The Trump administration is taking its third swipe at travel restrictions with new rules that carry key differences from two previous attempts, but local experts say this new version is likely to see legal challenges as well.
New restrictions announced over the weekend apply to five of the countries listed in the first and second attempts at a travel ban: Syria, Iran, Libya, Somalia and Yemen. The new order adds Chad, North Korea and Venezuela, and lays out certain exceptions, such as for students from Iran.
The White House says the new rules were set after a review of other countries’ information-sharing regarding residents traveling to the United States.
“Following an extensive review by the Department of Homeland Security, we are taking action today to protect the safety and security of the American people by establishing a minimum security baseline for entry into the United States,” President Donald Trump said in a press release on the new order. “We cannot afford to continue the failed policies of the past, which present an unacceptable danger to our country.”
Sudan, which was listed in the first two attempts at travel restrictions, has been removed from this latest iteration. The new rules scuttled an Oct. 10 Supreme Court hearing on the previous travel restrictions, which stemmed, in part, from a lawsuit from the American Civil Liberties Union.
“Six of President Trump's targeted countries are Muslim,” said ACLU Executive Director Anthony D. Romero in a Sunday statement. “The fact that Trump has added North Korea — with few visitors to the U.S. — and a few government officials from Venezuela doesn't obfuscate the real fact that the administration's order is still a Muslim ban. President Trump's original sin of targeting Muslims cannot be cured by throwing other countries onto his enemies list.”
The ACLU of Nevada is still pursuing a Freedom of Information Act case against the U.S. Department of Homeland Security and U.S. Customs and Border Protection, seeking documents related to the rollout of the ban. Legal Director Amy Rose says other ACLU affiliates have filed litigation over similar information requests.
She said the information could help show whether the ban was implemented without regard to how it would impact people coming through international airports.
“We want to see what instruction they gave locally at the Las Vegas airport, and how they tried to implement that,” she said. “Maybe there wasn’t much instruction at all. That would also be a problem.”
Legal experts say the new order’s exceptions may become ammunition in any legal challenges. Michael Kagan, director of UNLV’s Immigration Clinic, said “travel ban 3.0” has none of the time limits that previous orders had. Countries can make changes that would bring them in line with the new rules, but are otherwise indefinitely listed.
Countries that do comply can still face challenges. The administration says that Somalia, for example, will still face enhanced scrutiny despite “generally” satisfying “minimum information-sharing requirements.”
“The president is essentially overriding the structure of immigration law that was enacted by Congress,” Kagan said, “making it impossible for people based on national origin to reunite their families.”
The administration also carves out an exception for Iranian students, while saying they will still face enhanced screening and vetting.
“Why is that?” Kagan said. “The clearest explanation seems to be to avoid some of the people who have got the strongest litigation positions against the government, but that seems to undermine the security rationale.”
Iran sent more than 9,600 students to American colleges and universities from 2008 to 2012, ranking 19th out of 74 countries according to the Brookings Institute. These foreign students paid more than $191 million in tuition and almost $133 million in living costs.
Kagan said universities are probably relieved at the exemption, since so many students come from Iran.
“That will relieve a lot of the negative effect on universities,” he said. “I’m not sure it makes as much sense legally because it looks arbitrary and it looks driven by litigation strategy.”
At the “10,000-foot level,” Kagan said, the order looks a lot more defensible than previous bans since it was built on recommendations stemming from an international analysis.
“The courts tend to want to defer to the executive branch and I think that’s what the Trump administration is relying on,” he said.
Athar Haseebullah, a staff attorney at the Legal Aid Center of Southern Nevada who was speaking as a member of the Muslim community and not a representative of the center, said there are a handful of mosques in Southern Nevada. He said the president’s first set of travel restrictions sparked chaos and panic.
“It’s heartbreaking,” Haseebullah said. “Someone I know, initially when it happened, they had very sick relatives in Syria that they were hoping to get over here. After the first ban happened, from that point on ... you could see the hope eviscerate from people’s eyes.”
This new version, he said, still targets Muslims. He said there are so few travelers from North Korea that adding the country to the list was moot, and Venezuelans face looser restrictions than some other nationals on the list.
“In spirit this kind of still has the same issues” as the previous bans, Haseebullah said.
“You’ll also see other countries that have a known history of exporting terror not added to the list,” he said, pointing to the exclusion of Saudi Arabia, where most of the 9/11 hijackers were from.
Haseebullah said people should read the new rules and, if possible, consult with an attorney if there are concerns about a particular immigration situation.
The restrictions and limitations took effect Sept. 24 for some. On Oct. 18, the order will go into effect for all other foreign nationals subject to the suspension of entry and for nationals of Chad, North Korea, and Venezuela.
Trump had also issued a temporary ban on refugees, which expires Oct. 24. Kagan said the Trump administration is talking about drastic cuts to the U.S. refugee program, which has historically been the largest in the world.
“That’s separate from this travel ban,” he said. “This is generally an anti-refugee administration.”
People can learn more about the new restrictions at a UNLV event on Friday titled “Trump's Travel Ban: Ramifications in Las Vegas and Beyond.” The free public event will be held at the UNLV William S. Boyd School of Law from 1:30 to 3:30 p.m. in the Thomas & Mack Moot Court Room.