champion was simply keeping a campaign promise geared toward reducing the threat of violent terrorism from abroad, but the unprecedented move sparked legal challenges and protests at airports nationwide. A federal judge—much to Trump's rage on Twitter—temporarily halted the policy, which critics said unfairly (and unconstitutionally) singled out Muslims.

In March, America got a taste of Travel Ban 2.0, the revised order Trump rolled out in an attempt to put the controversial policy on firmer legal footing. That version eliminated previous restrictions on foreigners with US visas and permanent residents (a.k.a. green-card holders), and specifically exempted travelers from Iraq. But once again, legal battles came quickly—critics said past statements by Trump advisers and the president himself made clear the intent of the policy was to target a religious minority for discrimination. Even so, the White House won a victory of sorts in June, when the Supreme Court ruled that those who didn't have a "bona fide relationship" with someone in the US could, at least temporarily, be blocked from entry. Then, earlier this month, the high court reversed a federal judge's exemption of the ban for refugees backed by resettlement programs based in the US.

If you weren't already struggling to keep up, Trump signed a third iteration of his travel ban on Sunday, just in time for the expiration of the last one. This time, the president's proclamation isn't limited to countries with Muslim majorities—it also includes North Korea, Chad and Venezuela. Familiar nations from previous bans include Iran, Libya, Somalia, Syria, and Yemen. Sudanese travelers have been spared this go-around after the government there apparently bolstered security, while Iraqis will face extra scrutiny from the Department of Homeland Security. According to the White House, the new ban does not target green-card holders or people with current visas. But the new policy promises to ban travel indefinitely, rather than for a set period of time, and its explicit provisions vary by country. The Venezuela ban, for instance, basically only impacts government officials and their families, while just about anyone who wants to come here from North Korea, Somalia, or Syria is in serious trouble.

This new policy is allegedly the product of an "in-depth, worldwide, 90-day review" of the global security situation, as the New York Times reported. But does it stand much hope of surviving seemingly inevitable court challenges, which are still being mounted against his previous bans? Why was this trio of non-Muslim majority countries added into the mix? And most of all, what does the new ban mean right away for the millions of potential travelers impacted?

To make sense of the latest chapter in the ongoing saga that is travel policy under Donald Trump, VICE reached out to Stephen Yale-Loehr, an immigration law professor at the Cornell Law School and renowned expert on the topic. Here's what he had to say.



VICE: OK, so in broad strokes, what does the new travel ban actually do?
Professor Yale-Loehr: Starting October 18, it changes the travel ban, so that certain individuals from certain countries either cannot enter, or are going to be subject to additional measures before they're allowed to enter the United States. It's a lot more tailored than before; it's not everyone from a particular country, and some of the countries that are now included are not Muslim-majority countries. It was interesting that also refugees are not part of a new travel ban. So the Trump administration seems to have learned from its earlier defeats in court, and have come out with a much more focused travel ban on particular types of people—in particular countries—who they deem to be more of a security risk.

It's different, it seems, insofar as it expands beyond countries often seen by some Americans as being hotbeds of radical terrorist activity. But who is affected, specifically?
Well, for example, for North Korea and Syria, all non-immigrants will not be able to come to the US. For citizens of Iran, most non-immigrants will not be able to enter, but people who come in on student visas will be able to enter [with enhanced screening]. For Chad and Libya and Yemen, non-immigrants who come in on what we call tourist visas, or B1 business visas, will not be allowed to come [now], but other kinds of non-immigrants can enter. For Venezuela, there are certain government officials who will not be able to enter the US, but others can.

Now, all of this is not limited in time, but can be changed once the government thinks that any of these [foreign] governments have improved their security, vetting, and information-sharing capabilities.

To back up for a second, what do we mean by "non-immigrants" in the context of this new policy?
A non-immigrant is someone who comes to the US temporarily—like a student, tourist, or a temporary worker—as opposed to what we call an "immigrant," which is also known as a green-card holder.

How does this fit into the timeline of the existing travel ban?
The revised one that came out in March sort of had two different things: One was for most people, and then there was a separate one for refugees. The refugee travel ban is scheduled to expire on October 24. As far as I know, that travel ban provision is still in effect. After then, there's nothing in the new travel ban order that would affect refugees. So refugees are still stuck until October 24, but after that, there won't be the same restrictions we see now. For everyone else, the administration is still abiding by the Supreme Court decision in June, as to which other individuals can be admitted. They agreed that if a person has a credible claim of a bona fide relationship with a person or entity in the US, that they can enter the US.

How could this new ban affect the case currently going through the Supreme Court?
It gets complicated, and particularly, it'll be interesting to see if the Supreme Court decides that the whole case now has changed enough that they don't want to decide it anymore. The Supreme Court asked the parties over the summer to brief this issue—known as "mootness"—and just today, the US solicitor general sent a letter to the Supreme Court saying that, because of this new travel order, he's asking the court to ask the parties to add this new travel order into their briefings. [Editor's note: Early Monday afternoon, the Supreme Court canceled an October 10 hearing and called on the government and the plaintiffs to file new briefs accounting for the latest policy.]

You mentioned before that the Trump administration has clearly learned a few things from the first ban. What lessons did they seem to bear in mind on this latest edition?
I think the first one—the January one, in particular—was so broad and ill-focused, that it was easy to attack it as being targeted towards Muslims. The second one was slightly better. And this one really goes through, in the beginning, the part of the executive proclamation with a detailed chronology of the methodology the government used to determine which countries had security problems, or information-sharing problems. There are also now countries like Chad, Venezuela, and North Korea, on the most recent list, that are not Muslim-majority countries. That, combined with the fact that it's not a blanket ban on everyone from those countries, but only on specific types of people, I think, will make it much easier for the government to justify this being within the presidential authority.

It seems like the fate of this thing comes down to whether the White House can convince the courts that the new policy is not out of line with what past presidents have done. Is it?
Yes and no. Certainly, past administrations have imposed similar bans, but they've been much narrower in terms of numbers. So, for example, the government of Libya—President Obama imposed sanctions on Libyan officials, so they could not enter the US, but not on all tourists or students from Libya. In that sense, conceptually, this latest ban is within the president's authority. But the number of people who will be affected is much larger than what past presidents have done.

This interview has been lightly edited and condensed for clarity.

Follow John Surico on Twitter.

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