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President Donald Trump is expected to hand down a controversial Executive Order on immigration within the coming days to protect the nation from terrorist attacks by foreign nationals. Although the Trump administration has not made a formal announcement regarding the proposed order yet, a leaked, unsigned copy of the President’s order has been making the rounds. We do not know whether the President has made any modifications to the order since its leak, and we do not know when exactly the order will be issued. One thing is clear, an executive order on immigration is imminent. It is rumored that the executive order will include a temporary ban on refugees, the suspension of issuance of visas for citizens of Syria and six other Middle Eastern and African countries, which are rumored to include Iraq, Iran, Libya, Somalia, Sudan and Yemen, collectively referred to as “countries of particular concern,” as well as the end of Syrian refugee processing, and the visa interview waiver program.

The passage of such an executive order although extremely controversial and unpopular, would be within the President’s executive power, if his administration determines that limiting refugee admissions temporarily and restricting the issuance of visas to persons from specific countries is of significant public interest to the United States to combat the war on terror. The administration would need to balance our country’s need to secure its borders against terrorism with the need to resolve the global humanitarian crisis we face today. Donald Trump has already passed a series of executive orders on border security and immigration enforcement authorizing the construction of a U.S.-Mexico border wall, withholding federal grant money for sanctuary cities, hiring 5,000 Border Patrol agents, reinstating local and state immigration enforcement partnerships, and ending the “catch-and-release” policy for undocumented immigrants.

The leaked copy of the executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” gives two policy reasons for enacting the executive order. First, the purpose of the order is to protect American citizens from foreign nationals who intend to enter the United States to commit acts of terrorism. Second, the order serves to prevent the admission of foreign nationals who intend to enter the United States to “exploit” the country’s immigration laws for malevolent purposes. The order highlights that following the September 11 attack on the World Trade Center, hundreds of foreign nationals have successfully entered the United States on an asylum, visitor, student, or employment visa, and have been subsequently convicted or implicated in terrorism related crimes. The order goes on to blame the State Department’s consular officials for their failure to scrutinize the visa applications of the foreign nationals who went on to commit the September 11 attacks, which resulted in the deaths of thousands of Americans.

The main provisions of the leaked order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” are as follows:

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In this segment, we bring you the latest immigration news. This month, the U.S. Department of Homeland Security released a status report on border security in the Southwestern border region. In other news we provide you with an update on the Proposed International Entrepreneur Rule, and finally we would like to remind our readers to tune into the final Presidential Debate on October 18th.

Department of Homeland Security Releases Report on Border Security for the Southwestern Border Region

On October 17, 2016 the Secretary of the U.S. Department of Homeland Security, Jeh Johnson, released a report on the state of border security in the Southwestern region of the United States for fiscal year 2016. The Secretary reported that the total apprehensions by border patrol on the southwestern border have increased, relative to the previous fiscal year. During fiscal year 2016 there were a total of 408,870 unlawful attempts to enter the United States border without inspection by a border patrol officer. Although the number of apprehensions during this fiscal year were higher than the previous year, the number of apprehensions in fiscal years 2013 and 2014 were much higher than fiscal year 2016.  Johnson also reported that illegal migration in this region has changed demographically. Today, there are fewer Mexican foreign nationals and adults attempting to cross the Southwestern border illegally. The problem now is that more families and unaccompanied children from Central America are making the dangerous trek from Central America to the United States, fleeing gang related violence, organized crime, and poverty. In 2014 for the first time in history, the number of Central Americans apprehended on the Southern border outnumbered Mexican nationals. The same phenomenon occurred during fiscal year 2016.

How is DHS dealing with the influx of undocumented immigrants from Central America?

DHS is struggling to deal with this humanitarian crisis. Thus far the United States has implemented an in-country referral program for foreign nationals of Honduras, El Salvador, and Guatemala. The program gives certain immigrants the opportunity to apply for refugee protection in the United States. DHS has also expanded the categories of individuals that may be eligible for the Central American Minors program, although adults may only qualify for this program if they are accompanied by a qualified child. The Government of Costa Rica and the United Nations High Commissioner for Refugees and the International Organization for Migration have developed a protection transfer agreement to relocate unaccompanied children and their families to safer regions. DHS was given $750 million in Congressional funds this fiscal year to provide support and assistance to this vulnerable population of migrants. Johnson recognized that there is much work to be done to secure and border, while at the same time addressing the need for comprehensive immigration reform.

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On September 28, 2016 the Obama Administration published the presidential determination for refugee admissions for fiscal year 2017. For the upcoming fiscal year, the Department of State will authorize admission of up to 110,000 refugees in accordance with section 207 of the Immigration and Nationality Act 8 U.S.C. 1157. The numbers of available refugee admissions will be allocated on a regional basis to the following countries: Africa, East Asia, Europe and Central Asia, Latin America and the Caribbean, the Near East, and South Asia. The president stated in his memorandum that the number of refugee admissions has increased from previous years, due to national interest concerns and the need of humanitarian relief in these regions. Numbers are specifically allocated to refugees of special humanitarian concern to the United States. Fourteen-thousand of the one-hundred ten thousand refugee admissions will go toward an ‘unallocated reserve’ authorizing Congress to distribute unallocated admission numbers to regions where the need is necessary based upon humanitarian concerns. Any unused refugee admission numbers may be transferred between regions, if there is increased need for admission in that region or region(s).

The numbers for refugee admission by region are as follows:

Africa ……………………………………………………. 35,000

East Asia…………………………………………………. 12,000

Europe and Central………………………………………. 4,000

Latin America and the Caribbean …………………………5,000

Near East and South Asia…………………………………40,000

Unallocated reserve………………………………………. 14,000

In accordance with 8 U.S.C. 1101(a)(42) Congress is authorized to grant refugee admissions to the following persons, based on their country of nationality or habitual residence. Such persons are not subject to a numerical limit in order to qualify for refugee admission to the United States: persons in Cuba, Eurasia, the Baltics, Iraq, Honduras, Guatemala, El Salvador, and persons identified by a United States Embassy in exceptional circumstances.

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On May 04, 2016 the Department of Homeland Security published a proposed rule in the Federal Register, announcing that filing fees for many USCIS petitions and applications are expected to increase for U.S. employers and foreign nationals. The proposed regulation stipulates that filing fees may be adjusted for certain immigration and naturalization benefit requests by USCIS. The increase in filing fees was considered after USCIS conducted a comprehensive review of its fees and found that the current fees do not cover the cost of services provided by USCIS. According to USCIS, in an effort to fully recover costs and maintain adequate services, “an adjustment to the fee schedule will be necessary”. According to the regulation, fees for most employment-based petitions and applications would be raised by an average of 21%, though other types of petitions may experience a higher increase in filing fees.

According to DHS, the higher fees will more accurately reflect the current cost of processing immigration applications and petition. A portion of the increased fees would provide additional funding for refugee and citizenship programs as well as system support for interagency immigration status verification databases.  The increase in filing fees will not take effect until the federal government approves the regulation, which is expected to take several months following the close of the 60-day comment period on July 5, 2016.

According to the new fee schedule under consideration, employment-based petitions would be the most impacted by the increase in filing fees. The filing fee for Form I-129, Petition for a Nonimmigrant Worker, would increase by 42% to a fee of $460, from the current rate of $325.  Similarly, the filing fee for Form I-140, Immigrant Petition for Alien Worker, would increase by 21% to a fee of $700, from the current rate of $580. The complete fee schedule under consideration has been provided below for your reference.

The EB-5 Immigrant Investor Visa Program is expected to be the most heavily affected by the new fee schedule. The filing fee for Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program, would increase by a rate of 186% requiring Regional Centers seeking designation under the program to pay a filing fee of $17,795 instead of the current rate of $6,230. In addition, Regional Centers would be required to pay a $3,035 annual fee to certify their continued eligibility for the designation. Currently, there is no fee in place for annual certification. The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, would also increase to a rate of $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence would remain unchanged under these new regulations.

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District Court Denies Request for Temporary Restraining Order to Halt Syrian Re-Settlement Program in Texas

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First Family of Syrian Refugees Arrives in Canada

In their December suit, Texas Health and Human Services Commission V. United States, et, al., the state of Texas alleged that the United States government and the International Rescue Committee unlawfully attempted to re-settle six Syrian refugees in the city of Dallas without prior  consultation and collaboration. According to Texas, the federal government failed to consult with the state regarding re-settlement of these refugees, and prevented them from receiving vital information relating to security risks posed by Syrian refugees prior to their re-settlement. Texas also claimed that the International Rescue Committee similarly failed to collaborate and consult with the Texas Health and Human Services Commission in advance prior to the re-settlement of these refugees. To protect itself, the state of Texas asked for an injunction and a temporary restraining order to halt the resettlement of Syrian refugees until security checks could confirm that these Syrian refugees do not pose a threat to the state of Texas.

On December 9, 2015 the U.S. district court denied the temporary restraining order, adding that the state of Texas failed to provide compelling evidence to suggest that Syrian refugees pose a substantial threat of irreparable injury to its citizens. Presiding district court Judge David C. Godbey added that, “the [Texas] commission has failed to show by competent evidence that any terrorists actually infiltrated the refugee program, much less that these particular refugees are terrorists’ intent on causing harm.” Although the lawsuit still stands and will likely not receive a final ruling until early next year, the district court set an important precedent in its denial of the temporary restraining order. Judge Godbey further maintained that it is not within the purview of the district court to assess what risk, if any, Syrian refugees pose to any particular state. Such risk can only be assessed by the federal government. On this issue Godbey stated that, “the Court has no institutional competency in assessing the risk posed by refugees. That is precisely the sort of question that is, as a general matter, committed to the discretion of the executive branch of the federal government, not to a district court.” The rest of the lawsuit remains in litigation.

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Earlier this week, in a 407-19 vote the House of Representatives successfully passed the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, a bill that seeks to increase restrictions for travelers coming to the United States under the Visa Waiver Program, a program which currently allows citizens from 38 designated countries to travel to the United States without a visa. In order to become law the bill must also pass through the Senate. The bill was introduced following President Barack Obama’s address to the nation, in which he confronted the threat of the Islamic State of Iraq and the Levant (ISIL) and the recent terrorist attacks in Paris and San Bernardino.

In his address, President Obama pledged to work closely with the Department of State and Homeland Security to revise the visa waiver program, under which one of the San Bernardino assailants traveled to the United States. The Problem? The President misspoke—the assailant traveled to the United States with a K-1 fiancé visa and not through the visa waiver program. Instead Obama meant to say that he would work with the DOS and DHS to revise the visa program in general. In light of this innocent mistake, the House continued its support to tighten the visa waiver program, despite the fact that no evidence has been presented suggesting that terrorists and/or their radicalized accomplices have traveled to the United States using this program. This would mean that the government is concerned that terrorists, disguised as refugees, may travel from Syria and surrounding countries, into Europe and in the process acquire European citizenship making it easy for them to travel to the United States through the visa waiver program. The government may also be concerned that ISIL is radicalizing and recruiting European citizens of middle eastern descent to their cause.

As it stands there are no middle eastern countries participating in the visa waiver program. The majority of the countries eligible to participate are from Western Europe with few exceptions including Chile, Taiwan, Australia etc. Individuals who have applied for a United States visa but have been denied, are not eligible to travel to the United States under the visa waiver program, even if their country participates in the program. Such individuals must apply for the appropriate visa at a US embassy or consulate abroad in order to travel to the United States. Critics allege that as a result of such legislation, consular officials and CBP agents will inevitably profile visa waiver travelers.

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Tashfeen Malik, a Pakistani citizen, and her husband Syed Rizwan Farook, a naturalized United States Citizen, are known globally as the couple behind the San Bernardino shootings, which took the lives of 14 people and left 21 injured. Twenty-eight-year-old Syed Farook was identified as an environmental health services inspector employed by the San Bernardino County Department of Public Health. He was attending a holiday party at the Inland Regional Center where he worked. Reports confirm that a dispute occurred between Syed and an attendee of the party causing Syed to leave the party. He later returned with his wife Tashfeen dressed in tactical gear carrying assault weapons and semi-automatic pistols. Days after the attack, it became known that the assault was inspired but not directed by the Islamic State of Iraq and the Levant (ISIL), the terrorist group which claimed responsibility for coordinated attacks that occurred in Paris just last month. Through a radio message disbursed online, ISIL confirmed that the duo were indeed supporters of the group praising them for their efforts, but stopping short of taking credit for the attack. The FBI has since confirmed that the couple had been ‘radicalized’ for some time before the actual attack took place, though it is not clear how the couple became radicalized, how they rehearsed the attack, and whether the couple maintained ties to any other terrorist organizations. It is known that Syed and his wife Tashfeen had visited gun ranges in the Los Angeles area for target practice just days before the December 2nd assault at the Inland Regional Center, a social services facility located in San Bernardino, California where Syed was employed.

Investigations have revealed that Syed and Tashfeen met one another on a Muslim dating site a couple of years ago. The relationship flourished, and eventually Tashfeen Malik obtained and entered the United States legally on a K-1 fiancé visa. Last year, Tashfeen became a United States lawful permanent resident through her marriage to Syed, a naturalized citizen. In response to the recent terror attacks around the world and the Syrian refugee crisis, President Obama delivered a rare address to the nation from the Oval Office yesterday evening declaring the San Bernardino massacre an “act of terrorism designed to kill innocent people.”

In his address, President Obama outlined his administration’s four-tier strategy to defeat ISIL and discussed necessary measures that must be taken by Congress to bring about legislation that will protect our country from extremism and combat the war on terror. Such measures include the following:

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Yesterday, December 2, 2015 the state of Texas brought suit against the federal government and the International Rescue Committee (IRC), before the United States District Court in Texas Health and Human Services Commission V. United States et al., 12/2/15. In its suit, the state of Texas claims that the federal government and the IRC acted unlawfully in their attempt to resettle Syrian refugees without prior consultation and direct cooperation with the state of Texas, as required by federal law. The lawsuit was brought by the Texas Health and Services Commission (THSC) representing the interests of the state of Texas in court. The THSC is an agency responsible for the administration and development of the refugee resettlement program in Texas. The state of Texas discovered in a phone call with the IRC that the Committee intended on resettling 6 Syrian refugees in Dallas, Texas on December 4, 2015 without consent. On December 1, 2015 Texas addressed the Committee in a letter requesting a halt to the resettlement of Syrian refugees until the state would receive security assurances and discuss proper screening procedures for said refugees. The IRC responded on December 2nd that it would continue the resettlement process as planned resettling the refugees in Texas.

Refugee Resettlement Program

Texas administers the refugee resettlement program along with the assistance of local government agencies responsible for the financial costs associated with the refugee’s resettlement and transition to the state of Texas.  In order to accomplish its endeavors, all federal and state agencies must adhere to strict framework’s established by the Refugee Act of 1980, which require collaborative and cooperative efforts between all entities involved in the process of refugee resettlement. According to Texas, “instead of adhering to that statutory framework, the federal government and the Committee have left Texas uninformed about refugees that could well pose a security risk to Texans and without any say in the process of resettling these refugees.”

Arguments for the state of Texas

In its suit, Texas aims to re-assert its sovereignty and obligation to protect the safety of its residents. Texas claims that the government’s failure to adhere by the law has raised legitimate security concerns involving potential complicity between refugees and terrorists.

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Last week, in a 289-137 vote the House of Representatives overwhelmingly voted in favor of a bill that would require a comprehensive background check to be conducted for every Syrian and Iraqi seeking refugee admission to the United States. Among its provisions, the bill, better known as the American Security Against Foreign Enemies Act of 2015 (American SAFE Act of 2015) will require supplemental certifications and background investigations to be conducted before a Syrian or Iraqi refugee can be admitted to the United States. These additional security protocols will require multiple federal government agencies to work together in order to determine whether 1) such an alien poses a threat to the national security of the United States and 2) whether it is in the public interest of the United States to admit the alien based on the findings of the security checks conducted. The bill received overwhelming support from Democrats and Republicans alike amid the recent terrorist attacks claimed by ISIS leaving 129 dead and 353 wounded in the city of Paris. Though the bill will need to pass through the Senate before it can become law, the House’s overwhelming support for the bill has blocked the President from using his veto power.

Specifically, the bill will apply only to Syrian and Iraqi nationals referred to in the bill as ‘covered aliens.’ A covered alien means any alien applying for admission to the United States who is either a) a national or resident of Iraq or Syria b) has no nationality but whose country of last habitual residence is Iraq or Syria c) has been present in Iraq or Syria at anytime on or after March 1, 2011.

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The Gillard Government made a commitment in 2010 to release all children from immigration detention by June 2011, but still 1000 children languish in the harsh environment of immigration camps around Australia. The Refugee Action Collective organised a protest on July 9, 2011 outside the Melbourne Immigration Transit accommodation which is used for the detention of unaccompanied minors.

In the federal register released on October 16, 2015 President Barack Obama announced refugee admission numbers to be allocated for fiscal year 2016, based upon Section 207 of the Immigration and Nationality Act and Congressional oversight.

According to the federal register, up to 85,000 refugees will be granted admission to the United States during fiscal year 2016 in the national interest and as a result of growing humanitarian concerns in Africa and the Near East/South Asia, regions where the majority of admission numbers have been allocated—a total of 59,000 altogether.The 85,000 cap will be distributed among specified regions that pose special humanitarian concerns to the United States. Africa is to be allocated 25,000 admissions; East Asia, 13,000; Europe and Central Asia, 4,000; Latin America/Caribbean, 3,000; Near East/South Asia, 34,000; and 6,000 refugee admissions will remain unallocated in order to address regions where future necessity may arise.

The 6,000 unallocated refugee admissions will be allocated according to ‘regional ceilings’ that will be imposed by Congressional Judiciary Committees as needed. In addition, unused refugee admissions in one region may be transferred to other regional areas of concern as needed.

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