An Overlooked (and Alarming) Piece of Trump’s Immigration EO

The Executive Order that halts all refugees admissions and bans the nationals of seven predominantly Muslim nations is mean-spirited, dangerous, and unconstitutional for all the reasons many, many others have discussed. Thanks to the hard work of the ACLU, National Immigration Law Center, International Refugee Assistance Project, CAIR, and numerous other organizations and individuals, legal challenges are protecting individuals from being unconstitutionally detained or deported. And I fully expect that much of the Order will be declared unlawful and unconstitutional, as it clearly is. (Read here, here, and here for excellent commentary as to why.) Meanwhile, the damage to individual lives—and our national security—is profound.

I write now to highlight one additional aspect of the Order that hasn’t been given any attention to date, but is quite concerning nonetheless. Specifically, Section 6 of the EO states the following:

Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.

What’s this all about? In order to be granted admission into this country, non-citizens must be checked against numerous criminal law, health, security, and, yes, terrorism-related bars on admission. It’s a vetting process that can take years and is subject to numerous reviews –thereby achieving exactly the national security benefits that Trump claims he seeks to achieve, but in ways that are lawful and highly effective. It’s by no accident that over the past 40 years, only three Americans have been killed by refugees in terrorist-related attacks – and all of those were in the 1970s.

The terrorism-related bars on admission are particularly stringent and far-reaching. They cover those who engage in the kinds of activities we normally associate with terrorism, i.e., hijacking planes, use of a weapon of mass destruction, and membership or support in any specifically designated foreign terrorist organization. But the bars also reach much broader—defining just about any group of two more people who unlawfully use a firearm or dangerous device—as a “terrorist organization,” and anyone who provided “material support” to such organizations, no matter how small or what the circumstances.   They are so broad as to, on their face, cover foreign troops and fighters that fought alongside the United States and those that supported the United States, such as Hmong and Montagnards that fought alongside the United States in Vietnam, Iraqi interpreters who assisted U.S. forces in Iraq, and Yazidi rape victims who have been enslaved and forced to cook or clean for their captors. Members or supporters of groups that the US has long supported – including Burmese resistance groups that long fought the military junta and the African National Congress (ANC) – have also been labeled terrorists under the terms of the statute.

In an effort to ameliorate these unintended consequences, Senators Jon Kyl (R-Ariz.) and Patrick Leahy (D-Vt.) jointly sponsored legislation—added to the 2008 Consolidated Appropriations Act (see Sec. 691)—that exempted 10 named groups from the definition of terrorist organization. The list including several Burmese resistance groups, Cuban Alzados that had fought against Castro, and Hmong and Montagnards in Vietnam. (Separate legislation exempted the ANC.) The legislation also granted the Secretaries of Homeland Security and State, in conjunction with the Attorney General, discretionary authority to issue further exemptions. It soon became apparent, however, that while the legislation covered those who supported the listed groups, it didn’t actually offer any protections for those who actually engaged in covered activity on behalf of the group – such as those that actually fought alongside the United States in the Vietnam War and those Burmese resistance fighters that actually sought to defend their villages from attack. Thus, in June 2008, the Bush administration issued an exemption to ensure that the actual participants in the 10 named groups, plus the ANC, could be eligible for admission, so long as they passed the numerous other security reviews and did not target noncombatants in their activities. 

A handful of other discretionary exemptions have since been issued – but only after extensive interagency discussions, numerous intelligence and security reviews, and careful vetting. These include exemptions for the Iraqi National Congress; Kurdish Democratic Party and Patriotic Union of Kurdistan; Iraqis who worked alongside or served as translators for U.S. troops or contractors; those who were forced to provide material support to a terrorist organization under duress (i.e. rape victims enslaved by their captors); doctors in conflict zones who, consistent with their ethical obligation, provided care to the wounded without regard to their group affiliation; and individuals who provided a bowl or rice or glass of water to fighters coming through their village, well aware of the consequences to them and their family if they failed to comply.

Importantly, nothing in these exemptions requires or even encourages the issuance of a visa or any other immigration benefit. Rather, they merely lift one of the many bars on admission. Individuals still need to pass all of the other numerous security, criminal, terrorism-related and other background checks. Individuals cannot be admitted if they engaged in or materially supported any terrorist activity that targeted noncombatants. And they must be affirmatively determined not to pose a danger to the United States in order to be admitted or granted any other immigration-related benefit.

These exemptions are all now about to be reviewed, with the implicit implication that they should go. But rescinding these exercises of discretionary exemption authority would be, like so much of the rest of the EO, not only mean-spirited but also counterproductive. These exemptions are critical to allowing a range of foreign leaders to enter the United States for UN meetings or diplomatic discussions with the State Department; they protect against Iraqis that have assisted U.S. troops and helped save U.S. lives from being labeled terrorists for their activities; and they are necessary to ensure that rape victims and other victims of terror are not equated with the terrorists that terrorize them.

Absent these exercises of the exemption authority, each and every individual who met one of these categories would have to be issued a discretionary waiver, in his or her name, issued directly either by the Secretary of State or Secretary of Homeland Security. If history is any guide, few, if any, cases would reach this level. Those outside the United States – such as those who aided U.S. troops and were terrorized by terrorists—would never even make it to the stage where their case would even be reviewed by the relevant Secretary. Once deemed ineligible for terrorism-related reasons, there would be no reason to engage in the further security reviews to even determine if he or she would be eligible but for the terrorism-related bar and thus eligible for such an exemption. Those already in the United States, including refugees and asylum-seekers that have lived in the United States peacefully for years and were seeking legal permanent resident status or the opportunity to naturalize would be out of luck—unless they happened to get the ear of the Secretary of Homeland Security.  But why in the world would the Secretary want to invest his limited resources in personally reviewing each such individual case?  Answer: He almost certainly doesn’t.  The likely result: most, if not all, would be summarily denied.

Here’s to hoping that those doing the consideration take all of this into account. Otherwise the United States will be  further defining key allies and victims of terror as terrorists in ways that not only bely our history as a nation of immigrants, but will also have negative diplomatic and security costs down the line.

Image: Warrick Page/Getty

 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).