Has the Trump Administration Instituted Travel Ban 4.0?

Monday, the White House issued a new memorandum on Non-immigrant visa overstays 

 The short version is that the White House thinks the number of people coming in with permission and overstaying the time allotted is a huge problem. How huge? The Department of Homeland Security (DHS) has determined that there were 54,706,966 in-scope nonimmigrant admissions to the United States through air or sea ports of entry with expected departures occurring in fiscal year 2018, which represents the majority of air and sea annual nonimmigrant admissions. Of this number, DHS calculated a total overstay rate of 1.22 percent, or 666,582 overstay events. 

In other words, 98.78 percent of the in-scope nonimmigrant entries departed the United States on time and in accordance with the terms of their admission. That works out to less than one half of one percent of the US population. The presidential memorandum calls this 1.22 percent “unacceptably high,” though it does so without mentioning any of the contextualizing numbers.

The countries that have more than 10 percent of the B-1/B-2 entries overstay their time include Afghanistan, Bhutan, Burundi, Chad, Congo, Djibouti, Eritrea, Georgia, Liberia, Mauritania, Nigeria, Palau, Somalia, Sudan, Syria, Yemen.  Any good immigration lawyer can tell you what most of these have in common: civil unrest and asylum claims. And when you add up the overstays from those countries, the number is roughly 35,000. Out of context a big number, but in context not so big.

The proposed way to fight this problem is to have the Department of State engage with the governments of the countries with a total overstay rate greater than 10 percent in the combined B-1 and B-2 nonimmigrant visa category and then make recommendations as to how this number could be reduced. The memo hints at solutions such as bonds for visa issuance, suspending visa issuance, and, using Section 212 (f) of the Immigration and Nationality Act as justification, suspending the ability of certain airlines to transport foreign nationals to the U.S. It reads: 

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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

 It is already hard to get a tourist visa if you are not coming from a first world country. Any applicant for a B-1/B-2 or most non-immigrant visas has to show non-immigrant intent, which means demonstrating ties to the home country, a plan of returning, a way of financially supporting oneself without work in the US, and a strong reason to visit the US. A person who receives a visa gets screened again by a Customs and Border Protection (CBP) officer at a port of entry. The CBP officer is again determining non-immigrant intent. With those regulatory measures already in place, it’s fair to wonder what this memo accomplishes other than providing a rationale for nationalism. Is it is another way to do the travel ban? Travel ban 4.0?

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