US & Canada

Trump travel ban: Five questions about the revised executive order

Somali refugee, caught in limbo after first travel ban, kisses his wife at Salt Lake International Airport Image copyright AP
Image caption The first travel ban caused confusion at airports and left some families in limbo

President Donald Trump's second attempt to ban refugees and immigrants from several mostly Muslim countries from entering the US has - like his first - run into legal difficulties.

His first executive order, which sparked mass protests and confusion at airports, was halted by the courts in February.

Then just hours before a revised version was due to go into effect at midnight on 16 March, a judge in Hawaii suspended it nationwide.

How is the second order different - and what happens next?

Who does the ban affect?

The original order barred people from seven majority-Muslim countries - Iran, Iraq, Syria, Yemen, Somalia, Sudan and Libya - from entering the US for 90 days. It also halted refugee resettlement for 120 days and banned Syrian refugees indefinitely.

The revised order removed Iraq from the list, after it agreed to boost co-operation with the US and also the lifted the indefinite ban on Syrian refugees.

Previously, there was confusion about people from the seven countries who were also permanent legal US residents (green card holders), or who already had US visas or dual nationality. The new version makes it clear that visa and green card holders from the countries on the list - now six countries - will still be allowed entry, as will dual nationals travelling on a passport from a country not on the list.

Image copyright Getty Images
Image caption Donald Trump hit out at judges who refused to reinstate his ban

Waivers can be granted on a case-by-case basis, if denying entry would "cause undue hardship", in cases such as:

  • People employed by the US government
  • People needing urgent medical care
  • People previously admitted to the US for work or study whose activities would be "impaired"
  • People seeking to live with or visit relatives who are US citizens or permanent residents

The number of refugees for the year until October will be capped at 50,000, some 35,000 less than the previous 12 months.

Why those countries?

The second executive order states that each of the six countries is either considered a state sponsor of terrorism by the US or "has been significantly compromised by terrorist organisations or contains active conflict zones". This "diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States," the order says.

Critics have noted that major attacks such as the 9/11 New York attacks, the Boston marathon bombing and the Orlando nightclub attack were carried out by people from countries not on the list, such as Saudi Arabia, Egypt and Kyrgyzstan, or by US-born attackers.

More on Trump's travel ban

Why was it originally suspended?

Judges who first suspended - and then upheld the suspension - of the first order cited several concerns:

  • The speed of the roll-out - judges in San Francisco said the justice department had failed to show the executive order gave enough "notice and a hearing prior to restricting an individual's ability to travel"
  • They said there was "no evidence that any alien from any of the countries named in the order" had committed a terrorist attack in the US
  • The exclusion of Syrians in January's order was also problematic. The Immigration and Nationality Act says no person can be "discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth or place of residence"

The second order allowed a 10-day lead-in time before it was due to come into effect, in an attempt to avoid the confusion and uncertainty caused by the immediate implementation of the first, where scores of people were detained at airports or in transit.

But nevertheless, a judge in Hawaii still suspended the revised order. He concluded that, were the ban to go ahead, there was a strong likelihood it would cause "irreparable injury" by violating First Amendment protections against religious discrimination.

His justification focused on comments made by Mr Trump and his advisers that suggested their intention was to ban people on the basis of their religion, even though the administration says this is not the case.

The Hawaii court also cited a "dearth of evidence indicating a national security purpose".

The justice department said the ruling was "flawed both in reasoning and in scope".

A judge in Maryland later also blocked the order, on the basis that the travel ban was likely to be considered a ban on Muslims and therefore unconstitutional.

Other legal challenges to the second order:

Oregon - said the order hurts residents, employers, universities, health care system and economy

Washington - it has "same illegal motivations as the original" and harms residents, although fewer than the first ban

Minnesota - questioned the legality of the move, suggesting the Trump administration cannot override the initial ban with a fresh executive order

New York - "a Muslim ban by another name", said the attorney general

Massachusetts - new ban "remains a discriminatory and unconstitutional attempt to make good on his campaign promise to implement a Muslim ban"

California - says order is an attack on people based on their religion or national origin

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Media captionMuslim students on Trump ban: 'I don't belong here'

Is it a "Muslim ban"?

This is becoming a crucial question in the legal battle.

On 14 February, a US district judge in Virginia ruled the first order was unconstitutional because it had religious bias at its heart.

Ruling on the second version, the Hawaii court also dismissed the government's argument that the ban is not anti-Muslim because it targets all individuals from the six countries, regardless of religion, and the countries themselves represent only a small fraction of the world's Muslim population.

"The illogic of the government's contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed," the court ruling said, pointing out that the countries' populations were between 90% and 99% Muslim.

The court also cites statements made by Mr Trump, such as a 2015 press release calling for "a total and complete shutdown of Muslims entering the United States".

But the Department of Justice says that a distinction should be made between things said as a candidate and as president.

In a bid to address religious discrimination issues, the second order removes a particular section that said refugees' claims should be prioritised "on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality".

Mr Trump previously said priority should be given to persecuted Christians.

What happens next?

The president said he would take the case "as far as it needs to go," including to the Supreme Court.

An appeal against the Hawaii decision would be expected to go next to the Ninth Circuit Court of Appeals - the same court where a panel of three judges decided in February not to block a ruling by a Seattle court to halt the original travel ban.

However, on 16 March, five of the 29 judges at that court wrote a letter saying they believed that decision was an "error", and the first executive order was "well within the powers of the presidency".

If the Ninth Circuit were to uphold the Hawaii court's ruling, the government could appeal to the Supreme Court.

The Supreme Court is currently made up of four conservative and four liberal judges, awaiting the appointment of a replacement for the conservative Antonin Scalia who died last year.

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