Tag: Shoba Sivaprasad Wadhia

Supreme Court Issues Orders on Ban 3.0: What This Means

by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law - University Park, Sirine Shebaya, senior staff attorney, Muslim Advocates and , and Abed Ayoub, legal director, American-Arab Anti-Discrimination Committee

*This piece was originally posted on Medium. 

What happened at the Supreme Court? On December 4, the Supreme Court issued orders staying the injunctions placed on certain aspects of Ban 3.0 by federal district courts in Hawaii and Maryland. What this means is the third version of the ban can take full effect pending a decision of the Government’s appeal in the Fourth and Ninth Circuit Courts of Appeals and pending a decision of the Government’s petition to the Supreme Court to hear the case. Justices Sotomayor and Ginsburg would have denied the application giving rise to these orders.

Did the Supreme Court give a reason for these orders? No. The Court did not provide a specific reason for the orders beyond the fact that both cases would be heard on an “expedited basis” at the appellate courts. This means that the Supreme Court expects the decisions soon after oral arguments which are scheduled for December 6 at the Ninth Circuit and December 8 at the Fourth Circuit.

Did the Supreme Court Rule on the Legality of the ban? No. The Supreme Court did not make a decision on the legality of the ban. The legal challenges to Ban 3.0 have been wide ranging and were successful at the Hawaii and Maryland courts. The challenges have been constitutional and statutory. Whereas the Hawaii court focused on the statutory arguments to conclude that Ban 3.0 violates the immigration statute by denying immigrant visas based on nationality, the Maryland court focused on the likelihood that Ban 3.0 violates the Establishment Clause of the First Amendment to the U.S. Constitution.

What about pending cases at the courts of appeals? The Government appealed the Maryland and Hawaii decisions. Oral arguments are scheduled for December 6 in the Ninth Circuit and for December 8 in the Fourth Circuit.

Who is covered by Ban 3.0?

  • Chad, Libya and Yemen: all immigrants and those entering as tourists or business travelers
  • Iran: all immigrants and nonimmigrants, EXCEPT F, J and M visa holders (extra scrutiny)
  • North Korea and Syria: all immigrants and nonimmigrants
  • Somalia: immigrants (and nonimmigrants subject to extra scrutiny)
  • Venezuela: certain nonimmigrants government officials and their family members

What is the scope of the ban? These suspensions only apply to people who:

  • are outside the United States on the applicable effective date
  • do not have a valid visa on the effective date
  • do not qualify for a visa or other travel document by the terms of the Proclamation

Who is exempt from Ban 3.0?

  • Lawful permanent residents (green card holders)
  • Foreign nationals admitted or paroled to the United States on or after the effective date
  • Foreign nationals with travel documents that are not visas that are valid before or issued after the effective date
  • Dual nationals traveling on a passport that is not one of the affected countries
  • Those travelling on a diplomatic or related visa
  • Foreign nationals who have already been granted asylum, refugees who have already been granted admittance, and those who have been granted withholding of removal, advanced parole, or protections under the Convention Against Torture

If I am covered by the ban can I still enter the country? A consular officer may, on a case-by-case basis and within their discretion, grant a waiver to affected immigrants for certain reasons. The person seeking entry must prove that:

  • denying entry would cause the foreign national undue hardship;
  • entry would not pose a threat to the national security or public safety of the United States; and
  • entry would be in the national interest.

Please seek the advice of an immigration attorney before seeking a waiver.

What should I do if I am from one of the eight countries, outside the United States and want to travel to the United States? If you are from one of the eight countries, are covered by the ban and do not yet have a visa then cannot obtain one at this time, unless you qualify for a waiver. If you are from one of the countries and do have a valid visa on the effective date (which as of this writing is unclear) you may be able to enter the United States. If you choose to travel, please talk to an immigration attorney and arrange for assistance by a lawyer or advocate at the airport you are flying into. Finally, please make sure you know and understand your rights.

What should I do if I am from one of the eight countries, am in the United States with a valid visa and want to travel outside the country? The third version of the ban states that no visas will be revoked and that those with a valid visa on the effective date (which as of this writing is unclear) are not covered by the ban. Nevertheless, travel outside the United States at this time carries a lot of risk. If you plan to travel, please visit an immigration attorney so you can understand the risks and responsibilities of leaving the United States. Also, please arrange for assistance by a lawyer or advocate at the airport you are flying back into.

Where can I find more resources?

Special Registration, Deferred Action and Prosecutorial (In)Discretion

by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law - University Park

*This piece was originally posted on Medium. 

Witness Fatiha Elgharib, who has lived in Ohio for more than two decades, serves as primary caregiver to a United States citizen child suffering from Down Syndrome, is married to the breadwinner, and faces imminent deportation on November 27. Fatiha became a target of immigration following her fight and support of her husband during the course of NSEERS –a Muslim registration program enacted after the attacks of 9/11. Fatiha’s story highlights the ongoing residual impact of NSEERS and raises important questions about the legitimacy of using a now defunct and ill-conceived policy to generate new deportations.

Early into the Presidential campaign, I lamented over then candidate Donald J. Trump’s proposal of a complete shutdown of Muslim immigration and described the flashbacks it had to ill-conceived policies created after the attacks of 9/11 against Muslim, Arab, and South Asian communities and in the name of nationality security. In the months that followed, I responded to a mountain of inquiries about the parallels between the President’s proposed Muslim registry and a 9/11 program known as “NSEERS” or special registration.

Special registration is a program announced by former Attorney General Ashcroft in 2002 whose legacy is marked with chaos, discrimination, and scars worn by individuals and families to this very day. The most controversial portion of NSEERS enlisted men from 25 majority Muslim countries (one exception: North Korea) to report to local immigration offices for interrogations, fingerprints, and photographs. The residual effects of NSEERS were significant as those who came forward voluntarily to comply or were unfamiliar with the program years later, faced charges, detention, and deportation. Following a decade plus long fight to dismantle the legal framework of NSEERS, the Obama administration rescinded the framework in late December 2016.

Less than one month later, now-President Trump signed his first of many Executive Orders categorically suspending the entry of noncitizens from seven countries, all of which have Muslim populations of 90% of more. In response, lawyers, advocates and community leaders have responded to these bans with legal excellence and significant advocacy. While orders to ban entry differ in form from a registry program, the message both send to Muslim, Arab and South Asian communities is the same: exclusion and discrimination under a proxy of national security.

Enter Fatiha’s case: the heartbreaking intersection of the near-sighted and ill-advised NSEERS program; and Trump’s immigration policies.

The heartbreak is not limited to NSEERS but to this administration’s misuse of prosecutorial discretion in Fatiha’s case. For decades the administration has used a form of prosecutorial discretion called “deferred action” to protect mothers like Fatiha who have lived in the United States for several years and serve as primary caregivers to children born here.

Prosecutorial discretion refers to a decision by the Department of Homeland Security to enforce or not enforce the immigration law against a person. In a world of limited enforcement dollars and cases involving multiple equities like long term residence, the use of prosecutorial discretion in the immigration system is inevitable.

Deferred action data from 2016 reveals that most deferred action cases processed and granted were for medical reasons. Having studied thousands of deferred action cases throughout my research, it is without question that someone like Fatiha who is herself a long-time resident, without a criminal history and caring a for United States citizen child with Downs Syndrome should be protected through formal relief or in the alternative a deferred action. The Department of Homeland Security has the authority and the responsibility to use discretion wisely and judiciously at every stage of the immigration enforcement process.

If the regular lesson is that “two wrongs do not make a right” I might conclude that “two wrongs” (NSEERS and potential deportation) adds to a broken immigration system while needlessly separating a family who call America home.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and the Director of the Center for Immigrants’ Rights at Pennsylvania State University Dickinson School of Law and the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press, 2015), now available in paperback.