Message from NJSBA President Thomas H. Prol regarding President Donald J. Trump’s Jan. 27 executive order on immigration matters

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NJSBA President Thomas H. Prol shares the following guidance and information related to President Donald J. Trump’s Jan. 27 executive order regarding immigration matters. The information was provided by the association’s Immigration Law Section, with special appreciation to section chair and former association trustee Daniel Weiss and incoming section chair Scott Malyk. In addition, the NJSBA’s educational arm, the New Jersey Institute for Continuing Legal Education, is expediting development of a seminar on immigration law issues that will be announced in the coming days.

Last Friday, President Trump issued an executive order titled, "Protecting The Nation From Foreign Terrorist Entry into the United States." The order relates to admission and screening procedures of all foreign nationals from seven specified countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order suspends entry of foreign nationals from these countries for a period of 90 days, while reserving the right to extend this bar beyond the 90 days. This affects refugees, non-immigrant visa holders, permanent residents and dual nationals. The order also halts visa issuance from those countries, and suspends the U.S. Refugee Admissions Program for 120 days.
On the evening of Jan. 28, the U.S. District Court for the Eastern District of New York granted a stay of a portion of the order, indicating that refugees, holders of valid immigrant and non-immigrant visas and other individuals who are legally authorized to enter the United States from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen, who arrived at U.S. airports and are scheduled to be sent back to their home countries, could receive a stay of such expedited orders of deportation. However, the judge did not order that those individuals could be admitted as refugees, leaving them in limbo, as they are physically present in a U.S. detention holding-facility, without having been admitted to the country. Additional legal challenges to the order are expected to be filed this week and the issue is evolving.
Immigrants attempting to enter the U.S. by air, sea, or land must be admitted into the United States by U.S. Customs and Border Protection (CBP) before they are legally considered to be admitted to the country. Thus, while individuals arriving into the U.S. by plane are physically present in the country when their plane lands on the tarmac, they are not legally admitted until CBP inspects and admits them at the airport.
In light of this order, foreign nationals from those seven countries, whether they are refugees seeking admission for the first time, or lawful permanent residents of the United States seeking admission for the 100th time, can be denied admission when they arrive from abroad at airports, including Newark Liberty International Airport and John F. Kennedy International Airport. The order includes a provision that allows foreign nationals of these seven countries to "withdraw their application for admission" at U.S. ports of entry, rather than being issued expedited orders of removal. This leaves the door open for future requests for admission to those individuals not granted admission. The order also leaves it to the discretion of CBP to admit nationals of these countries on a case-by-case basis.
As these issues continue to develop, it is recommended that practitioners should take the conservative approach, by advising stateside clients from these seven countries not to depart the U.S., even if they hold dual nationality with the U.S. or with any other country. The language of the order is unclear as to whether a naturalized U.S. citizen, who is also a national of one of the designated countries, might be subject to the bar.
In addition to the order, immigration practitioners are reporting that there has been an immigration policy shift under the new administration that has not been reported as widely as the order. That shift has seen increased numbers of detention of aliens with criminal convictions and prior orders of removal. U.S. Immigration and Customs Enforcement detentions have increased in the past several days, as well. As a result, we urge members of the criminal, municipal and family law practice areas who have foreign national clients with pending charges, including serious municipal offenses and/or temporary and final restraining orders, to consult with immigration counsel in order to understand the severe ramifications that can occur as a result of a plea or conviction in those matters.
For members who are interested in providing legal assistance to people impacted by the executive order and the immigration policy shift, the following organizations have indicated a need for pro bono assistance. Please note that NJSBA has not independently reviewed these organizations and this information does not constitute an endorsement.
International Refugee Assistance Project
Immigration Equality
Please send information to [email protected], if there are additional agencies in need of volunteers.