CVT Explainer on the Refugee/Immigration Executive Order | The Center for Victims of Torture

CVT Explainer on the Refugee/Immigration Executive Order

Thursday, February 9, 2017

Author Marie Soueid is CVT policy counsel.

Introduction – Where do we stand?

The President’s recent Executive Order (EO), essentially halting some immigration and all refugee resettlement for a period of time, went into effect on Friday, January 27, 2017, and has since been subject to a flurry of legal challenges. Although it is sweeping in its restrictions on all kinds of immigration and travel to the United States, particularly for visa-holders from seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen), this post will largely concentrate on the provisions related to refugee resettlement, the impact on family reunification for refugees and asylees, and the risk of removal of torture survivors.

The EO, as signed by the President, halts the refugee resettlement program, which has been a cornerstone of American foreign policy since 1975, for 120 days while the Department of Homeland Security and State Department review the program.  Arrival of Syrians through the refugee resettlement program is suspended indefinitely. When the resettlement program resumes after four months (for non-Syrians), the number of those resettled through the program would plummet from 110,000 refugees originally slated to arrive in FY 2017 to 50,000. The EO also changes the current priorities for resettlement, which focus on vulnerability, to religious minority status. In other words, refugees from a religious minority in their country of origin would be prioritized for resettlement over members of a non-minority religious group, regardless of vulnerability. 

Implementation of the EO puts refugee or non-refugee torture survivors at risk of being turned away at U.S. ports of entry and sent back to situations where they would likely be tortured or face other persecution, in contravention of U.S. laws prohibiting such practices. It also means that family reunification will be delayed for refugees and asylees during the period of time that the bans on refugees and visa-holders from the seven Muslim majority countries are in effect.

Against this background, individuals and states affected by any of the EO’s provisions have brought legal challenges in court. Several members of Congress have put forward legislation to both overturn it and to constrain the president’s ability to issue such sweeping immigration restrictions. Since the situation is changing rapidly, please note that this CVT Explainer is current as of February 9, 2017.

The litigation

On the EO’s provisions dealing with refugees, the legal challenges focus on religious discrimination and the constitutional provisions prohibiting the government from favoring one religion over another. On torture survivors specifically, U.S. and international law have long prohibited the return of individuals to a country where there are substantial grounds for believing that the individual may be subjected to torture if returned. Those challenging the EO argue that implementing it may force the return of individuals in violation of that prohibition.

Several different courts across the country have taken up challenges to this order and have come to different conclusions on temporary halts (often called temporary restraining orders or TROs) on enforcing the EO. Different courts have suspended parts of the EO and prevented the Department of Homeland Security from deporting individuals as a result of the EO.

Most notably on Friday, February 3 in Seattle, Washington, a judge appointed by George W. Bush placed a TRO on the enforcement of the Executive Order in a lawsuit brought by the states of Washington and Minnesota, finding that the states would likely succeed on the merits challenging the EO. Although Washington and Minnesota brought the suit, the court agreed with the states that the TRO should apply uniformly to all points of entry into the United States. The federal government appealed this TRO, arguing that it is within the power of the president to issue the EO and that the TRO is too broad. Three judges on the federal appeals court, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit), disagreed and refused to overturn the TRO, which still applies nationwide.

As a result of this order, the entire EO is suspended across the country, allowing refugees and visa-holders to enter the United States under prior review and visa approval processes. Refugees are still the most intensely vetted people to enter the United States. The TRO did not modify refugee screening procedures; it simply is allowing people who already went through the long and arduous process of background, security, identity and medical checks and received approvals for admission to the United States as a refugee to enter the United States as a refugee.

At the moment, because the decision in the Ninth Circuit applies nationwide, refugees and visa-holders can continue to arrive as slated. However, this TRO on the Executive Order is only temporary. The federal government may appeal the decision to the Supreme Court and have to convince five of the eight justices to remove the TRO. If unsuccessful in this effort, the TRO will last a matter of weeks until courts can hear the cases and decide whether a preliminary injunction stopping the EO, or parts of it, permanently, is necessary. Arguments and decisions on these cases will happen in the coming weeks, but are certain to be appealed by the losing side, which could extend litigation for several months.

Complicating matters further, different courts have come to slightly different preliminary conclusions on the legality and constitutionality of the president’s actions in this EO. If federal appeals courts across the country do not agree on whether these actions are legal, there is likely to be a “circuit split,” meaning different appeals courts have ruled on the matter differently. In the interest of uniformity on immigration matters, the Supreme Court, with only eight judges, may then take up the issue to establish uniformity. In other words, none of the TROs so far give a definitive answer to whether any of the actions taken in the EO are legal or constitutional.

What can Congress do?

Regardless of what happens in the litigation, Congress has the power to overturn this order through legislation. Several members of Congress have already put together legislation either overriding the EO or restricting the president’s authority over immigration matters. Even if courts rule that the president acted constitutionally in issuing the EO, Congress may still exercise its lawmaking power to restrict the entire order or only certain aspects. It has not yet exercised that power.

Download this Explainer as a PDF here.

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