One of President-elect Trump’s key campaign promises is the “mass deportation” of “illegals.” Now that Mr. Trump is preparing to assume the reins of power, there is understandable fear among immigrants and asylum seekers. What does the once-and-future President mean by “mass deportation”? Who will be affected? How will these plans be carried out?
The short answer is: We don’t know. Neither Mr. Trump nor his incoming staff has provided much detail about their plan. Here, we’ll review what we do know, and also take a look at the legal and logistical difficulties inherent in removing large numbers of people from the United States. (more…)
In a Fox News interview with Vice President Kamala Harris, host Bret Baier played a clip of Alexis Nungaray, whose 12-year-old daughter Jocelyn was murdered this past June. Charged with the crime are two Venezuelan migrants who illegally entered the United States shortly before the murder. Both men were apprehended near the border and released with notices to appear in Immigration Court.
In the clip, Ms. Nungaray blames the “Biden-Harris Administration’s open border policies” for the death of her child. This same idea has long been promoted by Donald Trump, who accuses migrants of bringing crime and drugs into our country.
In reality, crime is down in the United States and migrants consistently commit fewer crimes than native-born Americans. Of course, statistics are cold comfort to anyone who has been victimized by “migrant crime.” But using Jocelyn’s death to justify further restrictions on asylum seekers would only compound the tragedy. That’s because our asylum system saves many lives each year. It also serves our national interests. (more…)
In response to record numbers of migrants arriving at our Southern border–2.2 million in FY2022–President Biden has announced some new rules designed to deter people from coming to our country to seek asylum. At the same time, these rules also open a new pathway for “up to 30,000 migrants from Venezuela, Nicaragua, Cuba and Haiti… to enter the United States on ‘parole’ each month if they have financial sponsors here and pass background checks.”
Today, we’ll discuss the import of these new rules. We’ll also look at how the rules might affect asylum seekers who currently have cases before the Asylum Office or Immigration Court. (more…)
The governors of Texas, Arizona, and Florida have been transporting asylum seekers from the border to “sanctuary” jurisdictions, such as Washington, DC, New York City, Chicago, and Martha’s Vineyard. Many of these migrants have suffered persecution in their home countries and have undergone difficult and dangerous journeys to reach the United States. The governors have enticed them to travel from the border to other parts of the country by falsely promising them jobs, work permits, and other benefits. In most cases, the receiving localities have not been forewarned about the new arrivals, and so have had difficulty coordinating a humanitarian response.
Immigration advocates have referred to these transfers as a “cynical political game,” a “publicity stunt” and a “political ploy.” Others have called it an effort to “own the libs.” While I agree that lying to vulnerable people and manipulating them is cruel and immoral, I think we on the Left are not being honest or wise when we dismiss the migrant transports as mere political theater. The issues underlying the governors’ efforts are serious and we ignore those issues at our peril. (more…)
This article is by Stanislav Stanskikh, a Visiting Scholar at the Fletcher School of Law and Diplomacy, Research Fellow at UNC-Chapel Hill, and founder of The New England Institute for Country Conditions Expertise. He may be reached here: stanskikh [at] countryconditions.expert
There is an ongoing debate about whether Russians fleeing political repressions and the military draft should be granted refuge in the United States and the West, or whether protection should be refused so that these potential refugees rebel against the Kremlin instead. Opponents also draw a line between “real” refugees and those who left Russia merely to save themselves despite their prior loyalty to the regime. While the Baltic countries and Poland are turning away new arrivals, Germany and some other EU members have extended their welcome by generously granting refugee status. The President of the European Council Charles Michel favors opening the EU to fleeing Russians.
With the escalating tension between the U.S. and Iran, DHS has been detaining Iranian Americans and Iranian nationals at the border and questioning them about their ties to Iran, their background, their family members, and their opinion about the Iranian government.
On the one hand, it’s perfectly reasonable to question people entering our country, particularly during wartime (and when was the last time we were not at war?). It’s also reasonable to apply additional scrutiny to people from “enemy nations.” And so, on one level, it makes sense to look more closely at Iranian Americans and Iranian nationals who are seeking entry into the United States.
On the other hand, it’s difficult to accept anything the Trump Administration does without feeling that there is an ulterior motive. At this point, we have been subject to so many lies, in the service of such bad policies, that nothing the Administration does can be viewed at face value. Is there any intelligence that indicates Iran is planning to retaliate by sending agents to our country? Is there any reason to suspect the particular people stopped and questioned at the border? Or does the Administration just want to scare us, in order to further justify its xenophobic policies? Or maybe to distract from the impeachment? There is no way to know, and when you can’t trust what your own government tells you, it is impossible to evaluate whether its actions are warranted.
Enrico Fermi (left) also invented the Photo Bomb.
In any event, here I want to talk about asylum during wartime. I suppose one response to war would be to shut down the border completely, block all nationals from the enemy country from coming to the U.S., and take measures against any of those nationals (or their decedents) living in the United States. We did the latter during the Second World War, when we detained Americans of Japanese decent. Notably, we did not detain Germans or Italians, even though we were also at war with those countries. But what about granting asylum to “enemy aliens” during wartime? Welcoming them to our country, even though we are at war with their homeland?
There certainly is precedent for giving refuge to “enemy aliens.” Probably the most famous examples are the scientists who fled fascism and anti-Semitism during the Second World War. People like Albert Einstein and Enrico Fermi found refuge in the United States and made important contributions to our efforts during the War (I’m not a fan of the Bomb, but I’m glad we got it before the Nazis). Another well-known example is the Cubans who fled Communism after Fidel Castro took power on their native island. For the past six decades, those same Cubans have been fierce opponents of the Castro regime. A third example is the Iranians who came to the United States after the 1979 revolution. While they generally oppose military intervention against their homeland, most Iranian Americans support democracy and human rights in Iran.
I encountered a less well-known example when I lived in Philadelphia in the mid-1990’s. I met an old man at my synagogue who had been a refugee during WWII. He was Jewish, born in Germany. During the 1930’s, he fled to Britain as a refugee. When the War started, he was detained as an enemy alien and shipped (by boat) to Australia. He was stuck down under for a while, until the Brits realized that he spoke German, and so they shipped him all the way back to England to serve in an intelligence unit. He assisted the Allies during the War, and then later immigrated to the United States.
Also, in my job, I meet people every day who are working to bring democracy and human rights to their countries of origin. Once they get their bearings in the U.S., many of my clients work directly or indirectly to assist the United States with diplomacy and national security. My client from Iran, for instance, is a computer expert who works to overcome censorship in his home country (and in other authoritarian countries), so people can access websites blocked by the government. Another client, from Afghanistan, organizes conferences, bringing high-level American and foreign experts together to discuss national security challenges. A third client advocates for democracy in Cambodia, and is regularly in contact with important U.S. government officials. And a number of my clients work for Voice of American (on and off the air), bringing news and promoting American values in their home countries. You get the point: Foreign nationals who have obtained refuge in the United States, often from hostile regimes, are working to advance U.S. interests and to educate U.S. decision-makers and the public, so we can better respond to national security challenges.
And herein lies the rub: How do we obtain the benefits of this expertise while minimizing the risk to our security? The answer, I think, is asylum. Remember, we do not offer asylum to just anyone who fears harm. Asylum is for people who face persecution on account of their race, religion, nationality, political opinion or particular social group. These “protected grounds” reflect our national values, and thus, asylum is basically set up to benefit people who will benefit us. Asylum seekers are also subject to rigorous security background checks. And so if the system is working properly, we will receive refugees from hostile regimes who will be well-vetted and will present minimal risk to our national security, and who are well-positioned to assist our country vis-a-vis their homelands.
Of course, when a conflict exists between our nation and another nation, we must exercise caution in dealing with citizens of the hostile power. We should use all the tools at our disposal to advance our interests and to keep ourselves safe. Asylum is one of those tools. Rather than discard the asylum system during wartime, we should use it as it was intended–to benefit those who support our values, and to benefit ourselves.
If you go to the White House’s official website, you will see this article: “What You Need To Know About The Violent Animals Of MS-13.” The article claims that the “violent animals of MS-13 have committed heinous, violent attacks in communities across America.” Indeed, the two-page article uses the term “animal” in reference to MS-13 gang members a total of 10 times. What to make of this?
The path of dehumanization always ends at the same place.
On the one hand, there is no doubt that MS-13 is a violent, criminal gang, that causes great misery in many communities, especially in Central America, but also in the U.S. I’ve met and represented many individuals who were victims of this gang. My clients have been attacked by machetes, shot, raped, threatened, and had family members murdered. For victims of MS-13, no language can adequately express their disgust and anger towards the gang.
But here, we are not talking about victims. We are also not talking about over-heated pundits on cable news. We are talking about the United States government. And when the United States government, and our President, refers to people–even criminals–as “animals” that is not simply hyperbole. It is a dangerous step towards fascism and genocide. And I do not mean this in any metaphorical or rhetorical way. Dehumanizing people–even bad people–has historically been a first step towards mass murder.
President Trump’s characterization of MS-13 gang members as “animals” reminds me of the Rwandan government’s rhetoric prior to the 1994 genocide. Tutsis were referred to as “cockroaches.” At the time, Rwanda was involved in a civil war, which pitted the Hutu-majority government against the Tutsi-majority rebels. The Rwandan government had reasons to speak ill of Tutsi rebels, and certainly those rebels were no angels. However, the demonization and dehumanization of the enemy went well beyond the rebel soldiers–it extended to all Tutsis.
In the same vein, perhaps the strong language against MS-13 can be justified. After all, many gang members have committed vicious crimes. But just as rhetoric against Tutsi rebels ultimately harmed innocent Tutsi civilians, the impact of the President’s words will stretch well beyond members of the MS-13 gang. Here’s more from the White House website—
Recent investigations have revealed MS-13 gang leaders based in El Salvador have been sending representatives into the United States illegally to connect the leaders with local gang members. These foreign-based gang leaders direct local members to become even more violent in an effort to control more territory
So does this mean that all people from El Salvador are suspect? Are they all “animals”? And when we are selecting people for dehumanization, how do we know where to stop? How do we know who is actually a member of the gang? What about people forced into the gang who are trying to escape, or people who simply look like gang members (whatever that means), or former gang members? Where is the due process in the dehumanization?
And if you think that mere words are not dangerous, or they can be dismissed as “Trump being Trump,” let’s remember how the Nazis engineered the mass killing of millions of Jews and other “undesirables” during World War II. From the U.S. Holocaust Memorial Museum—
Exploiting pre-existing images and stereotypes, Nazi propagandists portrayed Jews as an “alien race” that fed off the host nation, poisoned its culture, seized its economy, and enslaved its workers and farmers. This hateful depiction, although neither new nor unique to the Nazi Party, became a state-supported image
The Nazis portrayed the Jews as a threat to the Fatherland. Jews were not people; they were aliens. There was even “evidence” for the threat: Some Jews were wealthy; others were Marxist. These vile stereotypes existed long before the Nazis, but when they were adopted by the German government, they led to genocide.
In our own time, many commentators and activists have been dehumanizing non-citizens. These modern-day blood libels have always been disgusting and disgraceful. But when the President and the U.S. government get into the act, it raises the danger to a whole new level. And we are seeing that play out now, most recently in the government’s decision to rip apart parents and children who arrive at the border seeking asylum (in many case from–ironically–MS-13). Could we tear families apart and separate children from their parents if we viewed these people as human beings? This is dehumanization in action, and the harm it will cause is very real.
Let’s not mince words about what is happening here. The White House, the President of the United States, and the U.S. government are referring to human beings as “animals.” And when governments negate the humanity of people–even people deemed undesirable–it puts us on a path where the only destination is death. All of us have a responsibility to bring back humanity and decency to our country. Let us resolve to do what we can before it is too late.
In his book, American Homicide, Professor Randolph Roth of Ohio State University argues that homicide rates correlate closely with four distinct phenomena: political instability; a loss of government legitimacy; a loss of fellow-feeling among members of society caused by racial, religious, or political antagonism; and a loss of faith in the social hierarchy. He examines 400 years of American history and concludes that these four factors best explain why homicide rates have gone up and down in the United States and in other Western countries, and why the United States today has the highest homicide rate among affluent nations.
“Don’t make me angry. You wouldn’t like me when I’m angry.”
Prof. Roth recently elaborated on his theories in the Washington Post. He writes–
When we lose faith in our government and political leaders, when we lack a sense of kinship with others, when we feel we just can’t get a fair shake, it affects the confidence with which we go about our lives. Small disagreements, indignities and disappointments that we might otherwise brush off may enrage us — generating hostile, defensive and predatory emotions — and in some cases give way to violence.
He goes on to detail the varying homicide rates for different communities within the U.S., and how those homicide rates track with the particular community’s faith in our governing institutions–
The homicide rate peaked for African Americans during the Nixon administration, at 43 per 100,000 persons per year, when their trust in government was at its lowest and their feelings of alienation were highest. And it peaked for white Americans in 1980, at 7 per 100,000 persons annually, when accumulated anger over busing, welfare, affirmative action, defeat in Vietnam and humiliation in Iran boiled over into the Reagan revolution.
During the 2008 election, Prof. Roth predicted that “the homicide rate in America’s cities would drop because of what [Barak Obama’s] candidacy would mean to African Americans and other minorities, who live disproportionately in urban areas.” Prof. Roth also “worried that the homicide rate would rise in the areas of the country most resistant to the idea of an African American president.” Data from President Obama’s time as president now seems to support the Professor’s prediction (at least according to Prof. Roth–and I believe him).
So what does this mean for immigrants and asylum seekers?
Maybe the answer is fairly obvious–If we demonize and disenfranchise non-citizens, we increase the likelihood that they will engage in violent behavior, and perhaps other anti-social or criminal conduct as well. And of course, this is a vicious cycle–the more we alienate such people, the more likely they are to engage in bad behavior, and the more they engage in bad behavior, the more we will alienate them.
We also have to remember who we are talking about. Many aliens already feel, well, alienated. Many asylum seekers and refugees have already suffered trauma and feel insecure and victimized. Adding to that sense of alienation by labeling them terrorists or rapists, and by treating them as criminals, will only increase the likelihood of anti-social behavior in this population.
Prof. Roth, writing after the massacre in Las Vegas, notes that “most mass murderers have been deeply affected by the distrust, disillusionment and enmity that pervade our society…. We have all played a part in creating them.”
If the violent outliers of our society in some ways reflect who we are, then the obvious solution is for us to do better. To be more civil, more inclusive, more compassionate. To disagree respectfully. To listen more and talk less. Frankly, it’s not all that difficult. It’s what teachers teach in our schools every day. It’s what we require in our workplaces. It’s what we see in our places of worship.
Unfortunately, it is not what we have in the immigration debate. Read the comments section of any news article about immigration and you’ll see what I mean. Politicians–most notably our Commander-in-Chief–have taken the visceral feelings about immigration and amplified them. This creates its own vicious cycle, and empowers extremists groups, like we saw in Charlottesville.
Prof. Roth’s work (and common sense) suggests that if you keep hammering away at vulnerable people, a few of them will eventually react negatively. Hopefully, this will not take the form of violent behavior, but the likelihood of a problem seems greater in such a toxic and threatening environment.
I do think there are things that ordinary people can do to help. Many individuals and organizations have been working to support immigrants, Dreamers, Muslims, and other targets of xenophobia. Giving people hope, and showing them that they are not alone, can mitigate the damage. Government attorneys, Immigration Judges, Asylum Officers and USCIS Officers who continue to do their jobs, and who enforce the law fairly and treat non-citizens with respect, also help counter the harm caused by haters.
Most research suggests that immigrants commit fewer crimes than native-born Americans, but if Prof. Roth’s theory is correct, the current Administration’s nativist language and policies might help cause an uptick in criminal behavior in our immigrant communities. And of course, if immigrant crime goes up, the Administration can use the increase to justify its anti-immigrant policies. It’s up to us–those of us who stand with immigrants–to continue offering them help and hope, and to try to break this cycle before it begins.
As you might have heard, the White House recently issued a new travel ban (official known as the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and this one looks more likely to survive a court challenge than previous bans. This time around, the “banned” countries are Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and certain government officials from Venezuela.
Moose limb ban.
Here I want to look at how the ban will impact asylum seekers, asylees (people who already have asylum), and I-730 petitions, which are petitions filed by asylees to bring their relatives (spouse and minor, unmarried children) to the United States. One caveat: Even though the latest travel ban seems more well-crafted than prior iterations, it likely will still be subject to court challenges, and it will have to be interpreted and implemented by various government agencies, so how individuals will actually be affected is not yet entirely clear. With that out of the way, here’s how things look now:
Asylum Seekers
The short answer here is that asylum seekers who are already in the U.S. should not be affected by the new ban. Section 6(e) provides–
Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.
Also, it appears that asylum seekers who want to travel while their cases are pending, using Advance Parole, should be able to do so. Section 3(b) states–
The suspension of entry pursuant to section 2 of this proclamation shall not apply to… any foreign national who has a document other than a visa — such as a transportation letter, an appropriate boarding foil, or an advance parole document — valid on the applicable effective date under section 7 of this proclamation [all bars will be in effect by October 18, 2017] or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission.
The original travel ban (from January 2017) was intended to impact asylum seekers. Basically, USCIS was directed to adjudicate their cases up until the decision, but to hold the decision until the ban was lifted. That never actually went into effect. This new ban, which is more carefully tailored, does not seem to impose any restrictions or limitations on the asylum process or on asylum seekers, and so we can expect that such cases will proceed as before.
Asylees
People who have been granted asylum are asylees. I see nothing in the proclamation that would inhibit asylees’ rights in the U.S. They should be able to work, travel (using an appropriate travel document), and eventually get their green card and their U.S. citizenship as before.
I-730 Petitions
When a person is granted asylum, she can file to bring her spouse and minor, unmarried children to the United States using a form I-730. Whether people from the banned countries will still be able to bring their “following to join” family members here may be problematic, at least as I read the President’s order. Section 3(a) states–
[S]uspensions of and limitations on entry… shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the applicable effective date under section 7 of this proclamation; (ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and (iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation [certain individuals whose visas were marked revoked or canceled by the first travel ban].
Basically, this means that people outside the U.S. from a “banned” country cannot get a visa to come here. There are some exceptions to this rule in section 3(b), but none of them seem to apply to I-730 beneficiaries. The closest I can see to an exception for following-to-join asylees appears in section 3(b)(vi)–
The suspension of entry pursuant to section 2 of this proclamation shall not apply to… any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Perhaps I-730 beneficiaries can argue that they fall within this exception, but frankly, I don’t see it. If these beneficiaries do not meet an exception, they can apply for a waiver to allow them to join their asylee relative in the U.S., even though they are banned from coming here. The waiver process, discussed in section 6(c), seems complex, but the short answer is that waivers are granted in the discretion of the consular officer or other government official and are issued on a case-by-case basis. Further–
A waiver may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the national security or public safety of the United States; and (C) entry would be in the national interest.
The proclamation gives some examples of when a waiver might be appropriate, including where the “foreign national has previously established significant contacts with the United States” or where “the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship.” None of the examples specifically refers to asylees or I-730 beneficiaries, and so there is an open question about whether such people are able to join their asylee family members in the United States.
We will have to see how the Trump Administration implements the ban with regards to I-730s. Hopefully, such people will be allowed to join their family members in the U.S. If not, you can bet that the matter will be litigated in court, and I imagine that the asylees would have a strong case. The United States has ratified the Protocol on the Status of Refugees, and so that treaty has the force and effect of law. The Protocol (and the Refugee Convention that is incorporated into the Protocol) essentially commits treaty countries to ensure family unity for refugees. See also INA 208(b). A Presidential proclamation cannot nullify this law, and so any attempt by the Trump Administration to block following-to-join relatives will likely not succeed, though of course the Administration can throw obstacles in the way of such people and cause plenty of hardship, stress, and uncertainty for this already-vulnerable group of individuals.
So there you have it. Again, we will have to wait to see how the new ban is implemented and whether it will be affected by litigation. Hopefully, my concerns about I-730 beneficiaries will not come to pass, and asylum seekers, asylees, and their family members will not be harmed by the latest travel ban.
UPDATE – October 9, 2017 – The U.S. State Department has issued guidance indicating that I-730 beneficiaries will not be affected by the new proclamation, and so following-to-join beneficiaries will still be able to join their asylee family members in the United States. Thank you to “Jabi” for letting us know about the good news.
Late last month, the U.S. Supreme Court issued a decision allowing the Trump Administration to begin enforcing its travel ban against all refugees and against individuals from six “banned” countries–Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Travel Ban Redux, or Once More Into the Breach (of Decorum), Dear Friends
Since the Court’s decision is (to put it kindly) a little vague, it was initially unclear how exactly the Administration would enforce its executive order (“EO”). Now, the Department of Homeland Security and the State Department have issued some guidance, and so we have a better idea about the effects of the EO. Of course, given that the Supreme Court’s decision is subject to interpretation, we can expect more litigation in the weeks and months ahead, but for today, I want to discuss how the EO will likely be enforced with regards to asylum seekers, asylees, and refugees.
Asylum Seekers: Asylum seekers are people who are physically present in the United States and who have a pending asylum case. The short answer for asylum seekers from banned countries is that the EO has essentially no effect on your case (the longer answer is here). Cases will move forward and be adjudicated as before (i.e., slowly). I should note that since the beginning of the Trump Administration, we have had several cases approved, including cases from Muslim countries and banned countries.
Asylees and Refugees Who Have Already Been Resettled in the United States: Asylees are people who have been granted asylum by the U.S. government. Refugees in this section refers to people approved for refugee status overseas who have already been resettled in the United States. According to a DHS FAQ sheet (question # 11):
Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excluded from this Executive Order. As such, they may continue to travel abroad and return to the United States consistent with existing requirements.
This means that if you already received asylum, or if you were already resettled in the U.S. as a refugee, you can travel outside the U.S. and return, and the EO does not affect you. However, if you are from one of the “banned” countries, it is a good idea to keep an eye on the news to make sure there are no future changes that might affect your ability to return (one helpful website is the American Immigration Council).
Also, according to DHS (question # 22), people who received a green card based on asylee or refugee status are not affected by the EO.
Asylees and refugees can file for their family members (spouses and minor, unmarried children) to come to the United States, and the EO does not block those family members from coming here. According to DHS (question # 34), “Family members planning to join refugees or asylees are only approved for travel if a bona fide relationship to a spouse or parent in the United States exists. Therefore, if the relationship were confirmed, the travel suspension would not apply.” (see also question # 36). So asylees who have filed I-730 petitions should not be prevented from reuniting with their family members in the U.S.
Refugees Who Are Waiting to Come to the U.S. for the First Time: It is important to note that all refugees, even people from countries that are not banned, are affected by the EO. According to DHS (question # 31), “Under the Executive Order as limited by the Supreme Court’s decision, any refugee, regardless of nationality, is prevented from admission to the United States unless he or she (1) demonstrates a bona fide relationship with a person or entity in the United States or (2) obtains a national interest waiver from the Department of State or CBP [Customs and Border Protection].”
The EO blocks admission of all refugees (other than those who meet an exception to the rule) for 120 days. According to the U.S. State Department, there are exceptions for “those refugees who are in transit and booked for travel,” though these people will likely all be in the U.S. by now.
According to DHS (question # 29), refugees can still come to the U.S. if they have a “close” family relationship with someone already here. DHS interprets this to mean:
[A] parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.
Certainly we can expect this interpretation to be the subject of litigation. Why is a half-sibling a close relative, but a grandparent is not?
Also, a refugee with a bona fide relationship to an “entity” in the United States is still eligible to travel here, but what this means is also unclear. According to a senior official at the State Department:
As regards relationships with entities in the United States, these need to be formal, documented, and formed in the ordinary course of events rather than to evade the executive order itself. Importantly, I want to add that the fact that a resettlement agency in the United States has provided a formal assurance for refugees seeking admission is not sufficient, in and of itself, to establish a bona fide relationship under the ruling. We’re going to provide additional information to the field on this.
I expect we will see litigation on this point as well. Litigation means delay, and so the likely effect of the EO on refugees will be to greatly reduce the number of people coming to the United States.
Blocking refugees from resettling in the U.S. has been a goal of the Trump Administration since the beginning, and it is one reason why Mr. Trump was elected in the first place. So, like it or not (and obviously, I don’t), this is what democracy looks like. But of course the result is that innocent people will die, and it is all the more reason for those of us who support our refugee program to try to convince the general public on this point, to work with our representatives in Congress, and to litigate in court.
The EO’s impact on nationals of the six banned countries and on all refugees is temporary, at least for now. The Supreme Court will take up the merits of the EO this fall, and the President may issue new EOs (and Congress may pass laws that impact immigration). In essence, all this is a moving target, and so asylees, asylum seekers, and refugees need to keep abreast of any changes. We also have to keep working hard, in order to protect victims of persecution and to defend our nation’s values, which these days seem in grave jeopardy.
Seventy-five years ago this week, Fred Korematsu was arrested on a street corner in San Leandro, California. His crime: Failing to report to an internment center for Japanese immigrants and Americans of Japanese decent who were detained en masse once the United States entered World War II.
Fred Korematsu and the Presidential Medal of Freedom.
After three months in pre-trial detention (he wasn’t released even though he posted bail), Mr. Korematsu was convicted in federal court for violating the military relocation order, sentenced to five months’ probation, and sent to an internment camp where he lived in a horse stall. He later said, “Jail was better than this.” Over 100,000 Japanese Americans were confined to such camps during the course of the war because the government feared they were disloyal (German- and Italian-Americans were not subject to such treatment).
The American Civil Liberties Union (“ACLU”) represented Mr. Korematsu at trial and in his appeals. Eventually, the case reached the United States Supreme Court, which issued a 6-3 decision upholding the conviction as justified due to the circumstances of “direst emergency and peril.”
Over time, the Supreme Court’s decision—and the internment of Japanese Americans—came to be viewed as a great injustice. President Ford issued a proclamation apologizing for the internment. A commission established by President Carter concluded that the decision to remove those of Japanese ancestry to prison camps occurred because of “race prejudice, war hysteria, and a failure of political leadership.” And President Reagan signed a bill providing compensation to surviving internment camp residents. In 1998, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom, stating:
In the long history of our country’s constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy, Brown, Parks… to that distinguished list, today we add the name of Fred Korematsu.
Mr. Korematsu himself remained active in civil rights until his death in 2005. After the September 11, 2001 terrorist attacks, he spoke out about how the United States government should not let the same thing happen to people of Middle-Eastern descent as happened to Japanese Americans during WWII. He also filed amicus (friend of the court) briefs in several cases involving lengthy detention of suspects at Guantanamo Bay.
With the Trump Administration’s attempted crackdown on Muslim immigrants, Korematsu v. United States is again in the news. A few (misguided) individuals have suggested that Korematsu provides precedent for the President’s crackdown on Muslims (though it seems highly doubtful that any modern court would rely on Korematsu for precedent). Others view the case as a cautionary tale: We should not abandon our ideals in the face of a perceived threat.
But there is another lesson from Korematsu; a lesson that has received surprisingly little attention in our “post truth” age: The U.S. government, including the Solicitor General who argued the case, Charles Fahy, knowingly lied to the Supreme Court about the alleged threat posed by Japanese Americans during the war, and those lies very likely influenced the outcome of the case.
The government’s mendacity came to light in the early 1980’s when Peter Irons, a law professor writing a book about the internment camps, discovered that the Solicitor General had deliberately suppressed reports from the FBI and military intelligence which concluded that Japanese-American citizens posed no security risk. The documents revealed that the military had lied to the Supreme Court, and that government lawyers had willingly made false arguments.
As a result of these discoveries, a District Court in San Francisco formally vacated Mr. Korematsu’s conviction on November 10, 1983–more than 40 years after he was found guilty. Mr. Korematsu told the Judge, “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed, or color.” He continued, “If anyone should do any pardoning, I should be the one pardoning the government for what they did to the Japanese-American people.”
By the time the [case of] Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”
[The District Judge that overturned Mr. Korematsu’s conviction] thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.
And so, the U.S. government recognized that its lies did real damage. Over 100,000 Japanese Americans were uprooted from their homes and lives, confined to camps, and excluded from American society. In addition, our country lost the benefit of those citizens’ contributions—to our nation and to the war effort.
Yet here we are again. Refugees—particularly Muslim refugees—are painted as a threat to our security. The President says they are a “Trojan Horse” for terrorists. Precious little evidence supports these claims. And much of that evidence has been discredited. Indeed, to me, it sounds a lot like “race prejudice, war hysteria, and a failure of political leadership,” with an emphasis on the latter.
Which all leads to the final point: Will the current Administration follow the lead of Solicitor General Fahy? If the evidence does not support its assertions about Muslim immigrants, will it suppress the truth? And how will judges respond? For now, it seems that our courts remain the only level-headed branch of government, and the only real bulwark against the bigotry and falsehoods peddled by our President. When the government ignores the evidence and makes policy decisions based on fantasy, it’s not just Muslims and immigrants who will suffer. Fred Korematsu is gone, but let’s hope his legacy is never forgotten.
Learn more about Fred Korematsu and his on-going story at the Korematsu Institute.
This article is by Josh Rigney, the Legal Services Program Manager at the Torture Abolition and Survivors Support Coalition International (TASSC). Josh has worked with survivors of torture seeking asylum since May 2012. He holds a Master’s in International Relations and a Juris Doctor from American University. He is a member of the Virginia State Bar. The opinions expressed in this article are his alone, and do not represent the opinions of TASSC.
Taking asylum policy advice from CIS is like taking urban planning advice from Godzilla.
On May 10, I attended a panel discussion organized by the Center for Immigration Studies (“CIS”) and titled Asylum Fraud and National Security. Described on the CIS website as a discussion on the threat posed by “the vetting – or the lack thereof” of asylum applicants in the U.S., the panel included three speakers who, at least on paper, appeared to have impressive expertise on immigration issues. Two of the speakers, Andrew Arthur and Mark Metcalf, formally served as immigration judges in Pennsylvania and Florida, respectively. The final panelist, Todd Bensman, is a long-time journalist with degrees in journalism and homeland security studies.
CIS’s tagline is “Low-immigration, Pro-immigrant,” and it bills itself as “an independent, non-partisan, non-profit, research organization.” However, CIS is reliably biased, and produces shoddy “research” prone to support any policy that will decrease all immigration to the United States, regardless of the heartless nature of the policy. For example, a recent Washington Post article quoted Executive Director Mark Krikorian speaking in favor of limiting immigration by breeding fear of U.S. immigration policies amongst potential immigrants. Krikorian stated that only if Trump follows through on the fear inspired by his pronouncements on immigration will CIS’s preferred immigration levels be realized.
As an immigration attorney who works with survivors of torture seeking asylum, turning the asylum process into a national security witch hunt would obviously impact those whom I serve. But that is not the only reason the panel’s viewpoints should matter to the broader asylum-seeker community and its supporters. As a recent New York Times article stressed, CIS – designated a hate group by the Southern Poverty Law Center – and other anti-immigrant hard-liners now have the ear of the White House and congressional policy makers on immigration.
The panelists stressed several points during the event. First, immigrants are a threat to the safety of the United States. Second, while refugees pose a danger, asylum seekers are an even greater threat to U.S. national security. Third, fraud is rampant among asylum seekers. Therefore, the panelists agreed that U.S. policymakers must make it harder for everyone to receive asylum, whether or not a particular individual has a legitimate claim.
Immigrants are Dangerous
To convince the small crowd at the event that all immigrants – asylum-seeking or otherwise – pose a threat to the safety of the United States, each panelist took turns describing his favorite scary immigrant story. Andrew Arthur spoke about Ramzi Yousef, one of the perpetrators of the first attack on the World Trade Center in New York City in 1993. Bensman spoke of Pakistanis with potential terrorist ties crossing the southern border with the help of a smuggler named Rakhi Gauchan. He stressed that Gauchan believed one of the Pakistanis was a terrorist, and Bensman stated that this person later received asylum.
Of course, relying on scattered anecdotes to draw broad conclusions about all asylum seekers does not make for sound policy. For example, Bensman did not mention whether he actually knew the Pakistani was a terrorist. Indeed, according to his own master’s thesis, American investigators never determined whether Gauchan’s terrorism suspicions were accurate.
As with any policy issue, harping on the inevitable few bad apples does not support throwing all of them out. Overall statistical trends must be analyzed, particularly when the goal is to punish an entire group of people, and particularly one as large as asylum seekers. In the first three months of 2017 alone, 40,899 people filed asylum claims with the Asylum Office. The handful of cases the panelists cited in their comments cannot justify making the asylum process more difficult for all of these people.
What Do the Numbers Tell Us?
A study published by the Cato Institute, an organization founded by one of the Republican mega-donor Koch brothers, determined that the chance that you will be killed by a foreign-born terrorist who is in the U.S. because of a grant of asylum is 1 in 2.7 billion. Between 1975 and 2015, over 700,000 people were granted asylum in the United States. Of those, just 4 have been “convicted of planning or committing a terrorist attack on U.S. soil…”
So what statistics did the expert panel use to support their assertion that all asylum seekers are dangerous? In the only notable mention of actual numbers, Mark Metcalf provided data released by EOIR on the number of immigrants with pending court cases who failed to show up in court for their hearings. However, at no point did he provide any breakdown of the numbers for asylum seekers; nor did he explain how failing to show up for a court hearing is equivalent to committing asylum fraud or posing a threat to U.S. national security.
One of the panelists, in a nod to those in the crowd who felt the U.S. is too generous to immigrants, mentioned that the U.S. “accepts more refugees than the rest of the world combined.” For the record, the U.S., a country of more than 325 million people, resettled 66,500 out of the 107,100 total refugees resettled by all countries in 2015. Canada, a country with a population of approximately 36 million people, resettled 20,000 refugees. Furthermore, Turkey (2.5 million), Pakistan (1.6 million), and Lebanon (1.1 million) all host over a million refugees each. For asylum seekers, the United States received only slightly more applications (172,700) than Sweden (156,400), a country of only 10 million people. Meanwhile, Germany (population of 81 million) received 441,900 asylum applications.
The point is that while the U.S. does offer refuge to a significant number of people fleeing persecution every year, that does not justify the draconian policy recommendations supported by the panelists.
Asylum Seekers vs. Refugees
I can actually agree with some of the panel’s comments comparing the relative threat posed by refugees against the threat posed by asylum seekers. Arthur stressed that the primary difference between refugees and asylum seekers is that refugees are fully vetted prior to ever setting foot in the United States. In contrast, asylum seekers make it to U.S. territory, then seek protection while waiting for their asylum claim to be granted or rejected. Depending on the court or asylum office with jurisdiction over the applicant’s claim, that process can take many years (one survivor from my organization recently received asylum after a ten-year struggle). During this time, asylum seekers remain in the United States without undergoing security checks like those that refugees must pass before entering.
Of course, none of this really matters unless you accept the idea that immigrants are truly a threat – which takes us back to the previous point. Yes, in theory, asylum seekers have the potential to pose a greater security threat than refugees – but that threat is already extremely low to begin with. In actuality, objective evidence that asylum seekers as a group are a threat to U.S. national security is weak at best.
For example, the panelists claimed again and again that fraud is rampant in the asylum system – relying, again, on a handful of selected stories. As evidence of potential security threats, they correctly pointed out that the Department of Homeland Security and the Department of Justice do not conduct regular system-wide fraud risk assessments. But without such assessments, how did the panelists conclude that fraud is rampant?
“Pro-immigrant”
At times, at least one panelist expressed sympathy for the plight of the tens of thousands of asylum seekers with legitimate claims. For example, Arthur correctly stated that each fraudulent asylum application filed by someone without a claim will cause further delay in the process for another asylum seeker with a legitimate claim. He also paid lip service to the reality that the United States is a nation built by immigrants. Overall, however, the panelists expressed support for several policies that would have a disastrous impact on all asylum applicants seeking safety in the U.S.
Arthur promoted the use of detention for asylum seekers, stating that the longer a person is detained, the less likely that person is to obtain asylum fraudulently. He failed to mention the devastating psychological repercussions detention will have for the thousands of torture and trauma survivors—many of whom are already suffering from PTSD—who would inevitably be thrown into such facilities.
Arthur also declared that any person that transits through another country on the way to the United States lacks true fear, but instead seeks economic opportunity. In response, Mark Krikorian, in the role of moderator, asked if the U.S. should categorically deny asylum to anyone that transited through another country. Arthur suggested that could be achieved through legislation to change the eligibility requirements for asylum.
Bensman suggested that only when we can guarantee the identity of people through unimpeachable ID documents should we allow them to seek asylum. But in reality, the lack of such documentation often stems from the chaos that forced asylum seekers to seek safety in the first place. In other words, his suggestion would bar those in greatest need of protection from accessing the asylum system at all.
Finally, all the panelists suggested that DHS and DOJ commit significant resources to assess the fraud risk in the asylum system.
Ignoring the Elephant in the Room
Notably absent from these policy recommendations was the hiring of additional Immigration Judges and Asylum Officers. Assuming, for the moment, that asylum seekers waiting in the asylum backlog are a threat to U.S. national security, I can’t help but wonder why the panelists never suggested the only solution that would make it easier for immigration officials to spot fraudulent asylum claims.
Mark Metcalf tacitly recognized this concept when he highlighted that good cross-examination, either by a prosecutor or an Immigration Judge, can expose fake asylum claims. The same principle holds for intelligent questioning by Asylum Officers in asylum interviews. With the current backlog of nearly 600,000 cases at the Immigration Courts, and another 250,000 claims before the Asylum Offices, each official responsible for testing the credibility of these claims is heavily overburdened. Relieving that burden by hiring more Immigration Judges and Asylum Officers will help these officials spot the fraudulent asylum claims that do cross their paths.
This solution can lessen the actual problem of immense backlogs and long waits for people seeking asylum. As an added bonus, it would simultaneously address the speculative and over-exaggerated threats that the panelists identified, without denying a path to safety for tens of thousands of people fleeing persecution.
On April 26, the Department of Homeland Security launched its new Victims of Immigration Crime Engagement (VOICE) office. According to DHS, VOICE will “assist victims of crimes committed by criminal aliens.” DHS Secretary John Kelly said in a statement, “All crime is terrible, but these victims are unique—and too often ignored. They are casualties of crimes that should never have taken place—because the people who victimized them often times should not have been in the country in the first place.” I suppose the same might be said of crimes committed by children born of unplanned pregnancies, but I digress.
Don’t mess with these ladies, especially if they haven’t had their nap.
The fact is, most credible reports show that immigrants commit crimes at a lower rate than U.S. citizens. But never mind that. Today, I am concerned with another group whose below-average crime rate masks its otherwise sinister nature. You guessed it, I’m talking about America’s grandmothers.
To shed light on this menace, I’ve decided to create a new website called VOGUE – Victims Of Grandmothers’ Unscrupulous Ethics. The website will track crimes committed by mommoms, babas, memoms, geemas, and savtas throughout our great country. And I’m not just talking about the Little Old Lady from Pasadena, though her reckless driving certainly terrified everyone on Colorado Boulevard. Rather, I want the public to know that America’s bubbies are a real threat to our society. So in the spirit of disproving statistics with anecdotes, I present to you the Top 5 nana-related crimes of recent memory. Be afraid. Be very afraid:
(1) In 2010, a 64-year old Long Island woman was arrested for stealing boxes of jello, replacing the contents with sand and salt, and then returning the boxes for a full refund (of $1.40 each!). According to authorities, Christine Clement disposed of the evidence by cooking up and eating the contents of the boxes she had emptied. Ms. Clement’s husband of 40 years served as her get-away driver.
(2) Griselda Blanco was a drug lord (drug lady?) from Colombia who relocated to Miami where she dominated the violent cocaine-trafficking scene in the 1970s and 1980s. She was supposedly responsible for over 200 murders, including the murder of at least one of her husbands. Ms. Blanco was finally deported to Colombia where she was assassinated at a butcher shop in 2012. Catherine Zeta-Jones is slated to play her in an upcoming movie called The Godmother (fittingly, Ms. Blanco’s youngest son is named Michael Corleone Blanco).
(3) Velma Barfield, also known as “Death Row Granny,” used arsenic as her weapon of choice. She confessed to killing four people, including her mother and a boyfriend. It seems likely she also killed at least one of her two husbands. In 1984, she became the first woman executed by lethal injection and the first woman in the United States executed since 1962.
(4) Another killer who preferred poison was Nannie Doss, known as the “Giggling Granny.” All together, she killed four husbands, two children, her two sisters, her mother, a grandson, and a mother-in-law. The first murders took place in the late 1920’s and the last occurred in 1953, when she killed her fifth husband by poisoning his sweet-potato pie (given my own feelings about sweet potatos, I am unlikely to die this way).
(5) Career criminal Doris Payne has been a jewel thief for more than six decades. Her most famous theft involved a $500,000.00, 10-carat diamond ring, which she stole from a jewelry store in Monte Carlo in the 1970’s. More recently, in 2015, she allegedly stole another diamond ring valued at $33,000.00 from a store in North Carolina (at age 84!). Her modus operandi is to pretend to be a well-to-do person looking to buy jewelry. She has the clerk take out various pieces, and then somehow causes the clerk to lose track of a piece or two, which she carries away.
So as you can see, America’s grannies are a notorious bunch. Whether they’re clandestinely replacing our jello with sand, murdering rival drug lords and annoying husbands, or walking away with large diamonds, they clearly represent a danger to us all. But hopefully, VOGUE will help. By shining a light on a few bad (Granny Smith) apples, we’ll soon have you convinced that the whole barrel is spoiled. At least that’s what they tell me at DHS.
Following the December 2, 2015 terrorist attack in San Bernardino, California, where the husband-and-wife perpetrators had purportedly become radicalized via the internet, Congress requested that the Department of Homeland Security (“DHS”) take steps to better investigate the social media accounts of immigrant applicants (the husband was an American-born U.S. citizen of Pakistani decent; his wife was a lawful permanent resident from Pakistan). In response, DHS established a task force and several pilot programs to expand social media screening of people seeking immigration benefits and U.S. visas. DHS also approved creation of a Social Media Center of Excellence, which would conduct social media background checks for the various DHS departments. The Center of Excellence would “set standards for social media use in relevant DHS operations while ensuring privacy and civil rights and civil liberties protections.”
The director of the Center of Excellence, Bill S. Preston, Esquire.
Last month, the DHS Office of Inspector General released a (clumsily) redacted report detailing the efficacy of DHS’s efforts and making suggestions. Due to the incomplete redaction job, it seems likely that the pilot program focused on refugees and perhaps asylum seekers, but the plan is to expand the program to cover all types of immigration benefits.
The goal of the pilot program was to help develop policies and processes for the standardized use of social media department-wide. “USCIS had previously used social media in a limited capacity, but had no experience using it as a large-scale screening tool.” The pilot program relied on manual and automated searches of social media accounts to “determine whether useful information for adjudicating refugee applications could be obtained.” It seems that the ability of DHS to investigate social media accounts was limited by technology: At the time the pilot program was launched in 2016, “neither the private sector nor the U.S. Government possessed the capabilities for large-scale social media screening.”
In one portion of the pilot program, applicants were asked to “voluntarily” give their social media user names. USCIS then “assessed identified accounts to determine whether the refugees were linked to derogatory social media information that could impact their eligibility for immigration benefits or admissibility into the United States.”
DHS has also been looking into social media, email, and other computer files of people entering or leaving the United States, including U.S. citizens, and this inquiry is far from voluntary. There have been numerous recent reports of DHS Customs and Border Protection (“CBP”) agents demanding passwords for cell phones and computers. The number of people subject to such searches increased significantly at the end of the Obama Administration, and seems to be further increasing under President Trump. Anecdotal evidence suggests that the large majority of people targeted for these searches are Muslim.
All this means that DHS may be looking at your accounts on Facebook, Twitter, LinkedIn, Instagram, etc. to determine whether you pose a threat and (possibly) to assess your credibility. They might also gain access to your email and other information stored on your computer or your cell phone. This data could then be used to evaluate your eligibility for immigration benefits, including asylum.
On the one hand, it seems reasonable that DHS would want to look into social media and other on-line material. After all, it is well-known that terrorists rely on the internet to spread their messages, and as DHS notes, “As the threat landscape changes, so does CBP.” Also, most immigration benefits are discretionary, meaning that even if you qualify for them, the U.S. government can deny them in the exercise of discretion. Therefore, if DHS “requests” certain information as part of the application process, and the applicant fails to provide it, DHS can deny the benefit as a matter of discretion.
On the other hand, the inter-connectivity of the on-line world could yield evidence of relationships that do not actually exists. For example, one study estimates that Facebook users (all 1.6 billion of them) are connected to each other by 3.57 degrees of separation. That means there are–on average–only 3.57 people between you and Osama bin Laden (assuming he still maintains his Facebook page). But of course, it is worse than that, since there are many terrorist suspects on Facebook, not just one (Osama bin Laden). So if you are from a terrorist-producing country, it’s likely that suspected terrorists are separated from you by less than 3.57 degrees of separation. Presumably, DHS would take these metrics into account when reviewing on-line data, but you can see the problem–your on-line profile may indicate you have a relationship with someone with whom you have no relationship at all.
So what can you do to protect yourself?
First, don’t be paranoid. It’s nothing new for DHS or other government agencies to search your on-line profile. Since everything posted on-line is, at least in a sense, public, you should be discrete about what you post, and you should be aware that anyone–including the U.S. government–could be reading it.
What’s more problematic is when CBP seizes electronic devices at the border and then reviews emails and other confidential information. This is extremely intrusive and an invasion of privacy. There is also an argument that it violates the Fourth Amendment right to be free of unlawful searches, but generally, people coming and gong from the U.S. have less protection than people in the interior (though I imagine that as CBP steps up the practice, we will see lawsuits that further define Fourth Amendment rights at the border). Knowing that you could be subject to such a search at least enables you to prepare yourself. Don’t travel with devices if you don’t want them searched. Be careful what you store on your devices and in the cloud.
Also, if you think you have problematic on-line relationships or derogatory on-line information, be prepared to explain yourself and present evidence if the issue comes up.
On-line information can affect an asylum or immigration case in more subtle ways. For example, if you state in your application that you attended a protest on a particular date, make sure you got the date correct–DHS may be able to find out the date of the protest, and if your account of events does not match the on-line information, it could affect your credibility. The same is true for more personal information. For instance, if your asylum application indicates you attended high school from 1984 to 1987, that should match any available information on the internet. Mostly, this simply requires that you take care to accurately complete your immigration forms, so that there are no inconsistencies with data available on-line.
Again, it’s not really news that DHS is reviewing social media and other on-line information. It does appear that such practices will become more common, but as long as applicants are aware of what is happening, they can prepare for it.
Earlier this week, President Trump issued a new Executive Order (“EO”) to replace one of his prior orders, which was largely blocked by the federal courts. The new EO, Protecting the Nation from Foreign Terrorist Entry into the United States, temporarily bans certain nationals of six majority-Muslim countries from entering the United States, suspends the U.S. refugee program for 120 days, and reduces the total number of refugees that the U.S. will resettle in FY 2017. Whether the new ban can withstand court scrutiny, and how it will ultimately effect who can come to our country, remains to be seen.
“My favorite four-letter word.”
For those foreigners already in the United States, the new ban has little legal effect. The immigration status of permanent residents, refugees, asylees, and asylum seekers remains essentially untouched. One possible exception is for family members of asylees and refugees who are hoping to come to the U.S. on a Refugee/Asylee Relative Petition (form I-730). Such relatives from the six “banned” nations–Iran, Libya, Somalia, Sudan, Syria, and Yemen–may be ineligible for a visa for a 90-day period. However, even this is unclear, as the EO provides a number of exceptions for nationals of banned countries, and such relatives may be entitled to an exception (depending on how you read the EO).
So for non-citizens in the U.S., including those from banned countries, the EO has almost no effect on their legal status here. That’s not to say that the EO has no effect–it certainly does. But that effect relates to the message the EO sends and the psychological damage it inflicts on Muslims and on non-citizens. Indeed, for this population, the effects of the anti-terrorism EO are similar to the effects of an actual terrorist attack in certain key ways.
Like a terrorist attack, the number of people directly impacted by the EO is much smaller than the number of people terrorized by it. The new EO is very narrowly tailored, so much so that it almost does not make sense. For example, the Administration claims that vetting for the six banned countries is insufficient. Yet the order allows nationals of those countries who already have visas to come to the United States. If there is a problem with the vetting, shouldn’t all the “improperly” vetted visas be revoked? Presumably, the Administration wants to avoid another humiliating defeat in court, but the limited scope of the EO seems to undercut the very rationale for its existence.
On the other hand, if the purpose of the EO is not really to block people from coming here, but rather to frighten people who are already here (Muslim Americans and non-citizens), the limited legal effect is less of a concern. As long as the order stands up in court–and even if it doesn’t–Mr. Trump has sent a strong message to the intended audience (really, there are two intended audiences: Mr. Trump’s supporters who want to see him fighting against “the others” and “the others” themselves, who feel targeted and excluded by the Administration’s policies). In this sense, the EO mirrors a classic terrorist tactic–limited impact (because you have insufficient resources to have a wider impact) with maximum effect (everyone in the targeted population is frightened).
And make no mistake, the EOs and the accompanying rhetoric are affecting their intended targets. Reports indicate that non-citizens and their children are under great stress due to President Trump’s words and policies. This stress can have harmful and life-long effects, especially on children. Muslims, including American citizens, have been subject to a barrage of bigoted statements from the President and his surrogates, and they are also suffering from similar types of stress. Some refugees are fleeing the United States, which they now view as unsafe, for Canada. So while the legal effect of the EOs may be small, the harm is very real, and very damaging.
Mr. Trump’s EOs are similar to terrorism in another important way: They help create a vicious cycle. Terrorists rarely have the power to conquer territory. Instead, the purpose of their attacks is to draw a response. Unless the response is careful and precise (a rarity), it can cause further alienation and anger, thus driving more people into the terrorists’ camp–a vicious cycle. In the case of the EOs, they help justify the narrative that groups like ISIS have been peddling (that the United States is at war with Islam). They also frighten and alienate people living in our country, particularly Muslims and non-citizens. Since alienated and frightened people are more likely to embrace extremism, the EOs are a type of self-fulfilling prophesy: EOs push people towards extremism, extremism justifies more EOs. It’s a vicious cycle analogous to the one created by terrorism.
Finally, the EOs do not exist in a vacuum. They are part of a larger campaign to demonize foreigners and Muslims. The whole effort of the Trump Administration towards such people is irresponsible and dangerous. It puts our country at greater risk by encouraging extremism and discouraging cooperation. But unfortunately, this Administration has proved again and again that it will not allow facts to get in the way of ideology, or sound policy advice to contradict prejudice. The new Executive Order is just the latest example of the misguided course our country is now taking. We are all less safe because of it.
