Canadian residents may be denied U.S. entry

The new executive order is an attempt to impose a ban that can be seen to satisfy Trump’s campaign promises while also withstanding scrutiny from federal judges.

Thestar.com
March 6, 2017
By Daniel Dale

Permanent residents of Canada with citizenship from any of six Muslim-majority countries can be denied entry to the United States under the new version of U.S. President Donald Trump’s travel ban.

After Trump issued the first version of the 90-day ban in January, federal Immigration Minister Ahmed Hussen said he had been assured by the White House that permanent residents could go to the U.S. as usual. But the language of the second version is not nearly so straightforward.

The revised ban, signed by Trump on Monday, explicitly says that a “landed immigrant” from Canada needs to apply for a “waiver” that “may” be granted, on a “case-by-case basis,” at the discretion of a consular officer or another official from U.S. Customs and Border Protection.

It is not yet clear how strict or generous the U.S. government will be in giving such waivers to people applying at consulates in Canadian cities - or whether there will be any consistent policy at all.

“Canada will work with its counterparts in the United States to clarify the impacts of this order on Canadian citizens and Canadian temporary and permanent residents,” a spokesperson for the immigration ministry said Monday.

Public Safety Minister Ralph Goodale told reporters Monday that the waiver requirement “would not substantially change the process” for permanent residents from the six countries, since they already had to apply for a visa to enter the U.S. A top Canadian immigration lawyer, though, said other kinds of waivers often take much longer to obtain than visas.

Waivers for Canadians with criminal records, for example, currently take about six months to process, said lawyer Lorne Waldman. While the U.S. might create a faster process for this new kind of waiver, he said, the existing process is the best guide for now.

Trump’s order says waivers “could” be granted. The general requirement: “the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest.”

Despite the waiver requirement, Canada is still getting privileged treatment in the new order. There is no explicit waiver provision allowing entry by permanent residents of Australia or the United Kingdom.

The new order bans all refugees for 120 days and visitors from Syria, Sudan, Iran, Somalia, Libya and Yemen for 90 days. It does not affect dual citizens of Canada and the affected countries, such as Iranian-Canadians and Syrian-Canadians, who are still allowed to travel to the U.S. with their Canadian passports.

The revised ban was immediately blasted by civil liberties and human rights groups as bigoted and unconstitutional; the American Civil Liberties Union called it “Muslim Ban 2.” But it represents a major concession from a president who had mocked a “so-called judge” for putting it on hold, then defiantly promised in a tweet to “SEE YOU IN COURT” after he lost on appeal.

“The president has capitulated on numerous key provisions that we contested in court about a month ago,” Washington state attorney general Bob Ferguson, who challenged the original order, told reporters. “It bears pointing out that the administration, since that tweet, has done everything in its power to avoid seeing anyone in court when it comes to the original executive order.”

The new order is an attempt to impose a ban that can be seen to satisfy Trump’s campaign promises - first a “total and complete shutdown” on Muslim entry, then something he called “extreme vetting” - while also withstanding scrutiny from federal judges. Legal analysts said it has a much better chance in court than the vague and hastily imposed order of a month ago.

Unlike the original order, which took effect without any warning, this one is being introduced with a 10-day grace period - though Trump had defended the rapid introduction of the original order by saying that, “If the ban were announced with a one week notice, the ‘bad’ would rush into our country during that week.”

The new order excludes Iraq, whose inclusion in the first order was especially controversial because it harmed military interpreters and others risking their lives to work with the U.S. military. While the initial order singled out Syrian refugees for an indefinite ban, the revised version subjects them to the same four-month ban as other refugees.

Attempting to weaken the case that the policy amounts to anti-Muslim discrimination, the new order eliminates special treatment for refugees who are religious minorities in their home countries, a provision widely seen to be aimed at Christians.

Perhaps critically, the new order explicitly protects both people who already have valid visas and U.S. permanent residents who hold “green cards.” The appeals court that ruled against Trump had suggested that both groups may have had their right to due process violated by the original order.

The original order wreaked havoc worldwide. The administration was forced to scramble to reassure allies like Canada that, contrary to their initial statements, dual citizens of those countries were not covered by the ban.

Trump attempted a lower-profile rollout this time. He signed the order without any members of the media present, merely tweeting a photo, and deployed three administration officials to talk about it on camera rather than doing so himself.

Secretary of State Rex Tillerson said the order was a “vital measure for strengthening our national security,” part of Trump’s effort to “eliminate vulnerabilities that radical Islamist terrorists can and will exploit for destructive ends.”

The national security basis for the order has been vigorously questioned, even by the government itself. Nobody from any of the six countries has killed an American in a terror attack. A leaked analysis from the Department of Homeland Security concluded that country of origin is a poor indicator of the risk someone poses to the U.S.

The president has broad authority over immigration matters, but Trump may be hampered in court by his own words and those of his allies. The groups challenging the ban have highlighted the comments of former Trump surrogate Rudy Giuliani, who said on television that it emerged out of a Trump request to impose a Muslim ban “legally.”

“Prejudice rewritten is still prejudice,” the ACLU said on Twitter on Monday. “Freedom of religion is enshrined in our Constitution and this new ban is still unconstitutional.”