Constitutional Rights of Immigrants

UPDATE:  In a landmark decision on February 9, 2017, the Ninth Circuit Court of Appeals halted the Executive Order travel ban imposed on persons from predominantly-Muslim countries.  The Court upheld the temporary restraining order from Judge James Robart’s February 3, 2017, ruling in the lawsuit Washington v. Trump.  As a result, the travel ban is not in force. 

However, some heightened scrutiny still exists in the interest of security.  Persons with concerns about departing from or returning to the U.S. still may want to contact an immigration lawyer prior to travel.  However, citizens and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, or with Muslim backgrounds, no longer should be subjected to unduly excessive questioning during visa processing or upon entry to the United States.   

Following is the history of the Executive Order and continuing implications. 

On Friday, January 27, 2017, President Trump issued Executive Orders barring admission into the United States from seven predominantly Muslim countries, suspending all refugee admissions, and barring entry by Syrian refugees. Though no countries are listed on the Order, the intent was the ban on entry into the U.S. by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen by any persons “from” those countries with nonimmigrant or immigrant visas or status or as refugees.

Multiple lawsuits challenged the Order.  On January 28, 2017 federal courts in several districts issued stays limiting the Order, but the Department of Homeland Security through Customs & Border Protection (CBP) is not fully complying with the stays at all airports and ports of entry.

However, on January 29, 2017, Homeland Security issued a statement, indicating that allowing lawful permanent residents to return to the U.S. is in the national interest, so long as there is no serious derogatory information, as determined on a case-by-case basis.

Overall, CBP and visa officers applied an extremely heightened level of discretion for foreign citizens from Muslim countries (beyond the seven listed), but persons who are allowed to board flights by an large have been allowed to enter the U.S.

Here is a summary of the impact:

Impact on U.S. Citizens

  • The Order does not specifically apply to U.S. born citizens or naturalized US citizens.
  • However, dual U.S. citizens from the 7 countries reported that CBP notified them that their Global Entry trusted traveler authorization is being revoked.

Departing the United States

  • To minimize the impact of the Order, it is advisable to avoid unnecessary travel outside the United States.
  • On January 31, 2017, the Department of State began the provisionally revoking valid visas previously issued to any affected nationals from the 7 countries.  A provisional revocation of a visa does not require the person to depart the U.S., and anyone who receives notification should contact an immigration attorney to discuss implications.  UPDATE: The State Department has started to reinstate the revoked visas.

Returning to the U.S. by Air

  • For persons currently outside the U.S., anticipate enhanced questioning on return, related to activities inside and outside the U.S. and related to family and friends.
  • In some countries, airlines were asking travelers from the 7 countries to sign agreements that if Homeland Security refused to allow them to enter the U.S., the person would agree to pay the return airfare (under existing agreements, the airlines – not the U.S. government or individuals – are liable to cover the cost).

Returning to the U.S. at a Land Border Crossing

  • Entry at land border crossings almost involves more questioning than flying into the U.S. The reason is that some screening occurs through the Advanced Passenger Information System (APIS) before boarding a flight, but the traveler must wait for the immigration officer at the land border crossing to conduct the screening.


  • National Security Advisor Flynn advised that dual nationals of Canada are not prohibited from entering the United States and usually should be allowed to enter.

Green card holders returning to the U.S.

  • Green card holders from countries other than the 7 listed report little difference in the admission process from before the Order.
  • Green card holders from the 7 countries who are dual citizens of other countries (such as Canada and the UK) may be subjected to minimal additional screening.
  • Green card holders from the 7 countries are being subjected to additional screening, which may involve a few additional questions by the immigration officer in primary inspection at the entry booth, or the person may be sent to secondary inspection for more extensive questioning ranging from a few minutes to several hours.
  • Some immigration officers and airline representatives have asked green card holders to sign a form (I-407) to abandon permanent resident status and be allowed to enter the U.S. as a visitor.  Permanent residents should not sign a form or relinquish the green card without speaking to a lawyer.
  • UPDATE:  Persons from the 7 countries generally no longer are singled out.

Temporary, nonimmigrant visa travelers

  • Temporary visas holders (such as with H-1B, O-1, L-1, F-1 students, business visitors, tourists, and Canadians and Mexicans with TN status) from the 7 countries may be subjected to enhanced primary or secondary screening.  UPDATE:  Persons from the 7 countries generally no longer are singled out.
  • Those returning to work generally have less questioning that those entering for the first time.

Visa processing overseas

  • Some U.S. embassies and consulates abroad had allowed returning visa applicants to forego an interview under visa interview-waiver programs, i.e., the drop-box for visa renewals. This option no longer exists. Now, all visa applicants must attend an interview.  UPDATE:  Drop-box visa processing has resumed.
  • Persons from other countries attending visa appointments may end up stuck outside the U.S. for some time and be unable to return while waiting for the visa stamp, though this now is less likely to occur.
  • All U.S. embassies and consular posts were instructed to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Visa interviews for affected individuals are being canceled. The Department of State issued an urgent notice to citizens these countries, “please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please do not attend. You will not be permitted entry to the Embassy/Consulate.”  UPDATE:  Visa processing has resumed.

Questions on entry

  • CBP immigration officers at the Ports of Entry may ask travelers to provide social media access, such as contact for Facebook pages, Instagram accounts, etc. Such requests should be declined, as the information is not required.
  • For some travelers, a delay will result from a request to Headquarters in Washington, DC, to clear the person.
  • The Order was not directed to nationals of Saudi Arabia, Bahrain, Oman, Qatar, & UAE, nor to nationals of Bangladesh, Egypt, Indonesia, Morocco, Pakistan, Turkey or other Muslim-majority countries. But some citizens of those countries report being subjected to enhanced secondary screening.
  • The highest scrutiny is being applied to citizens of one of the 7 countries, using a passport issued by one of the 7 countries, and travelling to the U.S. from one of the 7 countries.

Impact on USCIS petition and application processing

  • USCIS reportedly has ceased processing of all immigration petitions and applications for beneficiaries of the 7 countries, for forms that begin with an “I,” (I-130, I-765, etc.), but are processing forms that begin with “N” (such as N-400 naturalization applications).  UPDATE:  Processing has resumed.

Removal or questioning of persons in the U.S.

  • Persons with valid status in the United States are not subject to removal under the Executive Order.
  • Immigration officers who ask to enter the workplace or a home to ask for information about immigration in most cases may be refused if they lack a warrant.

Access to Counsel

  • A person who would like legal representation should ask for a “G-28” while in secondary at a Port of Entry, and even without a G-28, should state that they would like legal representation and to be able to speak to a lawyer and should not be dissuaded by an immigration officer saying the person is not entitled to counsel.

Two unusual immigration-related cases currently before the United States Supreme Court involve how non-citizens participate in American political processes.  This year’s Presidential election makes these cases particularly noteworthy.

In Bluman v. Federal Election Commission, the plaintiffs argue that non-citizens living legally in the United States but who don’t yet have Lawful Permanent Resident (LPR) status (“green cards”) should have a First Amendment right to contribute to political candidates.  The plaintiffs, Benjamin Bluman and Asenath Steiman, are both foreign nationals who lawfully live and work in America but don’t yet have green cards.  Current federal law prohibits foreign nationals (other than green card holders) from making political contributions in connection with any federal, state or local election in the United States.  Violating the law is a crime and can result in jail time and substantial fines.  The plaintiffs claim that the foreign national ban violates the First Amendment and want the U.S. Supreme Court to declare the law unconstitutional.

In Louisiana v. Bryson, the plaintiffs argue that non-citizens—both authorized and unauthorized—should not be counted by the U.S. Census unless they have attained Lawful Permanent Resident status. Louisiana filed the lawsuit—an original action in the United States Supreme Court—because the State believes that it has lost one seat in Congress as a result of the Census practice of counting all residents.  Louisiana contends that other States such as California have disproportionate numbers of foreign nationals who are not Lawful Permanent Residents, and those States have an advantage in the political process—and in the Electoral College—over States that have fewer foreign nationals without LPR status.

Although the cases may appear to be relatively straightforward to a layperson, in reality, both cases involve complex issues of U.S.immigration law:  Few members of the public know of the multitude of different immigration statuses; these statuses are not easily categorized as “temporary” or “permanent.”  While the immigration laws try to distinguish between “immigrants” (those who intend to reside permanently) and “non-immigrants” (those who enter the U.S.with an intent to be here temporarily), there are a multitude of “gray area” statuses, and the “dual intent” doctrine allows some “non-immigrants” to have an intent to remain permanently.  Is an H-1B professional worker a “temporary” or a “permanent” resident for Census purposes if he has an approved immigrant visa petition but is on a seven-year waiting list for his green card?  What about an El Salvadoran who has held Temporary Protected Status (TPS) for ten years, has U.S. citizen children, but who can’t adjust status because she entered the U.S. without inspection when she fled from the conflict in her country years ago?  Should the Census count an asylum seeker who has had his asylum application pending for many years, and who has permission to live and work in the United States until his asylum case is decided?  What about those who have a treaty-based right to live and work in the U.S., such as Native Americans born in Canada or citizens of Micronesia, Palau, and the Republic of the Marshall Islands?  Should the Federal Election Commission allow political contributions from an E-2 treaty investor who owns a U.S. restaurant and has been living and paying taxes in the United States for twenty years, but who can’t qualify for a green card because his business is too small to meet the complex and difficult EB-5 immigrant investor requirements?

Many Americans are aware that millions of unauthorized immigrants live in the United States, but few understand that there are also millions of foreign nationals who live legally in the United States for years at a time, but cannot obtain “green cards.”  These two Supreme Court cases have the potential to affect both the authorized and the unauthorized foreigners among us.

Recently, the Supreme Court recognized that non-citizens in removal proceedings have a Sixth Amendment right to counsel, but it is not clear what the Court will do with their First Amendment rights, or with their right to be counted as residents in the Census.  Reading the briefs for both the Bluman v. FEC and the Louisiana v. Bryson cases, one is struck by the complexity of the issues potentially facing the Supreme Court.  Although styled as a First Amendment case, Bluman could affect other Constitutional protections that are routinely afforded to non-citizens who have not yet obtained Lawful Permanent Resident status.  And Louisiana v. Bryson could change the results of a Presidential Election, depending on how it is decided, and vastly increase the complexity of U.S. Census questionnaires (if Lousiana prevails, the Census Bureau will have to account for more than one hundred different types of immigration statuses that residents of the U.S.currently hold). 

With its decisions in these cases, the U.S. Supreme Court could create even more chaos in the currently dysfunctional American immigration system.  Potentially, for example, the Court could rule that a Treaty NAFTA professor at Louisiana State University has a right to contribute to Louisiana Governor Bobby Jindal’s political campaign, but can’t be counted in the U.S. Census as a resident of Louisiana.  These two cases are ones that all immigration practitioners should be watching closely.