“By What Authority?” Trigonometry of EO 13769 at the Border

When CBP started removing refugees, immigrants and non-immigrants pursuant to a “Muslim Ban”, I went looking for the legal authority.

And found that CBP didn’t know either.

I was a member of the INS Inspector class to graduate after 9/11 and merged into CBP with the creation of DHS. When CBP started removing refugees, immigrants and non-immigrants pursuant to Trump’s Executive Order 13769, the first question I asked was “by what authority?” I know the authorities well and reports weren’t lining up with the law I knew. I’m not an immigration attorney, and I’ve been seperated from CBP for years, but know how to look things up.

Since then, I’ve been doing a kind of trigonometry based on news reports and court filings: given the traveler profile and punishment or threat or form number, solve for the legal authority. I’ve usually been able to identify what CBP used but, more often than not, have had to conclude that CBP exceeded any lawful authority under law. For this to happen in a consistent fashion on a systemic scale requires orders and guidance from above.

Yesterday, for the first time, I saw photographic evidence of that guidance. This is where it gets really weird.
When cancelling a visas, it is SOP to write the authority for used when defacing the document. CBP officers are limited by statute in when they can cancel visas; State officers are not limited, but visas they cancel limit what kind of removal is permissible.

[email protected], [email protected], [email protected]


Dear Sirs,

I am a former CBP officer alarmed by the way President Trump’s Executive Order 13769 has been enforced. Your client’s case caught my attention because it is one of the few instances in which news reports provided documentary evidence of CBP’s asserted authority. Having reviewed your filing in the Northern District of Illinois [1], I believe this email may contain new information advantageous to your client.

It is Standard Operating Procedure (SOP) for CBP to notate the authority used when cancelling a Non-Immigrant Visa (NIV). A typical formulation might be “REVOKED 22 CFR 41.122(e)(2)” [2], “INA 212(7)(a)(i)(I)” [3] or “without prejudice”. While the latter two don’t strictly adhere to the regulation’s format, they’re considered close enough to be general practice. When I saw that Mr. Homssi’s visa was “cancelled E.O. 59447v.8”, I went to look for the authority.

Executive Order 59447 does not exist. President Obama’s last EO was Executive Order 13764 [4] so, unless President Trump has signed over 45,000 Executive Orders since January 20, the EO canceling Mr. Homssi’s NIV cannot exist.

I placed an inquiry via Twitter with Chuck Goudie of ABC7 in Chicago [5], who has been reporting on this case. His team confirmed that EO 59447 does not exist and suggested that it may refer to a 2002 Presidential Notice published as 67 FR 59445 on page 59447 of the Federal Register[6]. The mis-identification would be easy because the effective document lists the page number but not the FR identifier. If Goudie’s team is correct, however, it raises more questions than it answers.

67 FR 59445 was a one-year extension of Executive Order 13224[7], which has been extended by Presidential Notice every year since it was issued in 2001 (most recently 81 FR 64341 on September 16, 2016). EO 13224 authorizes various executive agencies to disrupt terrorist financing by freezing or seizing the financial accounts, instruments, and various assets of designated individuals and organizations. EO 13224 does not grant CBP authority to cancel NIVs or remove aliens and, as best as I can tell, none of the subsequent notices to amend or extend the order to include such authority.

Good luck

[1] http://dig.abclocal.go.com/wls/documents/complaint-Al-Homssi-v-Trump-17-CV-801.pdf
[2] https://www.law.cornell.edu/cfr/text/22/41.122
[3] https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html
[4] https://www.federalregister.gov/documents/2017/01/23/2017-01623/amending-the-civil-service-rules-executive-order-13488-and-executive-order-13467-to-modernize-the
[5] https://twitter.com/opendna/status/826717081248886784

[6] https://www.federalregister.gov/documents/2002/09/20/02-24235/continuation-of-the-national-emergency-with-respect-to-persons-who-commit-threaten-to-commit-or
[7] https://www.federalregister.gov/documents/2001/09/25/01-24205/blocking-property-and-prohibiting-transactions-with-persons-who-commit-threaten-to-commit-or-support

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