Destroying the Case In Order to Save It: Why Returning Asylum Applicants to Contiguous Territory Under INA §235(b)(2)(C) Would Often Violate Both Law and Common Sense

During the Vietnam War, an American official was once quoted as saying of the town of Ben Tre that “It became necessary to destroy the town to save it.”  This author was reminded of that quote recently when considering the approach to certain removal proceedings proposed in a recent Executive Order issued by Donald Trump and implementing memorandum issued by Secretary of Homeland Security John Kelly.  Depending on how one reads this guidance, it appears that the government may be proposing that certain asylum applicants should be returned to the country from which they fear persecution, or to a country from which they risk being returned to that country of persecution, pending a determination of whether their fear of harm upon such return is well-founded.  To force such a return in the course of adjudicating an asylum claim risks destruction of the claim and the claimant, in defiance of law and common sense.

Section 7 of the January 25, 2017, Executive Order entitled “Border Security and Immigration Improvements” provided as follows:

Sec. 7.  Return to Territory.  The Secretary shall take appropriate action, consistent with the requirements of section 1232 of title 8, United States Code, to ensure that aliens described in section 235(b)(2)(C) of the INA (8 U.S.C. 1225(b)(2)(C)) are returned to the territory from which they came pending a formal removal proceeding.

The cited section of the INA, §235(b)(2)(C), provides as follows:

Treatment of aliens arriving from contiguous territory.-In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 240.

Subparagraph (A), in turn, refers to “an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted,” and does not by its terms exclude those who are applying for asylum.

The February 20, 2017, implementing memorandum of Secretary Kelly, entitled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies,” expands further on this proposal:

Section 235(b)(2)(C) of the INA authorizes the Department to.return aliens arriving on land from a foreign territory contiguous to the United States, to the territory from which they arrived, pending a formal removal proceeding under section 240 of the INA. When aliens so apprehended do not pose a risk of a subsequent illegal entry or attempted illegal entry, returning them to the foreign contiguous territory from which they arrived, pending the outcome of removal proceedings saves the Department’s detention and adjudication resources for other priority aliens.

Accordingly, subject to the requirements of section 1232, Title 8, United States Code, related to unaccompanied alien children and to the extent otherwise consistent with the law and U.S. international treaty obligations, CBP and ICE personnel shall, to the extent appropriate and reasonably practicable, return aliens described in section 235(b)(2)(A) of the INA, who are placed in removal proceedings under section 240 of the INA-and who, consistent with the guidance of an ICE Field Office Director, CBP Chief Patrol Agent, or CBP Director of Field Operations, pose no risk of recidivism-to the territory of the foreign contiguous country from which they arrived pending such removal proceedings. To facilitate the completion of removal proceedings for aliens so returned to the contiguous country, ICE Field Office Directors, ICE Special Agents-in-Charge, CBP Chief Patrol Agent, and CBP Directors of Field Operations shall make available facilities for such aliens to appear via video teleconference. The Director of ICE and the Commissioner of CBP shall consult with the Director of EOIR to establish a functional, interoperable video teleconference system to ensure maximum capability to conduct video teleconference removal hearings for those aliens so returned to the contiguous country.

Since the Executive Order and border memorandum appear to be primarily (although not exclusively) focused on the Mexico/U.S. border, and the significant majority of those who seek to enter from Mexico and are placed in removal proceedings under INA §240, rather than being admitted into the U.S. or removed without §240 proceedings, will be those who have established a credible fear of persecution and seek to apply for asylum, one’s attention is naturally drawn to how these directives might operate with respect to such asylum applicants. It is true that there will be others who could be subjected to this §235(b)(2)(C) procedure, and indeed there have been “port courts” held on the Canadian border under this procedure for some time, but asylum applicants at the Mexican border seem likely to be among the principal groups affected by an expansion of §235(b)(2)(C) usage under the Executive Order and implementing memorandum.

When the U.S. government seeks to return an asylum applicant to Mexico pending further proceedings, there are three logical possibilities. First, the person may be a citizen of Mexico.  Second, the person may be a citizen of some third country, but have a valid immigration status in Mexico which would allow them to remain there.  Third, the person may be a citizen of some third country and lack valid immigration status in Mexico.  In the first and third cases, returning the person to Mexico under §235(b)(2)(C) pending removal proceedings would be deeply problematic.

If a Mexican national is claiming a well-founded fear of persecution in their home country of Mexico, then returning them to Mexico, pending a determination of whether that fear is indeed well-founded, would be nonsensical. One would hope it is obvious that a journalist at risk due to his reporting on abuses by members of the Mexican military, for example, should not be returned to the jurisdiction of that military, and so placed again at risk of persecution, pending a determination of the magnitude of that risk. A former police officer killed by a drug cartel will not be helped by a subsequent determination that yes, he had a well-founded fear of this occurring. If Mexico is the place where an asylum applicant fears persecution, then it would make no sense to return that applicant to Mexico before determining whether this fear is justified.

Returning a Mexican national to Mexico prior to determining the well-foundedness of that Mexican national’s fear of persecution would also violate the law. Section 241(b)(3) of the INA indicates that, with limited exceptions not at issue here, “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (often referred to as “CAT” for short) similarly restricts the ability of the United States to return someone to a country in which that person will be tortured. While the issue has not previously been litigated, so far as this author is aware, because the United States has not been brazen enough to attempt to return someone to their country of claimed persecution or torture pending a decision on whether they will indeed be persecuted or tortured, there is a strong argument that these prohibitions would be violated by a §235(b)(2)(C) return to Mexico of a Mexican asylum applicant.

Returning to Mexico a non-Mexican asylum applicant who had passed through Mexico, but lacked any immigration status there, could create similar practical and legal problems, because of the possibility of such a person’s being deported from Mexico back to their home country. In that event, irreparable harm could befall the asylum applicant before their application was processed, and it could be difficult for them to get back to the U.S. border to have their application processed at all.  Moreover, by potentially causing the return of the asylum applicant to a country where they would be persecuted or tortured, such action would again be deeply problematic under INA §241(b)(3) and the CAT.

Another problem with returning non-Mexican nationals to Mexico pending a removal hearing is that Mexico has indicated it will not accept them. It is true that in Jama v. ICE, 543 U.S. 335 (2005), a case involving removal to Somalia, the Supreme Court indicated that the advance consent of a receiving government was not a necessary precondition for certain removals, but trying to return asylum applicants to Mexico without Mexico’s permission could create mind-boggling consequences. Does the Trump Administration envision pushing people out onto bridges across the international boundary, despite knowing that Mexico will not receive them on the other end of the bridge, thus creating a sort of impromptu refugee camp in the middle of each bridge which would lead to substantial human suffering as well as blocking traffic? I certainly hope not.

It may be that DHS will understand these problems, and recognize that, in the language of Secretary Kelly’s memo, it is not “appropriate and reasonably practicable” or “otherwise consistent with law and U.S. international treaty obligations” to return most asylum applicants to Mexico pending their removal proceedings. In that case, the proposed expansion of §235(b)(2)(C) will have comparatively little practical effect.  It is reasonable to be concerned, however, about whether the proposal to expand use of §235(b)(2)(C) will indeed be cabined by these bounds of law and practicality.

 

No Matter How Many New Travel Bans Trump Issues, Maximum Power Does Not Mean Absolute Power

By Cyrus D. Mehta and Sophia Genovese-Halvorson

We have numerous justifiable concerns with the immigration policies of the Trump Administration on behalf of our clients and all Americans who feel that our values are being undermined, especially the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Fortunately, courts across the country seem to agree except for one. Most notable were United States District Judge Robart’s nation-wide temporary restraining order (TRO) of the EO in the Western District of Washington and United States District Judge Brinkema’s Virginia-wide injunction against the EO in the Eastern District of Virginia. Due to these and many other orders, as well as heavy backlash, the Trump Administration has now stepped back and have stated that they will replace the January 27 EO with a new Executive Order sometime next week that will survive judicial scrutiny. It is our view, however, that even this new EO in whatever way repackaged will be unconstitutional under the Establishment Clause of the First Amendment to the U.S. Constitution.

As a reminder, the January 27 EO suspended for 90 days the entry of persons from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, suspended the U.S. Refugee Admissions Program for 120 days, and banned Syrian refugees indefinitely, unless they received an exemption from DHS for being a “religious-minority.” The EO immediately disrupted the lives of thousands of people, from non-immigrants, immigrants, LPRs, and even dual-citizen holders. The first suit against the EO came only a day after its enactment in the Eastern District of New York, which issued an emergency stay that temporarily blocked the government from sending people out of the country after they have landed at a U.S. airport with valid visas, including green card holders. There were several other injunctions that followed. Then the States of Washington and Minnesota filed suit in the Western District of Washington, requesting, among other things, a restraining order on the ban. Judge Robart issued a nationwide temporary restraining order against the ban, which was affirmed by the Ninth Circuit. Judge Robart’s ruling on the merits is still pending. Meanwhile, Judge Brinkema in the Eastern District of Virginia granted a Virginia-wide injunction against the EO, citing specifically to the Establishment Clause.

President Trump continues to argue that the President has extensive powers granted to him under the Immigration and Nationality Act (INA) § 212(f), 8 U.S.C. § 1182(f), and proffers that the judiciary cannot exercise jurisdiction over an EO due to the plenary powers doctrine. In relevant part, INA § 212(f) states that,

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

However, as Judge Brinkema rightfully pointed out in her decision, “maximum power does not mean absolute power.” Aziz v. Trump, 2017 U.S. Dist. LEXIS 20889, at *11 (E.D. Va. Feb. 13, 2017). In her analysis, Judge Brinkema reaffirms that the U.S. Constitution is the supreme law of the land, and that no one, not even the President, can violate its terms. Citing to landmark cases such as Zadvdas v. Davis, 533 U.S. 678 (2001) (finding that the power of the Executive is “subject to important constitutional limitations,” holding that LPRs are entitled to due process rights, and that their indefinite detention is a violation of those rights), Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (noting that the President’s Article II powers are subject to review, holding that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention), among others, she proves this point.

The Ninth Circuit that affirmed Judge Robart’s TRO also provided precedent on the reviewability of the Executive, citing to Boumediene v. Bush, 553 U.S. 723, 765 (2008) (specifically noting that the political branches cannot “switch the Constitution on or off at will” and providing the right of habeas review to a non-citizen outside the US) and INS v. Chadha, 462 U.S. 919 (1983) (noting that Courts are empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.”). The Ninth Circuit goes so far to say that even under Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court can review the actions of the Executive branch, noting that but for their ability to review, there would be no “facially legitimate and bona fide reason” test to measure executive exercises of immigration authority.

In short, there is no doubt that Trump’s Executive Orders are subject to review when there is an alleged violation of the Constitution. But what specifically is unconstitutional about Trump’s ban? Or a rewrite of the ban even if it does not apply to lawful permanent residents or non-immigrants who have already been in the United States? One indication of the new EO by DHS Secretary Kelly is that it would give time for people to come back in , and would presumably include the same 7 nations whose nationals would be barred from future entries.

The Establishment Clause

The Establishment Clause argument has great merit, and it is the opinion of these authors that this argument will likely prevent Trump from prevailing on even his latest Executive Order, where it is likely he will include even non-Muslim countries, so as to appear non-discriminatory. The Virginia Court, in relevant part, explains that,

“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” The Supreme Court has articulated various tests for determining whether that command has been violated. The first such test is that the law “must have a secular…purpose.” “In the past, [this] test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing” one religion over the other. The secular purpose requirement “‘nevertheless serves an important function,’” because “[b]y showing a purpose to favor religion, the government sends the…message to…nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members.” This message of exclusion from the political community is all the more conspicuous when the government acts with a specific purpose to disfavor a particular religion. (internal citations omitted).

(Aziz, at *13-14).

In order to assess whether there was discriminatory intent in the January 27 EO, Judge Brinkema cites heavily to statements made by Trump during his campaign, especially noting that a “Muslim Ban” was a central feature of his platform. She also pointed to post-election and post-inaugural interviews where he speaks about the need to prioritize Christian refugees. She also cites to a particularly intriguing quote by Rudy Giuliani, who stated after the EO’s enactment, that “when [Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’…And what we did was, we focused on, instead of religion, danger—the areas of the word that create danger for us…Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are [sic] substantial evidence that people are sending terrorists into our country.” Additionally, Judge Brinkema noted that post-hoc statements by DHS Secretary Kelly and White House Chief Counsel proclaiming that this is not a Muslim ban will be given little weight because we are looking to past intent in our analysis.

These statements taken together go to show that the ultimate aim of the Trump Administration is to ban Muslims. Even in light of the new EO, which may or may not include non-Muslim majority countries, these statements cannot be washed away. The intent to ban Muslims is there. The intent to violate the Establishment Clause, without outright saying it, is there. “‘The world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office.” Aziz, at *15. Trump’s new EO is only being reissued because he and his Administration know it is likely that his January 27 EO is unconstitutional. Essentially, the new EO will be a repackaging of the old. The intent, therefore, remains to ban Muslims. This is the case even if the new EO proposes to ban future entrants. While people with no ties to the US may not have the same constitutional rights as lawful permanent residents, such a person who wishes to visit a US citizen relative or attend a US educational institution could still likely be able to challenge an unconstitutional EO pursuant to Boumediene v. Bush and Hamdi v. Rumsfeld.

Balancing the Government and State’s Interests

Given that plaintiffs can likely prevail on the Establishment Clause argument, the government must prove that its national security concerns are bona fide. This means that the government must present evidence to support its assertions that these EOs are vital for the preservation of national security. Judge Brinkema again notes that in the Virginia case, the government failed to provide any evidence to support their claim. The Ninth Circuit also noted that no evidence had been proffered to point to terrorist threats of nationals from the original seven banned countries. In fact, Judge Brinkema states that the only evidence offered in this regard is the declaration of 10 national security experts who declared that the January 27 EO only serves to make the country less safe. It is possible, though, that a court may follow what the Massachusetts district court in Louhghalam v. Trump did, and grant the President this authority and not find discriminatory intent (although the court rendered this decision to justify not extending the injunction indefinitely, which it did initially, and did not analyze the discriminatory intent).

It is clear to us, and hopefully to a court that hears the new challenge,  that the discriminatory intent will still exist in this new EO, thereby remaining in violation of the Establishment Clause. While it remains unclear if courts will find that this new EO puts forth facially legitimate national security concerns, it will still possess discriminatory intent, specifically banning Muslims, and will fail under the “bona fide” prong put forth in Kleindienst. See also American Academy of Religions v. Napolitano, 573 F.3d 115 (2009).  If the EO is found to possess facially legitimate national security concerns, but also formed in bad faith, it will be up to the courts to decide if these national security concerns have enough muster to overcome constitutional constraints. But history has repeatedly shown that national security concerns have been conveniently and falsely invoked even to deprive US citizens of their rights as with the shameful internment of Japanese Americans.

These national security concerns, in our opinion,  are invalid and cannot even pass the facially legitimate prong. Immigrants and refugees face numerous screenings before being granted admission into the United States. In addition, the immigration process can take years. The government in the January 27 EO proceedings failed to offer evidence that these processes were defective in their ability to screen out security threats. Further, it is unlikely that a terrorist would go through the trouble of filing an nonimmigrant/immigrant petition, only to be vetted several times over, then be subjected to a consular interview, and then still have to make it through Customs and Border Protection. It is an inefficient means to their end. Even attempting to ban prospective entrants who have not had ties with the United States cannot be justified if the ban violates the Establishment Clause. Since Marbury v. Madison, 5 U.S. 137 (1803),  the Supreme Court has recognized that when a government action is in conflict with the Constitution, it is for the judiciary to say what the law is. This is the wonderful balance that preserves American democracy. White House advisor Stephen Miller was wrong to assert that an unelected judge cannot check the President’s power in the area of immigration. The will of the majority, even in a democracy, cannot trample upon the rights of others. If that happens, the judiciary applies the breaks on such abuse of power so as to protect those who are trampled upon by the majority.

But most importantly, the majority of people seeking to temporarily visit or immigrate to the United States are peaceful people. Just because they share a different religion, worldview, or skin tone than some Americans does not mean that they are somehow violent or a threat. In fact, the opposite is true. Immigrants have been critical in the continued advancement of our country. From science and technology, to social ingenuity and progress, immigrants have helped to continue moving our country forward. To equate immigrants or non-immigrants, especially those from Muslim-majority countries with terrorists is not only bigoted, but it is simply untrue. Profiling all people from a specific country cannot serve as a proxy for individualized suspicion and guilt. It is also a sloppy law enforcement technique as an individual who desires to harm the country can evade being part of the profile. There are other smart law enforcement techniques that have been successfully deployed to track and apprehend people who intend to do us harm than profiling all people of a country.

President Trump derives his authority to assert maximum power through the plenary power doctrine, which arose from a Supreme Court case in the late 1800s, Ping v. United States, 130 U.S. 581, that upheld the racist Chinese Exclusion Act. In the 21st century, after the United States has made such strides in civil rights, women’s rights, and marriage equality, there is no longer place for plenary power as a justification to violate the Constitution. Allowing President Trump to assert such maximum power, based on the plenary power doctrine, only takes America back more than a hundred years after all the progress that has been achieved. The plenary power, as asserted in the travel ban EO, also sends a wrong message to the world that America is no longer a welcoming place for people to travel, do business, temporarily work, or to make a permanent home. Being unwelcoming, arbitrary and intolerant is inconsistent with the notion of America as a great nation. On this President’s Day, it is important to reflect whether now is the opportune moment to reassess the plenary power doctrine that was grounded in a racist law whose purpose was to exclude Chinese nationals just as the current or future EO is aimed against banning Muslims. It is high time for the courts to once and for all recognize the supremacy of the Constitution over the president’s absolute power.

[Sophia Genovese-Halvorson, who is pursuing her JD degree at Brooklyn Law School,  is a Legal Intern at Cyrus D. Mehta & Partners PLLC]

Resisting President Trump’s Visa Revocations

President Trump signed an Executive Order the afternoon of Friday, January 27, 2017 which, according to its introduction, is intended to “protect Americans” but had the effect of banning travel of certain persons into to the United States who are mainly nationals of mainly Muslim countries. Citing INA 212(f), which broadly authorizes the President to suspend “any aliens or class of aliens into the United States” that would be detrimental to its interest, the EO became effective as of the date of signing, though it is currently subject to a Temporary Restraining Order. Prior to the TRO, the issuance of the EO without notice caused a great deal of hardship to legitimate travelers who had already embarked on their journey to the United States and stranded others who had not yet commenced their journey. The EO has been subject to widespread condemnation, protests and lawsuits. Although there is much debate on the validity of the EO and whether the President has authority to impose a blanket ban on legitimate travelers from predominantly Muslim countries, which appeared to be consistent with his campaign statements to impose a “Muslim ban,” there has not been much discussion on the practical impact of revocations of the underlying nonimmigrant and immigrant visas that had been issued to at least 60,000 individuals when the EO took effect.

Among the EO’s key provisions are, although further details can be found on our firm’s FAQ:

  • A 90-day ban on the issuance of U.S. visas to and entry to the United States of anyone who is a national of one of seven (7) “designated” countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
  • An immediate review by the U.S. Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threat[s].” This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
  • The suspension of the U.S. Refugee Admissions Program (USRAP) for 120 days.
  • The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews.
  • A requirement that all individuals who need visas apply for them in person at U.S. consulates, rather than allowing “mail-in” or drop-box applications.

Although the EO is currently not in effect as a result of the TRO issued by the U.S. District Court for the Western District of Washington on February 3, 2017, this blog will focus on the impact of the revocation of a nonimmigrant visa of an individual who is already in the United States assuming the TRO is lifted. A panel in the Court of Appeals for the Ninth Circuit is currently considering the government’s appeal for an emergency stay of the Western District of Washington TRO. [Update: later in the day on February 9, after this blog post was published, the Ninth Circuit panel issued a published decision denying the government’s emergency motion for a stay pending appeal.] Even if the Ninth Circuit does not issue the stay, the government will most likely seek an emergency stay from the Supreme Court, and thus the fate of the EO, and of the hundreds of thousands impacted under it, still hang in balance at the time of writing.

In conjunction with the EO, the Department of State issued a notification provisionally revoking all valid immigrant and nonimmigrant visas, as follows:

Upon request of the U.S. Department of Homeland Security and pursuant to sections 212(f) and 221(i) of the Immigration and Nationality Act and 22 CFR 41.122 and 42.82, and in implementation of’ section 3(c) of the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals, I hereby provisionally revoke all valid nonimmigrant and immigrant visas nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to the exceptions discussed below.

The revocation does not apply to visas in the following nonimmigrant classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas.

The revocation also does not apply to any visa exempted on the basis of a determination made by the Secretaries of State and Homeland Security pursuant to section 3(g) of the Executive Order on a case-by-case basis, and when in the national interest.

This document is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any person.

What is the impact of the revocation of a visa of someone who is already lawfully in the United States? Take the example of a national from one of the banned countries who was issued an F-1 student visa, and has already been admitted into the United States in F-1 status when the visa is revoked. The revocation of the visa would not impact this student’s ability to maintain F-1 status so long as she is enrolled in the designated school and is complying with all the other terms of her status, such as not engaging in unauthorized employment. If the student leaves the United States, assuming the EO is in effect, she will not be able to come back to the United States. Hence, it is imperative to remain in the United States and continue to maintain status until such time that the ban has been lifted, and the revocation of the underlying visa has also been lifted. After the court issued the TRO, the State Department restored the visas and the above revocation notification is not in effect. However, the visas of the nationals of the 7 countries will again likely get provisionally revoked if the TRO is stayed.

Some people who came into the United States while the ban was still in effect had their visas actually cancelled. This is different to the situation when the visa got provisionally revoked after the EO came into effect. They would have to seek new visas or will need to have their admissions without a visa waived if they arrive at a port of entry so long as the ban is not in effect. Unless there is an emergent circumstance for a person with a cancelled visa to attempt to come to the United States and seek a waiver, it is advisable that such a person apply for a new visa before entering the United States.

In the event that the President adds other countries in a future Executive Order, those nationals will also be subject to visa revocation, and if they are already in the United States, they must maintain status. For example, if the affected national is in H-1B status, he must continue to remain in the employment of the petitioning entity that applied for the H-1B visa classification on his behalf. This individual may also seek an extension of status or change of status while in the United States.  It is also likely that visas will get revoked of persons even if their countries are not on a banned list if there is basis or suspicion of future inadmissibility such as becoming a public charge. Even prior to President Trump, the DOS was provisionally revoking visas if a nonimmigrant in the US was convicted of a driving while intoxicated offense. A person caught in this situation besides maintaining status, and is unable to overcome the ground of inadmissibility at the US consulate (which is unlikely if there is a blanket ban on the person’s country) should remain in the United States and continue to maintain status. So long as the individual maintains status, and does not stay year beyond the expiration of the I-94, the revocation of the visa should also not trigger unlawful presence for purposes of triggering the 3 and 10 year bars under INA 212(a)(9)(B).  This individual must also make efforts to become a permanent resident as soon as possible either through a family-based or employment-based sponsorship. Adjusting to permanent resident status in the United States would be the solution to the problem.  The government has clarified that the travel ban under the EO does not apply to permanent residents. Still, permanent residents must also be careful to not be coerced in signing I-407 abandonment applications. Permanent residents have a right to seek a removal hearing, and the government has a heavy burden to provide that a permanent resident is not entitled to that status.

Note that a nonimmigrant whose visa has been revoked is technically subject to removal. INA 237(a)(1)(B) provides:

Present in violation of law. _ Any alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorization admission into the United States as a nonimmigrant) has been revoked under section 221(i) is deportable.

Thus, even if one is not in violation of the INA, but whose nonimmigrant visa has been revoked, is amenable to be placed in removal proceedings. If the sole basis of placing the individual in removal proceedings was due to the revocation, under INA 221(i), the revocation can be challenged in removal proceeding. There is an arguable basis to challenge such a revocation based on INA 212(f), which provides in part:

Suspension of entry of imposition of restriction by President. – Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamations, and for such period as he shall deem necessary, suspend the entry of aliens any restrictions he may deem to be appropriate.

INA 212(f) applies to a suspension of an entry into the United States. An individual who was previously admitted in nonimmigrant status has already made such an “entry” into the United States and should therefore not be subject to a visa revocation under INA 212(f).

Finally, the revocation of an immigrant visa, once the individual has already been admitted as a permanent resident, should have no adverse impact. There would obviously be an adverse impact if the immigrant visa is revoked before the individual has proceeded to the United States. Even under these circumstances, if the immigrant visa is revoked unbeknownst to the person and could not have been ascertained through reasonable diligence, she can seek a waiver under 212(k) either at the port of entry or in removal proceedings, and if victorious, can be admitted as a permanent resident. If the EO takes effect, the DOS will revoke the visas en masse as was done the last time, and this individual is not likely to be aware of the revocation while on the journey to the United States and would thus be a good candidate for a waiver under INA 212(k).