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Protecting U.S. Borders and the Limitations on Foreign Nationals’ Rights

By Jamie Salazer

Technological advances have facilitated the transfer of goods, services, and people around the world and across country borders. In fact, the United Nations World Trade Organization (UNWTO) World Tourism Barometer reported that between January–April 2017 destinations around the world received 369 million international tourists (overnight visitors). However, with the increasingly interconnected world, many countries, including the United States, have an increased need to secure their borders and limit the entrance and rights to those who enter and reside in the country.

The United States has a long history of limiting its borders and continues to have a per-country limit on the maximum number of family-sponsored and employed-based preference visas per fiscal year set forth by the Immigration and Nationality Act (INA). In addition, there have recently been added restrictions to the United States borders which have limited of foreign nationals’ rights to enter on a valid visa. Specifically, President Donald Trump signed two executive orders, 13769 (“EO-1”) and 13780 (“EO-2”), and a presidential proclamation which restrict rights previously extended to immigrants under the United States Code and INA on the basis that such individuals posed a threat to the nation’s security.

While EO-1 was revoked and a hold was placed on EO-2, in Trump v. International Refugee Assistance Program the United States Supreme Court partially lifted the various injunctions on EO-2 allowing for the newly created limitations on foreign nationals’ entrance into the United States. This partial reinstatement resulted in foreign nationals from Libya, Iran, Somalia, Sudan, Syria, and Yemen, without a credible claim of a bona fide relationship with a person or entity in the United States, being temporarily banned from travel to the United States. Most recently, the presidential proclamation further limited travel restrictions from a 90-day suspension to an indefinite amount of time, for foreign nationals from the above-mentioned countries. In addition, the presidential proclamation also expanded the list of countries to restrict nationals from Chad, North Korea, and Venezuela from entering the United States for an indefinite amount of time beginning October 18, 2017.

While the above-mentioned executive orders and the presidential proclamation have limited the rights of foreign nationals, there is also debate regarding whether to grant foreign nationals already in the United States additional rights while in the country. Specifically, Jennings v. Rodriguez is currently challenging the allowance for the detention of foreign nationals, excluding those subject to a final order of removal, for more than six months without providing individualized bond hearings and justification for continued detention under 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a). The United States Court of Appeals for the Ninth Circuit affirmed the United States District Court for the Central District of California’s decision to grant a preliminary injunction standard requiring the government to provide foreign nationals with a bond hearing and release such foreign nationals who are not dangerous to the community or a flight risk. However, the case was recently argued before the Supreme Court and whether or not such rights will be granted has not been determined.

Protecting the national security of the United States has certainly led to the limitation of our borders as well as foreign nationals’ rights. While foreign nationals do not possess the same rights as United States citizens, the United States government has recently restricted additional rights in the interest of national security. Indeed, we have seen foreign nationals’ rights to visas further restricted due to EO-1, EO-2, and the recent presidential proclamation. In contrast, Jennings v. Rodriguez reminds us of the balance between protecting the United States borders and the need to continue to uphold the rights of foreign nationals already in the country.


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