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The President of the United States has invoked his power under the INA to

proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and [...] suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order [...].

The relevant section of the INA is at 8 U.S.C. 1182(f):

(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. [...]

This question is about the phrases "immigrant entry" and "entry as immigrants." In particular, there are reports of aliens from these countries, who have already been admitted to the United States for permanent residence, who are in possession of their "green cards," having been denied entry to the US, or at least having been denied boarding by airlines.

The question, therefore: Is re-entry of a green card holder properly within the scope of "immigrant entry"? In particular, has any court ruled on the question?

I have not found any other part of the executive order that could be read as barring green card holders from entering the US, but I may have overlooked something. Is there another part of the order that is relevant to the entry of permanent residents?

  • @K-C but the order specifically bars aliens from "immigrant entry"; it's not intrinsically clear that this includes re-entering LPRs. – phoog Jan 28 '17 at 17:33
  • Since it is unclear, I'd recommend that if you might be affected, you should stay within the USA if you are there so you don't get into the situation where you have to enter again. Until everything becomes clear. – gnasher729 Jan 29 '17 at 0:11
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    Update: The DHS Secretary has now deemed entry of permanent residents to be in the national interest, which is one of the exemptions from the ban according to the executive order. The fact he needed to make such a deeming presumes that the ban as worded in the executive order did apply to permanent residents, and it will now no longer affect permanent residents as long as he maintains this deeming. – user102008 Jan 30 '17 at 9:26
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The order refers in sec. 3(c) to "immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)". That section specifically names Iraq and Syria, plus "points to" potential areas of concern, as identified by the Sec'y of State and Sec'y of Homeland Security. The full list extends to Iran, Libya, Somalia, Sudan, and Yemen, and is set forth at 81 FR 39680.

The cited authority is 8 USC 1182(f), a section about inadmissible aliens, which says

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Thus he has authority to exclude permanent residents from re-entry (they are aliens, and re-entry is a subcase of entry), and has done so for 90 days. In the case of Syrian nationals, under sec 5(c) of the order, they are excluded until the order is changed. Sec. 5(c) of the order specifically declares

Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.

The long-term ban on Syrians also specifies "as refugees", so "such entry" might not be interpreted to refer to entry of refugee or non-refugee Syrian nationals who are permanent residents. The 90-day ban in 3(c) ("immigrant and nonimmigrant entry into the United States of aliens") does not include any further restrictors, apart from the various government-official visas that are exempted, so there would be no basis in the order for excluding permanent residents. Whether this will be strictly enforced is a separate question, though in the period when the order was active (a day), it was applied to permanent residents. Sec. 3(g) allows exceptions "on a case-by-case basis, and when in the national interest". A recent (Saturday the 28th) White House briefing says that green card holders "will need a case by case waiver to return to the United States".

The ban includes immigrants and non-immigrants, so it doesn't particularly matter how "immigrant" is defined – what matters is what an alien is. Still, "immigrant" is defined in 8 USC 1101 (15) as any alien, except a bunch of categories such as diplomats, tourists, business visitors, people in transit, students, and fashion models and similar, working temporarily here. Any permanent resident has an immigrant visa (but at any rate is an alien, and is either an immigrant or a non-immigrant).

Returning to the words of the order, neither 3(c) nor 5(3) limit the ban to issuance of visas, it refers to entry. Not all entry by foreign national requires a visa. The word "visa" is mentioned, so it is possible to construe that mention as contextually restricting the ban to visas, however 3(a) which is entitled "Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern" orders the review "to adjudicate any visa, admission, or other benefit under the INA" which indicates that there is no such limitation.

8 USC 1101(a)(13)(C) does say that a permanent resident is not "regarded as seeking an admission into the United States". Admission itself is defined in 8 USC 1101(a)(13)(A), when applied to an alien, as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer". While a permanent resident is not seeking admission (and is not applying for admission), it would still be consistent with the law to forbid admission (legal entry). If you read 8 USC 1101(a)(13)(C) as granting permanent residents widest latitude to enter without restriction, then that has the absurd consequence that permanent residents are subject to no scrutiny at all. The absurdity is avoided if "seeing admission" is a step prior to and is distinct from "being admitted" i.e. "lawfully entering".

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    You're quoting 8 USC 1182(d)(12), but the order concerns 8 USC 1187. The only sense I can make of that is that you have confused the numbers 1182 and 1187 (8 USC 1182(a) only has 10 parts). Section 1187 concerns the Visa Waiver Program, and (a)(12) concerns the countries that will make people ineligible for the VWP if they've traveled to them or are (dual) nationals of one of them. But that is incidental to the question, and I don't see anything in your answer that makes it clear that re-entry of an alien admitted for lawful permanent residence is an "immigrant entry." – phoog Jan 28 '17 at 21:21
  • After being admitted for permanent residence, no immigrant has an immigrant visa. The visas are valid for one entry only. Permanent residents enter solely with their green cards, not even needing a passport, and they are defined elsewhere in the code as "special immigrants" when returning after a temporary absence abroad. This exceptional treatment in the code leads me to believe that 1182(f) may not apply to them. – phoog Jan 28 '17 at 22:57
  • I just noticed that K-C's now-deleted answer was edited to cite 8 U.S.C. §1101(a)(13)(C) before it was deleted. This indicates that most green card holders should beunaffected by the ban. K-C, if you're reading this, you should undelete your answer. – phoog Jan 28 '17 at 23:05
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    If let's say a Syrian citizen moved legally to Germany and then boards a flight from Germany to the USA, would that be entry of an alien from Germany or entry of an alien from Syria? Both could reasonably be argued. Same lets say for a German journalist who takes a flight from Syria to the USA, just the other way round. – gnasher729 Jan 29 '17 at 0:15
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    @user6726 that's not policy dicta, that's the actual order. In section three: "I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries ..." Was there some other part of the order that mentions "citizens" or "nationals" of those countries? I didn't see it. – phoog Jan 29 '17 at 3:03

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