The new order also is expected to remove a provision giving preference to refugees who are members of religious minorities, which was expected to benefit Christians coming from Muslim nations, several people said, another change that could help the government’s constitutional case in court.
The revised order also is expected to again temporarily suspend the admission of refugees to the US, but unlike the original, it is likely to treat Syrian refugees the same way as those from other countries, according to two people familiar with the planning. The original executive order suspended the entire refugee program for four months and indefinitely suspended admission of Syrian refugees.
The people familiar with the planning cautioned that changes were still possible before the final order is issued. A White House spokesman declined to comment.
The original order temporarily banned travel from seven Muslim-majority countries, with the White House citing terrorism concerns. Some people familiar with discussions said the list of affected countries wasn’t likely to change, but one person said Iraq would be removed from the list, given that many people coming from there helped the US military or had family members who did.
The other countries on the original list are Iran, Syria, Libya, Yemen, Somalia and Sudan. The Trump administration singled out the seven countries as posing a particular terrorism concern. Officials said people from these countries had been singled out for tighter scrutiny under the Obama administration.
But last week, The Wall Street Journal reported that a Department of Homeland Security intelligence report found that immigrants from these seven countries pose no particular risk of being terrorists, contradicting the White House claims.
DHS said its staff “assesses that country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” In response, the White House said the report was politically motivated and poorly researched.
Under the original order, legal permanent residents, or green-card holders, weren’t permitted to return to the country, though White House officials subsequently said they were. The new order will make clear that green-card holders are exempt from the ban, several people said.
The revised approach including only new visa applicants is meant to address concerns raised by the Ninth US Circuit Court of Appeals in San Francisco, which stayed several key provisions of the original order.
The federal appeals court said the original order likely violated constitutional due-process protections for travelers excluded from the country, because they weren’t given notice of the policy or a chance to challenge their denial of entry into the US It is possible the administration could avoid the same kinds of due-process issues by focusing on foreigners who don’t have green cards or visas in hand, meaning they haven’t been previously approved for US travel.
The president has broad powers over US borders, but judges have said those powers aren’t absolute. No court has issued a final ruling on the original executive order, but judges across the country found preliminary legal problems with the Trump administration’s initial order.
While the Ninth Circuit focused on the due-process issue, a Virginia federal judge ruled two weeks ago that the travel ban likely violated constitutional protections against religious discrimination by singling out Muslims.
Not all courts have ruled against Mr. Trump. A federal judge in Boston sided with the president.
One expert in immigration law predicted that even with these changes, a new executive order would still run into legal jeopardy.
Jonathan Meyer, who was deputy general counsel at DHS in the Obama administration, said the courts are likely to continue to see the order as religious discrimination, based on past proposals by Mr. Trump during the presidential campaign and statements by one of his top supporters that characterized the effort as a Muslim ban.
“No rewrite of the order can retract those statements, so it doesn’t look like the First Amendment problem will go away,” Mr. Meyer said.
Many of the cases remain pending, though any legal challenges may have to start afresh if the new order fully replaces the old one.
The Justice Department has said in recent legal papers that the old order would be rescinded and replaced, but White House press secretary Sean Spicer has made public statements that were more equivocal about the old order.
Source: The Wall Street Journal