Donald Trump's immigration ban: A quick guide to legal rights of those affected

US President Donald Trump’s executive order limiting entry into the United States has led to refugees, professionals, students and several others, including people with valid visas, being detained and denied entry throughout the US.  There are grounds to challenge the President’s executive order, but a final decision from the courts will take time. In the meanwhile, affected people must keep in mind that they do have certain rights, granted not only under international humanitarian laws, but also under the US Immigration and Nationality Act.

Entry of aliens restricted

The executive order applies to both immigrant and non-immigrant aliens, or simply to any person who is not a national/ citizen from the United States, travelling from 7 countries- Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. Unfortunately, under the US Immigration and Nationality Act, the US President has the authority to suspend the entry of any alien/any class of aliens into the US. Refugees and other aliens, therefore, do not have an unrestricted right to enter the US.

Before looking at the rights such people do have in the US, here are the key points to remember of the President’s new order:

• Green card holders are aliens

Green card holders, and also persons with student or temporary employment visas, come under the category of ‘aliens’. Being aliens, despite the being granted the right to live/ work indefinitely in the US, the new order restricts their entry in to the US. These persons can re-enter only on undergoing an additional screening process . Entry for green card holders will, however, be easier than for those without, as per the assurances of the US Department of Homeland Security . Green card holders must therefore not give up their green cards under any circumstances, or sign a Form 1-407 (Abandonment of lawful permanent resident status).

• Suspension of USRAP

Note that the US Refugee Admission Program has been suspended for a period of 120 days. This means no new applications will be taken. Existing applications may be cleared, but again there is no assurance of this.

• Syrian nationals

Any entry of Syrian nationals has been suspended indefinitely. This means any Syrian nationals including refugees, students and green card holders will be denied entry.

Refugees and aliens have limited constitutional rights

Refugees and aliens typically do not enjoy the same rights as nationals. However, they do have limited rights. The first set of rights are under the US Immigration and Nationality Act, and the US Constitution, including the right to Due Process and the right to Equal Protection, explained below. The second set of rights is under the UN 1951 Convention and 1967 Protocol relating to the Status of Refugees (UN Refugee Conventions),  and the UN Convention Against Torture, international treaties which the United States is signatory to.

Alien cannot be removed/ returned to his country

Refugees have a right against ‘refoulement’, which means that the officials cannot simply send back persons who have arrived at US seeking asylum to their home countries, where such a person fears his life, persecution or torture.  All persons have the right to first challenge their removal in a court before they are sent back.  This right is granted not only under international conventions, but has also been encoded under US law in the Foreign Affairs Reform and Restructuring Act of 1998.

This right is also valid for aliens who are not refugees, such as those on student or employment visas. Temporary orders in favour of the aliens have been issued by the courts in suits filed against the President’s new order. Justice Donnelly in one case has restricted the removal of the persons from these 7 countries, and also holders of valid immigrant and non-immigrant visas and individuals with approved refugee applications as a part of the USRAP.

Right to apply for asylum

Every alien who has arrived in the United States has a right to apply for asylum under the US Immigration and Nationality Act. This right has not been suspended by President Trump’s order, and people arriving in US even now retain the right to seek asylum. This right is further guaranteed even to aliens as a constitutional right to Due Process under the US Constitution’s Fifth Amendment.

Seek hearing from immigration judge if denied asylum

The suspension of the USRAP program and the complete ban on Syrian nationals can lead to a number of ongoing asylum applications to be denied. Even fresh asylum applications made after the new order can be denied. The important thing for an asylum seeker to remember is that he has a right to seek a hearing from an immigration judge. Not doing so will allow the asylum officer to remove him immediately.

Right to an attorney

Unfortunately, aliens and refugees are not granted a right to legal assistance or to an attorney under the US Immigration and Nationality Act. However, the UN Refugee Conventions grant the right of free access to courts and to legal assistance. The US being signatory to these conventions, is obligated to adhere to it.  Every person, therefore, has a right to seek access to an immigration judge as well as to legal assistance.

Priority to persons facing religious persecution

The new order directs that persons seeking asylum on the grounds that they are a religious minority in the country and facing religious persecution are to prioritised. Considering that the 7 countries that have been barred are predominantly Muslim countries, it can be assumed that priority will be given to non-Muslim asylum seekers from these countries. While this provision is in violation of the provisions of the US Immigration and Nationality Act, the US Constitutional right to Equal Protection, and also international refugee laws, non-Muslim asylum seekers must keep this point in mind.

Priority to persons already in transit

The authorities have been granted discretionary power to grant entry to persons when that person is already in transit and denying admission would cause undue hardship. This is provided the persons would not pose a security threat or risk.

While the President has been granted the discretionary power to deny entry, the order discriminates between people on the grounds of nationality and religion. It is hoped that the US government will honor its commitment to its own laws and review its order.