Repeal Travel Ban & Ensure Legal Representation for Foreign Nationals

The House passed a measure Wednesday that would repeal the Trump administration’s ban restricting travel from targeted nations and prohibit future presidents from implementing bans based on race or religion.

The measure passed (233-183) as part of a legislative vehicle (H.R.2486), mainly along party lines. The legislation would lift restrictions President Donald Trump has put on numerous countries over the years, including travel limits initially placed on a group of predominantly Muslim nations.

The measure, originally introduced as a standalone bill (H.R.2214), also would expand the Immigration and Nationality Act to prohibit discrimination based on religion. The bill is not expected to advance in the Republican-led Senate, however. 

“Today, almost three and a half years to the day after President Trump issued his first Muslim Ban, the House of Representatives voted to put us on the right side of history by repealing it completely,” the bill’s sponsor, Rep. Judy Chu, D-Calif., said in a statement. “This ban never had anything to do with national security; it was always driven by prejudice.” 

Prior to the vote, Democrats criticized the travel ban as “dangerous” and said it went against fundamental U.S. values.

“We must ensure that our country is open to everyone, not just those Trump deems acceptable,” Rep. Barbara Lee, D-Calif., said on the House floor. 

The bill was widely opposed by Republicans, many who denounced Democratic lawmakers for calling Trump’s travel restrictions a “Muslim ban.”

“This is not a Muslim ban. This is a legitimate travel restriction implemented for the safety of this nation,” Rep. Andy Biggs, R-Ariz., said on the House floor.

Trump first placed travel restrictions on a group of predominantly Muslim nations as one of his first presidential acts after he took office in 2017. In an executive order, he prohibited visas for anyone traveling from Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraq also was on the initial group of nations banned but was later removed. North Korea and political officials from Venezuela were added to the list of nations months later. 

The most recent update of the restrictions, announced in a proclamation that took effect on Feb. 22, suspended immigrant visas from Eritrea, Kyrgyzstan, Nigeria and Myanmar. The decree also barred Sudan and Tanzania from participating in the diversity visa lottery program, which annually allocates 50,000 green cards at random to countries with low rates of immigration to the United States.

Trump argued national security needs warranted the travel ban, which has drawn ire from immigration groups and civil rights organizations who said it was intentionally designed to keep out citizens from predominantly Muslim countries.

Several federal courts tried to block the ban, but in 2018 the Supreme Court ruled, 5-4, that Trump had a sufficient national security justification for a policy that on its face “says nothing about religion.”

Access to Counsel for all Individuals Entering the US 

In a second vote the House passed (231-184) Title II which would require the Homeland Security Department to provide access to counsel for all individuals subject to a secondary inspection when seeking admission to the United States. Specifically, it would require the department to allow such individuals to consult with legal representation and a relative, petitioner or other connection within the United States, within the first hour of a secondary inspection. It would also prohibit the department from accepting paperwork from lawful permanent residents subject to secondary inspection that would give up such individuals' legal immigration status without providing them the opportunity to seek advice from counsel.

ADDITIONAL INFORMATION ON H.R.2486?

BACKGROUND: 

As originally passed by the House in September 2019 and modified and passed by the Senate in early December, HR 2486 extended funding for minority-serving institutions under the Higher Education Act. Under the rule adopted by the House, the House will vote on two separate House amendments to the Senate-passed bill that together (or individually, if only one amendment is adopted) would completely substitute for the Senate-passed measure.

    Those two House amendments represent the text of HR 2214, National Origin-Based Antidiscrimination for Nonimmigrants (NO BAN) Act (H Rept 116-413, Pt 1), which has been combined with provisions intended to increase the availability of generic drugs, and HR 5581, Access to Counsel Act (H Rept 116-412 Pt 1). The Judiciary Committee reported the two bills (HR 2214 without the medical provisions) by a 22-10 vote and a 18-6 vote, respectively.

Travel Ban

    As a candidate, Donald Trump made restricting immigration, both legal and illegal, a centerpiece of his campaign, and with the Islamic State occupying a large portion of Syria and Iraq he also focused on Muslim sympathizers in other nations who carried out violent acts in those nations in support of the Islamic State.

    Following the December 2015 attack in San Bernardino, Calif., in which 14 people were killed at an office holiday party by a U.S.-born citizen of Pakistani descent who worked there, and his Pakistani-born wife (who held a green card), Trump called for "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on."

    He reiterated the call after the Pulse nightclub shooting in Orlando, Fla., in which 49 people were killed by a 29-year-old U.S.-born Muslim man who had sworn allegiance to the leader of the Islamic State.

    The Immigration and Nationality Act allows the president to "suspend the entry of all aliens or any class of aliens" that "he may deem appropriate" as long as he finds that their entry "would be detrimental to the interests of the United States." Such restrictions may be made for any period of time but may not be made to give preference or priority, or be discriminatory against someone, because of the person's race, sex, nationality, place of birth, or place of residence.

Initial Ban

    Days after assuming office, President Trump on Jan. 27, 2017, signed an executive order stating that "to protect the American people from terrorist attacks by foreign nationals admitted to the United States" it was "the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes."

    The executive order suspended for 90 days the entry into the United States of individuals from seven nations listed by statute and the Homeland Security Department as being ineligible for the Visa Waiver Program because they were state sponsors of terrorism or had been classified as "countries of concern" by the Obama administration (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen). It also reduced from 110,000 to 50,000 the number of refugees to be admitted into the United States in FY 2017, and it generally barred the entry of any refugees for 120 days.

    Many referred to the ban as a "Muslim ban" because of the president's earlier calls during the presidential campaign, and because all of the affected nations were Muslim majority. While the White House at the time objected to either that term or the term "travel ban" to describe the policy, the president himself referred to his actions as a "travel ban."

    More than 700 travelers were detained as a result of the order and up to 60,000 visas were "provisionally revoked." A nationwide temporary restraining order against the administration's policy was issued on Feb. 3, 2017, and was upheld by the U.S. Court of Appeals for the Ninth Circuit the following week.

'Travel Ban 2.0'

    On March 6, 2017, in an effort to address concerns raised by lawsuits against his initial travel ban, the president signed a new executive order to replace the original ban.

    Dubbed "Travel Ban 2.0" by critics, it limited travel to the U.S. by nationals of six countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen — dropping Iraq from the list). Rather than identifying them by referencing nations considered to be countries of concern that were ineligible for the Visa Waiver Program, the executive order specified the six nations and detailed the security concerns associated with each. It also provided for certain exceptions — including for lawful permanent residents ("green card" holders) and for dual nationals who also held a passport issued by a nonlisted country, both categories that had been ineligible under the original ban.

    Like the initial ban, it reduced to 50,000 the number of refugees eligible to be admitted into the United States in FY 2017, and also like the initial ban it was challenged in court with lower courts imposing restraining orders. The Supreme Court in June partially overturned the injunctions and agreed to hear oral arguments in October 2017, but later canceled those arguments when the administration again modified the ban, with the court declaring the cases moot.

September 2017 Proclamation

    Building on requirements in his earlier executive orders, President Trump on Sept. 24, 2017, issued a Presidential Proclamation that affirmed a U.S. national standard for the visa vetting systems of other nations that must be met and which imposed travel restrictions on eight nations that failed to meet those standards — Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia.

    Under the proclamation, the citizens of all eight nations were ineligible for immigrant visas to enter the United States (i.e., those that would make them a lawful permanent resident) and seven of the eight were ineligible for certain nonimmigrant visas (such as tourist, business, education or employment visas) — with the mix of visa eligibility varying by nation (except for Somalia, for which Somalian nationals could be eligible for all nonimmigrant visas).

    According to the proclamation, those nations all were rated as "inadequate" by the Homeland Security Department with regard to their systems for vetting visa applicants, including with regard to identifying individuals and sharing that information with the United States and certain international bodies, issuing reliable travel documents, and evaluating terrorism-related and public-safety risks. (Under the earlier executive orders, the Homeland Security Department in consultation with the State Department and Director of National Intelligence set global requirements for the vetting systems of other nations. After those standards were set and the nations that failed to meet them were identified, the State Department engaged with those nations in an effort to improve their systems, which many did.)

    In the proclamation, the president determined that the entry of individuals from those identified nations whose systems remained inadequate would be detrimental to the interests of the United States.

Supreme Court Decision & Recent Expansion

    The Supreme Court in June 2018 allowed the travel ban as established by the September 2017 proclamation to remain in place, in a 5-4 decision finding that the president has broad legal authority to set immigration policy and that his past remarks during the campaign about banning Muslims did not undermine that authority. The court said the president's reasoning in establishing the policy has "undoubtedly" been fulfilled by demonstrating that allowing banned individuals into the United States "would be detrimental to the interests of the United States."

    Under the policy, Chad was removed from the ban in April 2018 after improving its identity-management and information-sharing practices by taking steps to issue more secure passports and by increasing the integrity of how its government handles lost and stolen passports.

    On Jan. 31 this year, the president issued another proclamation, which noted that the Homeland Security Department had "refined and modified the specific performance metrics by which it assesses compliance" with its visa vetting information-sharing and identity-management standards, finding that many nations were only partially complying. Based on updated reviews, the president determined that travel restrictions were warranted for six additional nations — Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan and Tanzania.

Legal Representation

    When an individual seeks to enter the United States through a U.S. port of entry, he or she must demonstrate to a Customs and Border Protection (CBP) officer their legal authority to do so.

    Through an inspection process, CBP determines the admissibility of applicants to enter the nation. The initial inspection generally includes a CBP officer determining why the individual is coming to the United States, which documents are required for entry and whether the individual has those documents, and how long the individual may remain in the country. The CBP officer generally then makes a determination as to whether the person is or is not admissible to enter the United States.

    Sometimes, further information is needed to make the determination, and a CBP officer may order a more detailed and thorough inspection (called a secondary inspection) to conduct additional screening. It can include more in-depth questioning, additional database searches, and physical searches when an individual is suspected of carrying contraband. Questions often center around one's travel history, immigration history, and other related topics, and CBP may perform an internet search and a CBP records system search.

    Once approved, an individual is permitted to enter the United States. But if found inadmissable for entry, individuals are either turned away or removal proceedings are initiated, which can involve being placed in detention.

    If an immediate decision concerning the admissibility of an arriving alien cannot be made at the port of entry (sometimes due to a lack of documents), an individual may be scheduled for a deferred inspection on a future date, at which time the entrant must personally appear at the designated location and present the necessary documents and information. If scheduled for a deferred inspection, one is allowed to proceed into the U.S., but must report to the deferred inspection site as instructed or face forced removal.

Recent Pandemic-Related Actions

    Since the start of the COVID-19 pandemic, the Trump Administration has made dozens of changes affecting almost every facet of the immigration system. Some of the changes are temporary and have end dates (although some of those have been extended) and others have an indefinite duration. Immigration advocates contend that the administration has used the pandemic as a pretext to implement immigration restrictions that were already part of the administration's immigration objectives before the spread of COVID-19. The administration contends that it is responding to fast changing health concerns that saw the virus being brought into the country from other countries.

    Initially in the pandemic the administration focused its immigration policies at countries with high rates of Coronavirus infection, including on Jan. 31 banning entry for those who had been present in China two weeks prior. The ban was expanded to include Iran on Feb. 29 and Europe (excluding the United Kingdom and Ireland) on March 11, with the U.K. and Ireland added three days later. Brazil was added on May 24. These bans all exempted lawful permanent residents ("green card" holders), U.S. citizens and their direct family members.

    In addition, all non-essential travel between the United States and Mexico and the United States and Canada was prohibited for a 30-day period beginning on March 23, and has been subsequently extended through at least mid-August.

    Other immigration changes include a March ban on asylum seekers entering the United States (which was extended indefinitely on May 19) and an indefinite suspension of all refugee resettlements that was instituted on March 18. The administration has also suspended certain categories of permanent immigration from abroad, cancelled all routine immigrant and nonimmigrant visa appointments, effectively pausing most all legal immigration to the country (emergency appointments are still allowed), and it rescinded an expansion of 35,000 additional H-2B visas for seasonal nonagricultural positions that had been announced on March 5.

    The administration has, however, made it easier for medical professionals to work in the United States by continuing visa processing for healthcare workers and medical professionals during the pandemic, waiving the 40-hour work week requirement for some H-1B doctors affected by COVID-19, and by permitting telehealth work for H-1B physicians.

SUMMARY: Under the floor rule adopted by the House on March 11, the House will separately vote to concur with two House amendments to the Senate-passed bill, that together (or individually, if only one amendment is adopted) would completely substitute for the Senate measure. Those two House amendments are a modified text of HR 2214, National Origin-Based Antidiscrimination for Nonimmigrants (NO BAN) Act, and the text of HR 5581, Access to Counsel Act.

    The measure revokes President Trump's "travel ban" that prevents individuals from certain nations from entering the United States and limits the president's ability to issue new entry bans, and it requires the Homeland Security Department to ensure that all individuals entering the United States who are subject to extended immigration inspections have access to legal representation, beginning with the secondary inspection during the screening process.

    The travel ban amendment also includes provisions to help increase the availability of more affordable generic and biosimilar drugs by blocking the ability of drug manufacturers to use the U.S. patent system to prevent the introduction of generics and biosimilars.

    Following are summaries of those two amendments, as well as brief descriptions of the arguments being made for and against each.

Travel Ban / Prescriptions (Amendment #1)

    The amendment terminates all of the president's executive orders and proclamations that have been issued to bar citizens of certain countries from entering the United States, and it limits the ability of a president to issue new entry bans.

    Under the measure, all presidential orders that are collectively known as the "travel ban" or a "Muslim ban" issued by President Trump would be terminated upon enactment, as would all actions taken by federal agencies pursuant to those orders.

    It requires the State and Homeland Security departments to report to Congress on the entry restriction orders that have been issued by Trump to date. The report must detail the total number of individuals who applied for a visa while the ban was in effect; the total number of individuals who were approved or refused and who were granted or denied a waiver; and the total number who had a visa pending for each visa category (desegregated by country). It must also detail the total number of refugees admitted into the country since the orders were issued.

    It also modifies the Immigration and Nationality Act to explicitly forbid the use of religion to discriminate against, or to give any preference to, an individual seeking entry into the United States. (Current law forbids the use of race, sex, nationality, place of birth, or place of residence.)

Future Entry Restrictions

    Under Section 212 of the Immigration and Nationality Act, the president may suspend the entry into the United States of any class of foreign nationals he may deem appropriate as long as he finds that their entry would be detrimental to the interests of the United States.

    The amendment modifies that authority to make any such actions by the president contingent upon a determination by the State Department (in consultation with Homeland Security) that "the entry of any aliens or any class of aliens into the United States would undermine the security or public safety of the United States or the preservation of human rights, democratic processes or institutions, or international stability" — including efforts to contain a communicable disease of public health significance.

    Any restrictions or bans imposed must be based on "specific and credible threats" and must be temporary — and all restrictions must address specific acts implicating a compelling government interest, must be narrowly tailored and use the least restrictive means possible, must specify the duration of the restrictions, and must consider allowing waivers to grant family-based and humanitarian waivers.

    Prior to any entry restrictions being issued, the State and Homeland Security departments must first notify and brief Congress, supplying specific evidence that supports the need for the restrictions. And within 48 hours of the restrictions being issued, the two departments must brief and provide a written report to Congress that describes the actions taken, the specified objective of each action, the estimated number of individuals who will be impacted, and the constitutional and legislative authority for the actions. All entry restrictions would automatically terminate if the briefing and report are not provided within that 48 hours.

    The measure specifically allows any individual or entity who is present in the United States and is harmed by entry restrictions that violate legal requirements to seek relief in federal district court.

Affordable Prescription Provisions

    The amendment also includes provisions to help increase the availability of more affordable generic and biosimilar drugs by blocking the ability of drug manufacturers to use the U.S. patent system to prevent the introduction of generics and biosimilars.

    (These provisions are nearly identical to S 1416, which was reported by the Senate Judiciary Committee by a unanimous vote, and which the Congressional Budget Office estimates would decrease direct spending by $441 million over 10 years and increase revenues by $65 million, resulting in $507 million in net deficit reduction.)

Product Hopping

    Product hopping is a practice where drug companies make a small change to a product that is nearing the end of its period of patent exclusivity in order to create a reformulated product that receives a new period of patent protection for the drug manufacturer.

    Currently, it is considered to be anti-competitive product hopping if a change consists of something extremely minor, such as changing the drug delivery method from a tablet to a film or changing the dosage from twice a day to once a day — and the change is made not long before the product's patent protection ends and the drug company either removes the original product from market or advertises the revised product as better than the original. Such practices either force or induce doctors and patients to switch to the revised formulation, allowing a drug company to maintain its monopoly pricing on the drug because the generic developed for the original drug can't be automatically substituted for the reformulated, follow-on product since it is not identical.

    The amendment prohibits drug manufacturers from replacing a drug product in patent exclusivity with a similar follow-on product that is a change, modification or reformulation of the drug — and which treats the same medical condition. Such product switching would be considered unfair competition affecting commerce subject to Federal Trade Commission (FTC) enforcement.

    Under the measure, a product manufacturer would be considered to have engaged in such unfair competition if the FTC demonstrates that the manufacturer engaged in either a hard switch or a soft switch of its product after being notified by the Food and Drugs Administration (FDA) that an application has been submitted for a generic or biosimilar version of its drug — up to 180 days after the generic or biosimilar is first marketed (the generic version’s period of generic exclusivity). The measure outlines specific circumstances under which the drug manufacturer would not be considered to be engaging in unfair market practices.

    (A "hard switch" is when the manufacturer requests the FDA to withdraw approval for its product or place the product on the discontinued products list, while also marketing or selling a follow-on product, or if the manufacturer announces the drug's withdrawal or destroys the drug inventory in a manner that impedes competition from a generic while marketing or selling a follow-on product. A "soft switch" is when the manufacturer takes actions that unfairly disadvantage an existing drug relative to its follow-on product in a manner that impedes competition from a generic or biosimilar, while marketing or selling a follow-on product.)

Product Hopping Enforcement

    Under the measure, if the FTC has reason to believe a manufacturer is engaged in product hopping it may, using existing authorities, institute enforcement proceedings and impose penalties, bring suit in district court to either temporarily or permanently enjoin manufacturer actions, or seek remedies. Such remedies may include disgorgement of any unjust earnings and restitution to injured parties.

    A manufacturer subject to a final FTC order could seek judicial review.

Patent Infringement

    Manufacturers of biologics frequently surround their products with multiple patents in order to prevent the manufacture and marketing of generic versions, a practice known as "patent thicketing."

    The amendment restricts the number of late-filed, unutilized, and non-method-of-use patents that the manufacturer of a biological drug can assert — limiting to 20 the number of such patents a manufacturer may assert are being infringed by the manufacturer of a biosimilar for that drug.

    Specifically, no more than 10 of the patents for which the drug manufacturer is claiming infringement can have been issued after the manufacturer provided the biosimilar applicant with a list of patents for that drug (providing that list is required by law when a generic manufacturer files an application for a biosimilar). In addition, the patents for which the manufacturer is asserting infringement must have been filed more than four years after the drug was approved.

    The measure does allow the number of patents for which the drug manufacturer may assert infringement to be increased, if the request is made without undue delay and if certain other conditions are met.

Member Concerns — Travel Ban

    Supporters of the amendment, primarily Democrats, say the president's "travel ban" is discriminatory against Muslims and that this measure will reign in his executive overreach and defend Congress's constitutional role in setting the nation's immigration laws. The right of the president to issue temporary travel bans was originally enacted to allow the government to quickly deal with emerging issues involving national security, public safety or international stability. Instead, President Trump has misused the law as carte blanche authority to rewrite provisions of immigration law with which he disagrees, attempting to deliver on a campaign promise to ban Muslims from the United States, a promise they say is based on racial division and fear. They note that the bill explicitly continues to permit the president to use the law to restrict entry in a public health crisis, but will block his ability to use it to discriminate against broad-based groups for purposes unrelated to keeping the country safe.

    Opponents of the amendment, primarily Republicans, say the president has used limited, targeted travel bans to help ensure the nation's safety and security. The ban instituted in 2017 was not targeted at any particular group, they say, but was based on Homeland Security Department criteria for determining which countries are making reliable decisions regarding the admissibility of foreign nationals entering the United States — such as whether a country reports lost or stolen identity documents to Interpol. They point out that when a nation comes into compliance with the standards they can be removed from the list of restricted countries, just as Chad was in 2018. The Democratic measure, they say, would inhibit the president's ability to respond to a health crisis like the current pandemic involving the new coronavirus, where restrictions have been placed on individuals who have recently been to virus hot spots. It would be irresponsible to tie the president's hands in the midst of a public health crisis, they say.

Legal Counsel (Amendment #2)

    The amendment requires the Homeland Security Department to ensure that all individuals entering the United States who are subject to extended immigration inspections have access to legal representation, beginning with the secondary inspection during the screening process.

    Specifically, the department must give individuals "a meaningful opportunity" to consult with counsel and interested parties within one hour of when a secondary inspection process begins, and as necessary throughout the inspection process (including deferred inspections). To the greatest extent practicable, the department must accommodate a request for the counsel or interested party to appear in person. Legal representatives must be allowed to provide documentation and other evidence to the examining immigration officer in support of the individual.

    Under the measure, such representation must be allowed for all individuals entering the United States, including U.S. citizens, legal permanent residents, refugees, and foreign nationals with tourist, work and other U.S. visas. The measure defines "interested parties" to be relatives, a petitioner or sponsor of a visa holder, or a person, organization or entity within the United States who has a bona fide connection to the individual.

    The measure prohibits Homeland Security officers from accepting from lawful permanent residents ("green card" holders) paperwork that gives up their legal immigration status without providing the individual with a reasonable opportunity to first seek advice from counsel — unless the individual "knowingly, intelligently, and voluntarily waives, in writing, the opportunity to seek advice from counsel."

Member Concerns — Legal Counsel

    Supporters of the amendment, primarily Democrats, say the administration's hard-line immigration policy has frequently caused refugees, immigrants, Green Card holders, and even U.S. citizens to be held for long periods of time without access to legal counsel to help them understand their rights and navigate the confusing U.S. immigration system. They note that this problem was recently on display when U.S.-Iranian tensions were high and numerous Iranian-Americans were unnecessarily held at a port of entry in Washington state when re-entering the country. Unlawfully detaining and possibly deporting individuals is wrong, and denying them access to an attorney is a gross violation of their basic rights. The measure is needed to ensure all individuals enjoy due process and are able to have full representation, they argue, which will occur at no cost to taxpayers.

    Opponents of the amendment, primarily Republicans, say it is part of an effort by Democrats to eventually have the government pay for legal representation for all foreign nationals who come to the United States, at virtually every stage of the inspection process. They note that under current rules dating back decades, individuals entering the U.S. are not entitled to legal representation in either primary or secondary inspections unless they are the focus of a criminal investigation or are taken into custody. Requiring representation at secondary inspections, of which there are 17 million a year, will further slow the overall inspection process, they say, making the system less efficient. And by mandating that the Homeland secretary "shall ensure" such individuals have an opportunity to consult with counsel, the measure pushes the department towards taxpayer paid representation.