Since President Trump was inaugurated on January 20, 2017, his actions have turned U.S. immigration into a nightmare for countless numbers of lawful immigrants and visa holders and arriving refugees, and even for naturalized U.S. citizens from certain countries targeted by President Trump. This does not even take into account those currently being processed for visa applications.
He issued three Executive Orders directly addressing immigration. He did so without consulting the departments and agencies tasked with carrying out his orders. CNN reported that “A Border Patrol agent, confronted with arriving refugees, referred questions only to the President himself, according to court filings.” It reads like a line from a future movie. The three Executive Orders were first issued on January 25, 2017. The Executive Order addressing the admission of refugees and other non-U.S. citizens from “countries of particular concern” with regard to terrorism was re-issued on January 27, 2017, with a revised title. I haven’t even had time to read the two versions side-by-side to see what if anything has changed between the first and the second version. This detail is telling in that it clearly shows that this administration cares little for getting things right in its rush to roll out its version of government.
This Executive Order, originally titled “Protecting the Nation from Terrorist Attack by Foreign Nationals” in its January 25, 2017, version, is now titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” in its January 27, 2017, version.
Like President Trump’s inaugural speech, this Executive Order presumes a nation under imminent attack by sinister forces that must be immediately repelled, at all costs. This “emergency” mindset attempts to steamroll us to blindly surrender our rights and the rule of law in return for a false sense of security that the Trump administration has shown no ability to deliver. This Executive Order halts the admission of all foreign nationals from certain countries, and then we had to hunt down which countries the President meant, because it was not provided with the Executive Order, not even as a handy addendum. By “all foreign nationals,” this Executive Order included lawful permanent residents, as it only specifically exempted certain diplomatic visa holders. So, if you happened to be a lawful permanent resident on, say, vacation outside of the United States when this came down initially it appeared that you too would be banned from returning to the United States for a period of at least 90 days. The new Secretary of the Department of Homeland Security has taken it upon himself to except this category of foreign national, but until that point the Executive Order itself did not. Can you imagine the havoc this would have wreaked on families and businesses when their lawful permanent resident family members and employees were stuck without warning out of the country for a period of at least three months?
From an immigration attorney’s perspective, let me tell you that the directives of “extreme vetting” in this Executive Order are either in place already, in terms of background checks and confirming that the applicant actually has the proper basis for immigration or admission to the United States, or are so extreme as to be unlawful or impossible to implement and still keep our system of immigration operative. I have had clients denied visas who from my perspective clearly merited them. I have had an Afghan interpreter who worked with U.S. Special Forces and who was cleared for that work and had a letter of support from every officer with whom he worked denied a visa, without explanation as to why for over a year and then ultimately denied on a BS reason. Believe me, the “extreme vetting” already exists and it is a particular nightmare for visa applicants. It is known by the banal name of “administrative processing.” Once a visa case is stuck in “administrative processing” the chances of getting an approval or even a cogent reason for a denial shrink to almost nothing.
It is hard to even know how to begin to point out all the things that are wrong with this Executive Order.
It discriminates based on national origin, with no showing of how such discrimination is necessary to serve a compelling governmental interest, pursuant to the strict scrutiny standard of review. Such national origin discrimination has been banned in our Immigration and Nationality Act since 1965. There are arguments that the president has the authority to ban foreign nationals on an as-needed basis. We are about to find out how extensive that power reaches. Trump is like a two-year-old child here, testing how far he can push presidential authority before we push back. What is missing, though, is how this Executive Order promotes the interests of our nation as a whole. Where are the considered arguments for these extreme actions, the effort to persuade the nation that such actions are needed? Instead, all we have is a a wink and a nod, asking us to, “Trust me! I alone can and will protect you.” Well, in a democracy we need to understand why actions are taken, and to judge for ourselves the justification for those actions, not a meaningless reassurance that everything will be fine. We are not children to be ignored while the “adults” sink our ship. (And another thing, under this worldview what happens if Trump becomes incapacitated? If only he and he alone can save us then this must mean that we are all doomed without his most excellent leadership. He is after all, in his own opinion, irreplaceable. Next on the agenda will be a life-term presidency. It’s the only way for us to be safe.)
The Executive Order also bars the admission of Syrian refugees who have been already been subject to the best vetting processes that our Department of State could devise. By directing that “extreme vetting” be employed, Trump’s Executive Order implies that the vetting conducted by our Department of State personnel was unsatisfactory, without any proof. Do you really think that any State Department officer involved in vetting refugee applications would really cut any corners or fail to follow up on any indication of fraud or criminal or terrorist involvement? What have State Department officers been doing all this time in vetting refugees, if not performing “extreme vetting”? What State Department officer wants to be the one who let through a Trojan horse refugee? According to a Time magazine article published in November 2015, it takes an average of 18 to 24 months for a Syrian refugee applicant to be approved for asylum in the United States, after being referred by the United Nations. That is up to two years of life in limbo waiting for sanctuary, in addition to the time you spent escaping from an unlivable situation.
As a nation that works in cooperation with other nations to promote peace and prosperity globally, we are subject to human rights laws and under these laws we have a responsibility to take in refugees, the most vulnerable immigrants who have lost their homes and many other valuable things on their journey to seek a safe place to re-start their lives. To turn away refugees is to turn our back on the founding principles of America, that we are a nation of immigrants and refugees and out of that foundation we have forged one of the most vibrant and diverse societies ever known. Immigrants are disproportionately the most active entrepreneurs in America. They create businesses and jobs and bring new thinking and new ideas to play. As with any group, there are immigrants who are dangerous criminals who should be punished and deported, but the rate of criminality among immigrants, even unauthorized immigrants, is lower than that of the native-born American population. If the goal is to reduce crime rates, we need to take a good look in the mirror before demonizing immigrants if we are serious about fighting crime.
It discriminates on the basis of religion, prioritizing Christian applicants over others. Barring discrimination on the basis of religion is a founding tenet of America. This Executive Order treats that tenet as disposable. It is not, and our courts will be the proving ground for this.
On a more prosaic note, this Executive Order thrusts a mammoth amount of work on to the departments that handle immigration processes, piling the requirement of report upon report on top of an already full workload. (Do not get me started on current immigration processing times). Complying with these reporting requirements will derail the regular workload of these departments for an unknown amount of time. And where is the money coming from for all this extra work? Is Congress going to funnel our tax money to the compilation of these reports so that they get done by the unreasonable deadlines in the Executive Order? Is this the best use of our taxes? This is what President Trump chose to do as one of his first actions in office?
Let us not forget that President Trump has been busy in other ways, ways that have been roundly criticized by experienced and respected intelligence professionals. But that is a different topic.