San Francisco International airport, Muslim ban protest, "day two," January 30, 2017
On March 6, the Trump White House issued an executive order limiting entry to citizens from a group of Muslim-majority countries. The order was a revision of Trump’s previous order, blocked by the courts soon after it was announced in late January. Hours after the new version was rolled out, a new lawsuit sought to block the implementation of the revised order, set to go into effect March 16.
The new order appears to be narrower in scope, at least initially. It claims to exclude “categories of aliens that have prompted judicial concerns.” Green-card holders, dual citizens, and Syrian refugees are exempt from the blanket ban. Iraq is no longer on the list of affected countries, and the order allows for exceptions from the other targeted countries and for refugees on a “case-by-case” basis.
Nonetheless, on March 7, the state of Hawaii filed suit in federal court on behalf of the state and Ismail Elshikh, PhD, the Imam of the Muslim Association of Hawaii. The state claims Trump’s order harms Elshikh by preventing his Syrian mother-in-law from visiting her family in Hawaii. The state asserts the Trump Administration is acting “arbitrarily and capriciously” in its choice of countries on the banned list.
It also alleges the White House is violating the First Amendment’s establishment clause by “officially preferring one religion over another,” the due process and equal protection clauses of the Fifth Amendment, and various statutes, including the Immigration and Nationality Act and the Religious Freedom Restoration Act. A preliminary hearing is set for March 15, the day before the order is slated to go into effect, meaning sections of the order could be put on hold.
The initial order, released January 27, triggered chaos at U.S. airports and in other countries as it was rolled out with little notice and no guidance for immigration officials. Green-card holders from seven countries—Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen—were swept into detention upon arriving in the United States, while refugees who had spent years being vetted for the chance to restart their lives in the United States were instantly banned. Some 60,000 visas for foreign visitors were revoked, and in some cases, Customs and Border Protection agents reportedly pressured detained legal U.S. residents to sign away their residency rights.
As protests erupted around the country, dozens of lawsuits were filed against the order. Within a week, federal judges around the country blocked most, but not all, of the executive order. The Ninth Circuit Court of Appeals upheld the injunction, saying it raised “significant Constitutional questions,” particularly in relation to the violation of due process and First Amendment freedoms, so the Trump Administration went back to the drawing board.
The revised order affords the Trump Administration wide latitude in broadening the scope of the order later on, with language that will allow the profiling of entire countries so as to exclude their citizens. It states that the U.S. government will conduct “a worldwide review” to determine what “additional information will be needed from each foreign country” to assess the application of any person from one of the specified countries seeking to admission to the United States so as to ensure they are “not a security or public-safety threat.”
The order adds that “At any point . . . the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment.” And, “The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.”
Put together, this language could enable wildly differing criteria for nationals from one country to the next, as well as countries coming on and off the list at the whim of the White House.
The American Civil Liberties Union immediately decried the order as a “new Muslim ban” that “shares the same fatal flaws” as the previous ban.
Similarities between the two orders include a cap on refugee admissions this fiscal year to 50,000. More than half that amount have already been admitted, adding to worries that thousands more would be left in limbo. Unlike the Obama Administration’s plan to admit 110,000 refugees this year, there is no indication that even 50,000 will be let in.
Similarities between the two orders include a cap on refugee admissions to 50,000. More than half that amount have already been admitted, adding to worries that thousands more would be left in limbo. Unlike the Obama Administration’s plan to admit 110,000 refugees this year, there is no indication that even 50,000 will be let in.
Also retained is the standard of making exceptions only for those individuals from excluded countries who do “not pose a threat to the security or welfare of the United States.” This recalls the “proving the negative” demand the Bush administration placed on Iraq in regard to weapons of mass destruction.
There is never definitive proof that something does not exist, so demanding a refugee or excluded national prove he or she will never a pose a threat is an impossible standard.
Hawaii points to Trump’s intent as being discriminatory as evidenced by his 2015 campaign statement “calling for a total and complete shutdown of Muslims entering the United States.”
While the new order, in banning those who lack visas, has a lower threshold to prove a national security threat, experts say it still shows an intent to discriminate. Shirin Sinnar, associate professor of law at Stanford, told the Milpitas Patch, “[Courts] can also look to the historical background of a policy, the sequence of events preceding its adoption, and the statements of drafters.”
In listing comments by Trump and his advisers that show discriminatory motives, Hawaii cites Senior White House Adviser Stephen Miller as saying on February 21 that there would be technical changes to the revised order, but, “Fundamentally, you’re still going to have the same basic policy outcome for the country.”
The new order states that, in the name of transparency, the Trump Administration will publicize information about foreign nationals who have been charged, convicted, or removed from the United States for terrorism-related offense, including the broad “material support” charge.
The order also declares that the government will publicize cases in which immigrants have been charged with terrorism after being “radicalized,” and it highlights “acts of gender-based violence against women, including so-called ‘honor killings,’ in the United States by foreign nationals.” These statements reflect commonly held stereotypes of Muslims and could be pointed to as evidence of discriminatory intent in legal challenges.
These provisions ignore a Department of Homeland Security memo the White House requested, apparently hoping to bolster its arguments that nationals from the seven countries on the original banned list were exceptional risks. The memo, however, was bluntly titled, “Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States,” and found that citizens from the seven nations subject to the order were “rarely implicated in U.S.-based terrorism.”
Nevertheless, the Trump Administration continues to target people from those countries. PEN America, the writers and freedom of expression advocacy organization, has compiled cases of prominent artists and intellectuals who have been reportedly detained, harassed, and intimidated when trying to enter the United States since the first order was put on hold. These include a best-selling children’s author from Australia, a French historian of the Holocaust, and an American artist who was pulled aside and questioned about an art exhibit in Belgium in which he had participated.
Others caught in Trump’s dragnet include U.S.-born Muhammad Ali Jr., son of the boxing legend, who was detained and questioned about his Muslim faith after returning to the states from a Black History Month even in Jamaica, and a New York gallery owner and decade-long legal U.S. resident who was detained for thirty-six hours in a “dehumanizing and degrading” experience before being forced onto a flight to Argentina.
On February 22, passengers on a flight from San Francisco to New York claimed that CPB agents forced them to show documents before being allowed to disembark, a questionable if not illegal procedure.
Whatever happens to the new order, the Trump Administration still retains vast power to increase crackdowns and harassment by immigration and border police.