White House Counsel Holds that Executive Order Does Not Apply to LPRs

Update: The United States District Court for the Western District of Washington issued a temporary restraining order against the entry restrictions in the Executive Order that is in effect as of February 5, 2017. Please follow our website for further updates.

On February 1, 2017, the Counsel to the President, Donald F. McGahn II, issued a Memorandum to the then-Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security titled “Authoritative Guidance on Executive Order Entitled 'Protecting the Nation from Foreign Terrorist Entry into the United States' (Jan. 27, 2017).”¹ The Memorandum concerns the enforcement of President Donald Trump's recent Executive Order suspending entry for aliens from seven specified countries [PDF version].

The Memorandum covers to sections 3(c) and 3(e) of the Executive Order. Section 3(c) suspends immigration from the seven countries specified in section 217(a)(12) of the Immigration and Nationality Act (INA) for 90 days, while section 3(e) directs the Secretary of Homeland Security, in consultation with the Secretary of State, to submit to the President a list of countries recommended for similar entry prohibitions that do not provide adequate information needed to adjudicate visas, admissions, or other benefits under the INA. Specifically, the Memorandum clarifies to the Secretary of State, the Attorney General, and the Secretary of Homeland Security that the Executive Order does not apply to lawful permanent residents of the United States (LPRs).

The Executive Order was initially interpreted as applying to LPRs. After several federal district courts stayed the enforcement of the Executive Order against LPRs, the DHS issued guidance that the entry of LPRs from the restricted countries would generally be found to be in the national interest, which would allow entry under the Executive Order. The new guidance from the White House means that the Executive Order will not apply to LPRs. This means that going forward, LPRs from restricted countries will not require waivers or exemptions under the EO in order to enter the United States. Because many of the early court rulings against the EO were based on its application to LPRs, the White House's new position may serve to preempt much of the litigation on this issue.

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1. AILA Doc. No. 17020300 (Posted Feb. 3, 2017)