WHILE the world—and specifically the six Muslim-dominated countries—celebrated the order of two federal judges in Hawaii and Maryland blocking the new executive order issued by President Donald Trump banning entry into the US of nationals from the six countries, the 45th US President pulled a fast one via another executive action a day before the judges stopped the EO from taking effect.
On March 15, Secretary of State Rex Tillerson issued a cable to all consular posts reminding consular chiefs that on the same day that President Trump signed the second EO, on March 6, 2017, he also signed a memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security. Section 2 of the memorandum instructs the Secretary of State and the Secretary of Homeland Security, in consultation with the Attorney General, to “implement protocols and procedures as soon as practicable…that in their judgment will enhance the screening and vetting of applications for visas and all other immigration benefits, so as to increase the safety and security of the American people.”
Unlike an executive order which requires publication in the Federal Register for the public to comment, a presidential memorandum may be issued and become effective immediately.
The additional protocols and procedures in the March 6 memorandum focus on:
a) preventing the entry into the United States of foreign nationals who may aid, support, or commit violent, criminal, or terrorist acts; and
b) ensuring the proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits.
The protocols and procedures were not limited to nationals or citizens of the six countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—covered by the ban in the first executive order.
Underscoring his constitutional duty to “take care that the laws are faithfully executed,” Trump emphasized the executive branch’s commitment to ensure that “all laws related to entry into the United States are enforced rigorously and consistently,”
Bases for denying visas
To highlight the “critical importance of maintaining extra vigilance” in the “increased scrutiny of visa applicants for potential security and non-security related ineligibilities,” the State Department cable instructs consular officers not to hesitate to “refuse any case presenting security concerns under Section 221(g) of the Immigration and Nationality Act (INA) in order to explore all available local leads…or issue any other refusals or take precautionary actions pursuant to any applicable ground of inadmissibility under the INA.”
Immigration practitioners and immigrant advocates will notice that this is a virtual blanket authority to use any and all basis to deny or refuse a visa application.
The legal bases for refusing a visa application are directly related to an individual’s past and current violations or intention to violate any US immigration laws under Section 212 (a) of the INA. The grounds may be based on: health; criminal and related grounds; security and related grounds; public charge, in which the visa applicant may be applying for and getting public benefits he or she is not entitled to; labor certification and certain qualifications for certain immigrants; illegal entrants and immigration violators; documentation for certain immigrants and non-immigrants; those ineligible for US citizenship; aliens previously removed or deported from the US as well as aliens unlawfully present in the US (popularly known as TNTs); and miscellaneous violations, such polygamists and child abductors.
Screening of certain visa populations
The March 15, 2017 presidential memorandum also orders Consular Chiefs to “immediately convene post’s law enforcement and intelligence community partners under the auspices of existing visa viper or law enforcement working groups, as appropriate. These working groups will develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny.”
In short, the US Embassy will draw up a profile of visa applicants who should be subject to more intensive questioning and extreme vetting.
Once identified, consular chiefs are “required to direct adjudicating consular officers to attempt to identify individual applicants that fall within the population set during the course of a consular visa interview” and even if the temporary visa applicant may overcome the presumption of intending to stay in the US permanently under Section 214 (b) of the INA, the interviewing consular officer should “consider sending a discretionary Donkey Security Advisory Opinion (SAO) request.
Under this SAO request, the interviewing consuls must ask additional questions directly related to understanding the applicant’s answers on application forms, which may include subjects such as the applicant’s
• Travel history, previous addresses (if different from the current one), prior occupation(s) and employer(s) over the last 15 years;
• Siblings/children/former spouses not recorded or disclosed in the DS-160/260 visa applications or NIV/IVO case notes;
• Prior passport numbers;
• Phone numbers used in the last five years;
• E-mail addresses and social media handles used by the applicant in the last five years.
Mr. Trump may have lost the healthcare battle but he clearly wins this immigration and visa-related skirmish – big time.
This sneak attack may not be a fatal blow but surely is more than a technical knock-out. Are you worried yet?