Academic journal article Journal of Transportation Management

International Passenger Transportation: Status of the Refugee-Related Passenger Transportation Ban after Fourth Circuit Opinion

Academic journal article Journal of Transportation Management

International Passenger Transportation: Status of the Refugee-Related Passenger Transportation Ban after Fourth Circuit Opinion

Article excerpt


International Refugee Assistance Project v. Trump (1) is one of the most important transportation case rulings in some time. As such, how and why the courts have overturned EOs 13769 and 13780 (2) fits in no more ideal place than the prestigious pages of this journal. The paper proceeds by reviewing the facts and opinion in the case. Transportation implications and the future are then discussed.


EO 13769

In late January 2017, President Trump signed EO 13769. It was issued in response to alleged past and present visa-issuance failings. The EO's text discussed barring nationals of certain countries for bearing hostile attitudes toward America. It emphasized countries' nationals who would put violence and ideology first and US rules second. The EO also mentioned excluding countries' nationals who believe in hate and honor killings. Under authority from 8 U.S.C. Section 1182(f), President Trump used the EO to suspend the travel and transportation of foreign aliens of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days. Allegedly, the Director of National Intelligence, Secretary of Homeland Security, and Secretary of State would utilize this time to review what additional information was required to determine whether those countries' nationals posed a national security threat. In addition, this EO reduced refugee admission from 110,000 to 50,000 and permanently barred Syrian refugees. The US Refugee Admissions Program (USRAP) was suspended 120 days. On USRAP's resumption, the EO ordered the Secretary of State to favor refugee claims based on religious persecution but only if the individual was in the religious minority for their country of origin.

The courts responded to the EO with several findings and rulings. The Fourth Circuit recognized that Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen are predominantly Muslim countries. For instance, it cited to the fact that the nationals of Iraq, Iran, Libya, Sudan, Somalia, Syria, and Yemen are respectively: 99 percent, 99.5 percent, 96.6 percent, 90.7 percent, 99.8 percent, 9.89 percent, and 99.1 percent Muslim. A Western District of Washington federal judge granted a temporary restraining order (TRO), enjoining these EO provisions' enforcement. (3) The Ninth Circuit denied a TRO stay, declining to rewrite the EO by limiting the TRO's scope. It referenced the elected branches as better equipped for that task. (4)

EO 13780

President Trump enacted a second EO in early March 2017: EO 13780, "Protecting the Nation from Foreign Terrorist Entry into the United States." (5) It revoked and replaced the first EO. It reenacted the 90-day suspension of travel and transport of countries' nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen (eliminating Iraq this time). President Trump relied on 8 U.S.C. Sections 1182(f) and 1185(a), stating that unrestricted travel and transport of these countries' nationals would be "detrimental" to US interests. The explicit reasons given for this part of the EO included: reducing administrative burdens, enabling proper screening and vetting of foreign nationals, establishing adequate standards to stop foreign terrorists' entry, and countering entry of persons from those countries that would be "detrimental" to US interests.

The second EO disclosed that those countries' nationals deserved extra scrutiny given these countries' conditions presented "heightened threats." With more detail then, the fact that these countries were state sponsors of terrorism, had terrorist groups compromising them, or were active conflict zones allegedly justified this enhanced scrutiny. Additionally, the risk of terrorism being exported from these countries to the US was "unacceptably high." Nationals of nearly 40 countries could enter the US under the Visa Waiver Program temporarily as tourists or for business without a visa. (6) However, nationals of these six nations could not. …

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