Here’s What Trump’s Immigration Order Says And How It Needs To Be Fixed
The Federalist - Monday January 30, 2017
by Lyman Stone
There are many strong feelings on many sides about President Trump’s executive order that adjusts U.S. policy towards refugees and visa processing from select countries. Sadly, very little of this commentary is informed by facts about either the EO itself, or about crisis migration policy in the United States generally.
Because of the administration’s excessive haste to act and media personalities’ haste to judge, reasonable discussion of American crisis migration policy has been all but snuffed out. Understanding U.S. policy towards crisis migrants is hard.
If you want sound-bites and one-liners, this article won’t be of much use to you, because it’s an effort to take a serious look and figure out what’s really going on in this EO. If you actually want to understand U.S. immigration policy, you’ve got to use some critical thinking, a practice all-too-rare when “the narrative” needs to be advanced on TV.
So, if you have the patience to understand what the EO actually means and the effects it may have, read on. I will go through all the major provisions of the EO one by one. We’ll skip the fluff in the first two sections, and start with the meaty bit, Section 3.
Section 3: The Visa Ban
The media has focused on the blanket ban on all visas for all people (except diplomats) with citizenship from Iran, Iraq, Libya, Syria, Sudan, Somalia, and Yemen. This means no tourists, no students, no immigrants, no refugees, no nothing. The EO does include permission for Customs to give “case-by-case” exceptions, but there do not appear to have been many exceptions yet (I could find only one documented case), and no guidance was given to Customs about what rules to use for making such exceptions.
The ban is not permanent, lasting only 90 days, but, as with the refugee ban, can be renewed or extended. Indeed, Section 3(e) of the EO actually orders the Department of Homeland Security (DHS) to come up with a list of countries for a more permanent ban. So this EO is teeing up for a more permanent ban in the future.
Some critics have claimed this EO is a “Muslim ban.” That’s debatable. The countries selected were based on a list provided by the Obama administration, and the Obama administration had already imposed stricter visa screening requirements on those countries.
However, former New York City mayor Rudy Giuliani has claimed that President Trump did explicitly say he wanted to ban Muslims. Yet most Muslims will be unaffected. The vast majority of Muslims and Muslim countries are in Africa, South Asia, Southeast Asia, or Central Asia. Within the Middle East, large countries like Egypt, Turkey, and Saudi Arabia were not restricted.
Some EO supporters have claimed the seven banned nations were selected due to a unique terrorist threat. This is not quite true. The Obama administration did identify them as places of concern, and most do have active sectarian conflicts and terrorist activity, but, the truth is, they have no common thread. Many unstable or violent places were not included (Chad, Central African Republic, Mali, Egypt, Ukraine, Nigeria, etc). Several of these even involve similar large-scale jihadist insurgencies similar to those observed in the banned countries. Iran, meanwhile, has no violent insurgency at all.
Furthermore, no terrorist attack in this millennium in the United States has been perpetrated by any citizen of the seven banned countries. Of course, this doesn’t mean, in the absence of a ban, no attack would occur in the future, but these countries have not posed a unique risk in the past. Additionally, countries whose citizens have perpetrated attacks, like Pakistan or Saudi Arabia, were not banned.
EO critics have claimed these countries were selected to avoid Trump’s properties, implicitly rewarding countries for doing business with the Trump Organization. This view is likewise hard to support with facts. Many countries with no presence of the Trump organization but with violent insurgencies were not banned, like Chad or South Sudan. Many Muslim countries with no Trump properties were not banned, like Afghanistan or Oman.
The truth is, there is no single rational factor that correlates with the seven banned countries. They do not share close religious similarities (Iran, Yemen, and Iraq have large Shi’a populations; Syria is largely Alawi and Sunni; Libya and Somalia are heavily Sunni). They do not all have insurgencies. Their governments are not all enemies of the United States; some, like Iraq, are even our close wartime allies!
Section 3(g): Rules for Exceptions
Aside from arbitrary countries, the EO was poorly administered. It became effective almost immediately upon issuance, giving Customs no time to develop rules and practices or train personnel. It impacted even people who boarded planes before the president declared it.
Plus, it was unclear who should be banned. What if a person served as a U.S. military translator in Iraq? Is he or she banned? Thus far, the answer is yes. What if they have dual citizenship between the United Kingdom and Syria? Banned too! What about foreigners who are lawful permanent residents of the United States? They were initially banned as well, but DHS has since announced they will be allowed in. It is unclear if the White House supports this change.
It is reasonable for the administration to restrict admission of people from countries of unique concern. The president has the power to do this. Both President Bush and President Obama used this power in moments of crisis to ensure national security. But that power must be exercised wisely: government agencies need clear guidance, not “case-by-case” exceptions with no rules about who gets in and who doesn’t. They need time to prepare implementation, and we need a consistent policy, not one that waffles every few hours as the protests and judicial orders ebb and flow.
Section 4: Vetting
Much has been made of the need for more vetting, and I agree with that need. However, few commentators have taken the time to review the proposed vetting changes. The central change proposed is the creation of a national identity database for immigrants that tracks documents, helps identify document fraud or forgeries, and that allows diverse federal agencies to collaborate.
Such an individual level identity-verification database would indeed be highly useful, and is certainly legal. It might not find many terrorists, but it probably will find lots of visa fraud, which is a serious problem worth fixing. However, some immigrants do go on to become citizens. Large national databases of personal information about citizens should raise red flags for conservatives. Thus we will need rules about how this database is to be used and developed.
Section 5: Large Changes to U.S. Refugee Policy
The executive order makes many major changes to refugee policy. Section A halts all new refugee arrivals for 120 days, pending implementation of improved vetting procedures. Section B orders the State Department to prioritize religious minorities when refugee admissions begin again. Section C indefinitely excludes all Syrian refugees, even after the 120-day pause ends. Section D reduces the total, maximum refugee arrivals from 110,000 to 50,00. For reference, the typical cap has between 60,000 and 80,000, but President Obama raised it to 110,000. Section E creates another “case-by-case” exemption, that State and DHS may admit unique individuals, or those already in transit to the United States. This is a lot to unpack, but I’ll try to do it quickly.
What Is a Refugee?
But before we can discuss this order, we should make sure we know what a refugee is.
I have extensively discussed that here in the past. Currently, European states are inundated with crisis migrants from Africa and the Middle East who have arrived by foot, car, boat, and plane, demanding the recognition of rights assigned to them by international treaties to which all developed nations are party.
These un-vetted crisis migrants arrive without warning, in disorganized fashion, and claim a right called “asylum,” or “asylee status.” To put it bluntly, asylum is a kind of illegal immigration with special human rights claims.
The United States traditionally does not accept a large number of asylees. Indeed, the most we ever accepted was 39,000 in 2001, while refugee admissions have usually been around 60,000 to 100,000 per year, except right after 9/11.
There’s a reason the U.S. has always preferred refugee resettlement over asylum-seekers: as Europe is discovering, asylum-seekers housed outside of refugee camps in large numbers can overwhelm administrative bureaucracies and may prove nearly impossible for security services to police. Europe’s problems with millions of asylees are serious, difficult to solve, and, thankfully, are distinctly European problems. The United States does not face even remotely similar challenges with crisis migrants.
“Refugees” such as those the EO discusses are crisis migrants who flee to a designated UN-monitored refugee camp. They remain in that camp or its environs, and do not proceed to a third country and seek long-term residence. They receive UN-provided aid, and generally must prove they are innocent people disrupted by war rather than combatants.
After a refugee has been in a camp, registered with the United Nations, and proved basic identity, they can try to prove that returning home is impossible, and express a desire to be permanently resettled abroad.
To be clear, asylees do not forswear their former homes: refugees essentially do. They are announcing to friends and family alike that their old life is done, a new one must begin. After clearing a round of UN-vetting, they are “submitted” for resettlement. Partner countries, mostly the United States, can then receive them for resettlement, after further rounds of vetting. This process can take anywhere from 6 months to 10 years, with one to three years being fairly normal.
The vetting process is thorough, but imperfect. While rates of crime and terrorism are lower for refugees than for asylees, and lower than rates for native-born U.S. citizens, they are not strictly zero if we include the second generation. However, the most successful crisis-migrant-associated terrorist attacks in the United States, like the Boston bombing, were carried out by individuals who arrived via asylum, or whose parents arrived that way, not, apparently, true refugee status.
The same rule holds for European terrorism: most crisis-migrant-associated attacks have been carried out by asylees, not resettled refugees! This is not surprising given that refugees are extensively vetted, while asylees are not. Again, the European experience is unlike the issue we face in the United States.
Section 5(a) and 5(d): How Cap-and-Pause Works
Now that we know what a refugee is, we can explore the changes made. Let’s start with the cap-and-pause issue. Administrative barriers, lack of suitable applicants, or policy factors mean that the United States usually undershoots its refugee cap. As a result, a 50,000 refugee cap means there will be fewer than 50,000 refugees admitted; 50,000 is the maximum legal amount, not an actual target. Regarding the 120-day halt to admissions that applies to all refugees, it is unclear why the Trump administration chose to block all countries, instead of just those from the specified visa-ban countries.
Additionally, that’s 50,000 admissions for Fiscal Year 2017, which ends in September 2017. From October to January 2017, 32,000 refugees have already been admitted in FY2017. All interviews and admissions are paused until late May. It is unlikely the State Department can vet 18,000 refugees and get them moved between late May and late September, especially if the new vetting process is made more intensive.
As such, this cap-and-pause strategy is a subtle way of ensuring that probably substantially less than 50,000 refugees will be resettled in FY 2017. This is especially likely if the 120-day pause is extended. For reference, the only time the United States has had such low refugee admissions is the period immediately after 9/11.
Section5(b): The Religious Minority Preference
President Trump has stated that the goal of prioritizing persecuted minorities is to implicitly prioritize Christians facing persecution in the Middle East. However, while that may be the intention, that is not what the text says. It says minority religions experiencing persecution shall be prioritized; Christianity is not mentioned.
This matters, because U.S. and international law already establishes religious persecution as a valid consideration in granting refugee status. Persecutors are to be denied refugee status, while their victims are categorically eligible. The president’s order to prioritize minority religions is not out of line with, say, President Obama prioritizing refugees from Syria.
Many presidents have opted to prioritize certain specific concerns at specific times. Admitting only Christians could create legal problems, but if the rule includes Muslims when they are a minority, as in Burma, or Yazidis in Iraq, then it is likely compliant with existing law. Legal or not, however, this prioritization will fail in its stated goal of protecting vulnerable minorities.
Most refugees do not come from Syria, Iraq, or the other countries the Trump administration has specified. In 2016, 43,000 refugees were admitted from the seven Muslim-majority countries for which additional visa restrictions were announced. Fifty-four thousand came from other countries. In other words, the majority of refugees being denied entry aren’t even from high-risk countries.
Of the 43,000 from the visa-ban countries in 2016, 7,000 were non-Muslims who could face serious difficulties if they remain in Muslim-dominated refugee camps. In other words, Muslims coming from these high-risk countries amounted to about 36,000 people.
But keep in mind that the United States admitted a total of 52,000 non-Muslim refugees in 2016. This means that even if the administration did manage to hit their 50,000 refugee cap (unlikely), and even if there were not a single Muslim in that crowd, there would still be 2,000 fewer non-Muslim refugees! No matter how you cut the numbers, the religious minorities this EO purports to help come out worse off.
We have no explanation for why a Seventh Day Adventist from the Congo or a Pentecostal from Ukraine is viewed as a security threat. There is no rationale whatsoever for denying these people entry. I’ve been to a Ukrainian Pentecostal church. Although I’m a Lutheran and thus tend to be on the stodgy side of things, I assure you, they’re swell folks!
Section 5(c) and 5(e): Little Protection For Syrian Religious Minorities
Section 5(c) states that, even after the 120-day halt to refugee admissions, we still won’t accept Syrian refugees. Consider that for a moment. If the goal is to protect religious minorities subject to persecution, then why would the EO create an enduring ban on all refugees from the country with the most active persecutions?
Some have suggested that section 5(e) offers an outlet. This section does give case-by-case discretion to State and DHS. However, section 5(e) also empowered State and DHS to grant exemptions for refugees we have already admitted who are in transit to the United States: in fact, exemptions have not been granted for those refugees!
Refugees have been stopped at airports, despite explicit orders here saying that in-transit refugees do not have to be stopped. In sum, there is little reason to believe this unexplained case-by-case exemption authority will actually be used to allow in religious minorities. In practice, Section 5(c) is an abandonment of Syrian religious minorities.
Section 7: Biometric Tracking
Again, most media coverage has ignored this provision. The United States has been trying to implement full biometric entry-exit tracking for all people for years now, and the project has taken a while to complete. This EO is ordering DHS to double down and get the job done, which could indeed help improve the security at airports. Getting this system finished would be a real benefit for all Americans and for the world.
Section 8 and 9: Making Travel Harder for Everyone
Before this EO, people who visit the United States on a temporary visa could drop their passport off at a U.S. consular office (think something like a Customs office) and have it renewed more-or-less automatically, as long as there were no red flags picked up by State or DHS. Section 8 ends that program, and requires all visa renewals to go in for another interview.
This will add tons of work for U.S. Consular officers abroad, and inconvenience many travelers to the United States. This affects every country in the world except the 38 with visa-free travel to the United States, so it is surprising it has gotten so little media attention. In order to handle this workload, the EO authorizes a hiring binge of visa interviewers. Yes, that’s right: amidst a hiring freeze, the federal government can now hire lots more embassy workers for the menial task of asking tourists what they plan to see in the United States.
Section 9 is related, and is aimed at punishing countries that charge excessive fees on U.S. travelers. This might help lower visa fees for Americans, so could do some real good! However, it could also lead to many countries simply refusing to cooperate, and everyone facing higher travel costs on all fronts, making it costlier to do business, and harder for foreign tourists to visit the United States and buy our products. It is unclear right now what the effect will be.
Section 10: The Public Terrorist List
Section 10 is kind of like a sex offender registry, but for terrorism by foreigners. It requires DHS, every 180 days, to announce a list of foreign nationals who have even been charged with terrorism or gender-based violence.
Now, on its face, this is not unreasonable: most of this is public record anyways, it’s just now being collected in one place. However, many critics have noted that listing only foreign nationals could make it look like only foreign nationals commit acts of terror. However, most terrorist attacks in the United States are carried out by American citizens like one of the San Bernardino attackers, or Omar Mateen at the Pulse nightclub. It is unclear why only foreign nationals are viewed as posing a terror threat worthy of public notice.
Fix It, and Fast
The current EO was rolled out in a haphazard way that damages any effort to have a serious conversation about refugee admittance and the security concerns of many Americans. It poisons the well of debate. Reasonable people can disagree about how many refugees we should have, but using a 120-day halt to game the numbers and make hitting your own publicly announced cap nearly impossible seems underhanded.
Most reasonable people would agree that banning people who have never been associated with any terrorist attack in our country (say, Bhutanese Hindus) doesn’t make much sense. Reasonable people can disagree about the right security precautions for Syrians, but most people would agree that at least the persecuted religious minorities should be given a categorical exception to any ban, not just an unused “case-by-case” exemption.
Reasonable people can disagree about how much vetting we should be doing (probably more!), but surely nobody thinks the solution is to force the State Department to stop all vetting for 120 days. Reasonable people can disagree about how to handle travel from dangerous, war-torn countries, but a blanket ban that hits U.S. permanent residents, students at American universities, and that separates mothers and their children seems over the top.
This EO can be fixed. DHS’s decision to admit U.S. permanent residents is an important first step. We need more fixes, and fast: an end to any halt on refugees from countries with no visa ban, a categorical exemption for religious minorities in Syria, a more historically normal refugee cap like 70,000, maybe even a special additional cap dedicated to religious minorities, if the Trump administration is sincere about helping these people suffering for their faith.
Keeping Americans safe must always be the first priority for any president. But while that desire for safety is understandable, it does not excuse an executive order that is simply not well thought out. We need our leaders to be wise, not just aggressive, in tackling our national challenges. This EO can be fixed, it should be fixed, it is not even that hard to fix, if the administration truly wants to keep Americans safe and display to the world the strength of the American way.
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