Comparing: The Leaked Draft vs Final Executive Order Barring Citizens of 7 Muslim-Majority Nations and All Refugees

On Friday, President Donald J. Trump signed an executive order implementing new immigration policies, which he stated are designed to “keep radical Islamic terrorists out of the United States of America.” Most consequentially, the order:

  • creates a 90-day entry ban on nationals of seven majority-Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen;
  • provides for indefinite extension of the entry ban on nationals from any of those seven countries if their government is unable to provide adequate information to assess whether applicants are a security or public-safety threat;
  • halts the admission of refugees from Syria indefinitely;
  • prohibits all refugee admissions into the United States for 120 days;
  • on the resumption of the refugee admissions, prioritizes refugees fleeing religious-based persecution if the individual is a member of a minority religion in his or her country of nationality (e.g., Christians in a Muslim-majority nation);
  • establishes a program to collect and publish information about “terrorism-related activity” and “major offenses” allegedly committed by foreign nationals in the United States

The President’s action on Friday follows two days of speculation since an earlier draft version of the order was leaked to the press. Comparing the text of the earlier draft with the final version reveals many potentially significant updates:

The Purpose of the Order

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program” 

  • In this phrase, “‘numerous” replaced the word “hundreds”

“The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.”

  • In this sentence, “ideologies” replaced the phrase “religious edicts.”

Entry Ban on All Nationals from Selected Countries

  • Substantively, the designated countries are the same in the draft and final version (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen)
  • The length of this temporary entry ban was extended from 30 days to 90 days
  • G-1, G-2, G-3, and G-4 (diplomatic) visas were added to the list of exceptions to temporary ban

Total Ban on Refugee Entry

“Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.”

  • The draft order might have been read to limit this discretionary exemption to individuals who serve a national interest and individuals fleeing religious persecution as long as the individual is a member of a minority religion in his or her country of nationality. The final order retains both, and includes the latter in a non-exhaustive list. That list also includes an additional category that was not (explicitly) in the earlier draft: when a person is already in transit and denying admission would cause undue hardship.
  • This final order also adds as another example of a category in which an exemption may be exercised as a matter of discretion: “when admitting the person would enable the United States to conform its conduct to a preexisting international agreement.”
  • The earlier draft did not specify that the Secretaries of State and Homeland Security make a joint determination to admit refugees on a case by case basis.
  • Note the text above should not be confused with another section on members of minority religions. The final order retained the text from the earlier draft stating that, on the resumption of refugee admissions, priority must be given to refugees fleeing religious-based persecution as long as the individual is a member of a minority religion in his or her country of nationality;

“I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.”

  • The draft did not include this clause: “until such time as I determine that additional admissions would be in the national interest.”

Data collection program

The order requires the Attorney General to collect and make publicly available:

“information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later” 

  • Here, “foreign nationals” replaced the phrase “foreign-born individuals”
  • The earlier draft did not specify that the collection would be limited to offenses/activity etc. “since the date of this order”
  • The earlier draft also didn’t include the limitation to offenses “while in the United States”

Also, a paragraph was added to the final order, requiring the collection of the following:

“Any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.”

Safe zones in Syria

This entire section on creating safe zones for refugees in Syria was completely eliminated from the earlier draft. The draft had read:

Sec. 6. Establishment of Safe Zones to Protect Vulnerable Syrian Populations. Pursuant to the cessation of refugee processing for Syrian nationals, the Secretary of State, in conjunction with the Secretary of Defense, is directed within 90 days of the date of this order to produce a plan to provide safe areas in Syria and in the surrounding region in which Syrian nationals displaced from their homeland can await firm settlement, such as repatriation or potential third-country resettlement.

Refugee resettlement

A section on the involvement of state and local jurisdictions in refugee resettlement was added to the final order:

It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees.  To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.

A section calling for a report on the costs of the U.S. Refugee Admissions Program was also added. It reads:

“The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.”

Stay tuned for analysis of the Executive Order over the weekend, and be sure to check out all of Just Security’s coverage of this topic.

 

Image: President Trump signs executive orders in the Hall of Heroes at the Department of Defense on January 27, 2017 – Getty 

About the Author(s)

Jay Shooster

Former Associate Editor and Masiyiwa-Bernstein Fellow at Just Security Follow him on Twitter (@JayShooster).