Trump’s new travel ban leaves narrow openings for challengers

The Trump administration’s travel ban presents a complex case for immigration advocates who have challenged previous efforts by President Trump to close the U.S. to certain foreigners.

Trump needed multiple bites at the apple during his first term before the Supreme Court upheld the third version of his so-called Muslim ban in 2018.

His latest version is more sweeping, targeting 19 countries instead of seven. It’s also more narrow in the exceptions that would allow people to skirt the new restrictions.

Trump’s Supreme Court-approved travel ban was finally able to win over the courts with the argument it was needed on national security grounds.

But his latest travel ban also points to visa overstay rates as a rationale for blocking citizens from U.S. travel.

That addition is something that could provide an opening to legal challenges, said experts interviewed by The Hill.

“The rationales that are given in the order go far beyond national security-related justifications,” said Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy (CILP) at the University of California, Los Angeles School of Law.

He noted that when the Supreme Court upheld Trump’s first travel ban, “they were focused almost exclusively on national security-related justifications.”

“These are justifications that are not in any way national security related. They're just immigration policy rationales. ... That’s definitely an area of potential legal vulnerability.”

Trump’s travel ban places full restrictions on citizens from 12 countries: Afghanistan, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Myanmar, Somalia, Sudan and Yemen. It also places partial restrictions on seven other countries: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan and Venezuela.

For some countries, the Trump administration’s latest ban cites faulty “screening and vetting measures” inhibiting U.S. Embassy staff from reviewing visa candidates.

But the executive order repeatedly references countries’ visa overstay rates — the percentage at which a country’s citizens remain in the U.S. beyond the time period allowed under their visa.

“It's just collective punishment. None of the people who are banned under this proclamation are banned for anything that they did wrong, or any actual individual suspicion that they will do something wrong,” said Adam Bates, a counsel at the International Refugee Assistance Project.

“It's just this kind of collective punishment. ‘We don't trust your country. We don't trust your government. We don't trust you based on no other reason than where you were born — not because of anything you did or have done or will do.’”

Raha Wala, vice president for strategy and partnerships for the National Immigration Law Center, said those inconsistencies will likely factor in the lawsuit.

“One of the real legal defects of this new, expanded ban is that it's completely arbitrary. You know, folks from Canada have one of the highest visa overstay rates, but they're not on this ban list,” he said.

In issuing the new ban, the administration highlighted an Egyptian man arrested in an attack on demonstrators in Boulder, Colo., calling for the release of hostages held by Hamas. The man, Mohamed Soliman, filed for asylum shortly after arrival but overstayed his initial visa.

Yet the administration did not include Egypt on its travel ban, which Wala argued shows it is an “arbitrary and capricious, expanded ban” designed to “ban or restrict individuals from countries that President Trump, perhaps personally, just doesn't like.”

He added that the ban would disproportionately hit “lots of countries of Black folk, brown folk, Asian folk and Latino folk.”

Trump has defended the exclusion of Egypt.

“Egypt has been a country that we deal with very closely. They have things under control. The countries that we have don’t have things under control,” Trump told reporters in the Oval Office earlier this month.

Arulanantham said litigation will likely include a review of visa overstay rates for countries not included in the ban.

“I think it’s highly problematic to assume that, ‘Oh, because some people from Burundi overstay, therefore we should assume that the others will and ban them all.’ It’s obviously highly problematic from a moral perspective. It's discriminatory. But if you're going to take that kind of approach that you have to ask the question like, ‘OK, well, are these really outlying countries?'” he asked.

Trump has already moved to lift protections on citizens from a number of the countries on the travel ban list, such as Afghanistan, Cuba, Haiti and Venezuela.

Former President Biden designated Temporary Protected Status (TPS) — protections from deportation — for migrants from Afghanistan, Venezuela and Haiti. He also started a parole program that granted entry for two years and work permits to citizens from Cuba, Haiti, Venezuela and Nicaragua if they could secure a U.S.-based financial sponsor.

Trump has since scrapped the parole program while terminating TPS for countries now included in the travel ban. Those moves have been challenged in court.

In stripping TPS, Trump has argued Afghans, Haitians and Venezuelans no longer merit the temporary refuge the protections give for those fleeing civil unrest or natural disasters. 

All three countries are currently roiling from various political controversies and are facing severe food insecurity.

“For the purposes of terminating TPS, Afghanistan is a safe, stable, secure country. And for the purpose of banning Afghans from getting visas, Afghanistan is a terrorist-run failed state,” Bates said. “They're self-contradicting.”

State Department spokesperson Tommy Pigott defended the ban as a national security measure as well as “broader action from this administration on a whole host of visa issues.”

“This is a national security imperative,” he said during a briefing earlier this month.

“Do we have the ability to vet people coming in, and this, again, has been that priority from the beginning of this administration. Can we say with confidence that people coming to the United States have been properly vetted? Is there essential authority in these countries that can confirm that? Can we trust what they're telling us?”

While immigration advocates felt confident the new travel ban was discriminatory, they hedged on whether any challenge would be successful in court.

“It’s certainly possible, it's very possible, the Supreme Court upholds this,” Arulanantham said, noting that such a move would have “very dramatic impacts on immigrant communities” and separate families.

Wala also expressed some doubts.

“I don't want to oversell the case, so to speak,” he said.

“Are we super confident this particular Supreme Court is going to come down the right side of this one? Well, not necessarily, because they upheld what we viewed and still view to be a very unconstitutional ban the prior time.”