The Ongoing Dangers of the Revised Immigration EO

The Trump administration issued its updated immigration executive order on Monday.  It seeks to correct for the total chaos that ensued after the issuance of the first Executive Order (EO) – with legal permanent residents and other valid visa holders that had temporarily traveled abroad told they could not return to the United States to reunite with their families or continue their studies or work.  Specifically, it exempts those that currently hold valid visas, but reinstates the 90-day travel ban on the residents and nationals of six predominantly Muslim states — Sudan, Syria, Iran, Libya, Somalia, and Yemen.  (Iraq is the only country on the former list that is now exempted.)  And it reinstates the 120-day refugee ban.  Moreover, the clock starts ticking as of March 16; so the travel and refugee bans last until mid-June and mid-July, respectively.

In rewriting the ban in this way, the administration largely protects itself against the kind of due process claims that led to the earlier EO’s downfall before the Ninth Circuit.  To be sure, while some already admitted individuals may have limited claims based on their interest in reuniting with spouses or other family members, the vast majority of individuals affected will be non-nationals outside the United States with insufficient connections to the United States – and thus not entitled to the relevant procedural protections required by the Due Process Clause.

But the ban remains vulnerable on Establishment Clause grounds, as David Cole explains here.  Even though it omits the explicit preference for “minority” (aka Christian) refugees included in the initial order, it comes on the heels of the president’s repeatedly stated goal of keeping Muslims out of the United States, his proclamations about the need to prioritize Christians over Muslims, and the absence of any sound national security justification for the bans.  Notably, none of the nationals of the named countries have perpetrated any lethal terrorist attack in the United States since September 11, 2001.   A leaked draft Department of Homeland Security report concludes that “country of citizenship is unlikely to be a reliable indicator or potential terrorist activity.” The EO recounts a total of three admitted refugees that have been convicted of a terrorism-related crime.  It further points to  300 people who came to the US as refugees that are allegedly “subjects” of counterterrorism investigations. The EO doesn’t provide any allegation of actual wrongdoing, any details as to the reasons, or information about whether they were admitted before or after more stringent vetting went into effect.  Moreover, while the EO cites concerning security situations in each of the named countries, it still fails to explain why concerns about other nations with equally troubling security conditions are not included.

What was stated by ten top-level national security officials spanning multiple administrations after the issuance of the January order remains true today: “[T]he Administration offers no reason why it abruptly shifted to group-based bans when we have a tested individualized vetting system” that is implemented by national security officials, continually re-evaluated, and extremely effective.

But regardless of the ultimate outcome of any legal challenge, this remains a colossal policy disaster.  It continues to tell the world that we, the great country of America, cannot distinguish between the terrorists and the victims of terror.  It paints all individuals from six countries as preemptively dangerous, regardless of any individualized determination of the facts.  It feeds into the narrative of the terrorists that portray the United States as engaged in a war against Muslims.  It threatens to undermine key counterterrorism, national security, and foreign policy partnerships with the six named countries.  And it further breeds distrust of the government from some of the very communities that law enforcement and national security officials instead should be working with to help identify threats. 

Moreover, the revised EO retains the very troubling provision (Sec. 7) that I wrote about previously and directs the Secretaries of State and Homeland Security to consider rescinding the small handful of crafted exemptions to overly broad terrorism-related bars on admission.  As I explained in my earlier post, these exemptions were issued after extensive input from intelligence and national security officials.  They are needed to, among other things, ensure that members of the ruling parties of Iraq and a range of other foreign leaders can enter the United States or travel to the United Nations for diplomatic meetings; to protect rape victims who were enslaved by terrorists from themselves being defined as “terrorists” for providing “material support” to their captors; and to protect medical professionals who, consistent with their ethical obligations, treated the wounded that came to them without regard to their group affiliation.  Notably, the exemptions simply lift one bar on admission; each individual still must pass multiple other security and terrorism-related bars and be affirmatively deemed not to pose a threat to the United States. By rescinding these exemptions, the Trump administration would only be further exacerbating the diplomatic, security, and humanitarian costs of its misguided immigration policy.  The silver lining: the exemptions remain in place for now.  Here’s to hoping they stay.

Image: Getty/Mark Wilson

 

About the Author(s)

Jennifer Daskal

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