Here’s a summary of the main points of President Trump’s Executive Order “Protecting the Nation From Foreign Terrorist Entry into the United States.” The order is dated January 27, 2017, with limited comments and updates. I highly recommend you read the original at the White House website.
Purpose (Sections 1, 2). The purpose of the order is to protect Americans from foreign nationals who intend to commit terrorism-related crimes and for other “malevolent purposes.” The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and preventing their entry into the U.S. The events of September 11, 2001 highlight this, as 19 foreign nationals were involved. The U.S. “…should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”
Comment: Many believe the order itself targets Muslims for exclusion and therefore engages in the very “acts of bigotry or hatred etc.” that the order speaks against.
Entry ban (Section 3). The Secretary of Homeland Security (John Kelly is the new DHS Secretary) will within 30 days conduct a review of information needed from other countries to properly screen their nationals for U.S. visas and other immigration benefits. Countries that do not provide adequate information to the U.S. will have 60 days to start doing so. After this 60-day period, the DHS Secretary will provide the President with a list of countries that are not complying with the U.S. request and their nationals will be subject to a longer ban. Additional countries can be added at any time. Pending this review process, foreign nationals of 7 countries will not be allowed to enter the U.S. on immigrant (green card) or nonimmigrant (temporary) visas. The 7 countries are Iraq, Iran, Syria, Yemen, Sudan, Somalia, and Libya. The Secretaries of State and Homeland Security can issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked on a case-by-case basis.
Comment: Sections 3-5 are especially contentious. They impose an entry ban for nationals of the 7 listed countries, introduce highly subjective screening standards and severely curtail refugee admissions. Many questions have been raised including whether dual nationals of the listed countries are included, and whether green card holders are subject to the ban. See FAQs posted by Customs and Border Protection – the folks at the airport who decide whether to admit foreign nationals – for their comments. They say nationals will be evaluated according to the travel document they present, e.g. if a person is a UK and Somali national and is traveling on their UK passport, they are not subject to the ban. As of January 31, green card holders are being screened and evaluated on a case-by-case basis. While green card holders are not guaranteed admission and can be deported if they commit a crime and for other reasons, they are now being subject to additional screening based simply on their nationality, not the circumstances of the their situation.
Uniform screening standards for immigration programs (Section 4). Uniform standards will be developed between several departments “….[including] a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.”
Comment: these criteria are extremely subjective and go well beyond the requirements in the Immigration and Nationality Act. How exactly does one evaluate “likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest?”
Refugee admissions. (Section 5). Note the relevant dates are October 1, 2016 – September 30, 2017, the dates of the U.S. government’s Fiscal Year (FY) 2017. The U.S. Refugee Admissions Program (USRAP) will be suspended for 120 days – no refugees are to be admitted during that time. The number of refugees to be admitted will be reduced to 50,000 because more would be detrimental to U.S. interests. The entry of Syrian refugees is detrimental to the U.S. interests and Syrian national refugees will not be admitted at all until the President determines their entry is in the national interest. Exceptions can be made on a case-by-case basis, including when the person is a religious minority in his country of nationality facing religious persecution, to enable the U.S. to abide by an international agreement, or when the person is already in transit and denying admission would cause undue hardship — and the person’s entry would not pose a risk to the security or welfare of the United States.
During the 120-day suspension period the Secretary of State is “to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.”
Comment: the wording assumes current procedures are inadequate.
When refugee admissions resume, the government will prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.
Comment: this means Christians, because all these countries are Muslim-majority countries. States and local jurisdictions (counties, cities) will be granted a role in deciding the settlement of refugees in their jurisdictions.
Entry-exit tracking system (Section 7). Development and implementation of such a system is to be expedited.
Visa interviews (Section 8). All applicants for nonimmigrant visas (these are temporary visas such as visitor visas, students, and some employment visas) must be interviewed in person.
Comment: the State Department had implemented a Visa Interview Waiver Program (VIWP) in which low-risk applicants, primarily in employment categories, did not need to attend an in-person interview if they were seeking to renew the same type of visa within 12 months of expiration of their prior visa. Now everyone must attend in person. This will no doubt overload already backed up and busy U.S. consulates abroad. Also note this is completely different from the Visa Waiver Program which has not been changed (yet).
Visa reciprocity (Section 9). The government will review whether other countries are treating U.S. nationals applying for nonimmigrant visas in a reciprocal manner, and if not, will make changes to U.S. visas to match.
Comment: other countries are threatening to reciprocate and make it more difficult for U.S. citizens to travel to their countries.
Transparency and data collection (Section 10). Within 180 days, and every 180 days thereafter, the government will make available data on foreign nationals charged or convicted of terrorism-related crimes or activity; or who have been radicalized after entry into the United States and engaged in terrorism-related acts or material support for terrorism-related organizations; the “number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals” and other information relevant to national security.
Comment: this section, among others, is very poorly drafted and strongly suggests a weak review process. For example, what does it mean to be “radicalized after entry?” Regarding gender-based violence, there is not even a requirement of a conviction or arrest.
I could add my opinions on the merits of this order but I’ll leave most of those opinions for future posts. In brief, it’s un-American, unclear, discriminatory, parts of it appear unlawful, ISIS is cheering, and we are rapidly losing any moral authority we’ve had. It also makes this country unattractive to foreigners and is likely to cause economic harm. If Trump’s primary goal is jobs jobs jobs, he just made a big mistake. Unfortunately, he seems more obsessed by getting headlines and creating drama; he’s certainly achieved that.
