Terrorism and Migration: Part I                                                                      29 January 2017

by

Howard Adelman

Donald Trump is at it again. Why doesn’t he leave me alone? Why doesn’t he leave you alone? On Friday, 27 January 2017, the Office of the Press Secretary released Donald Trump’s executive order on migration, formally called, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Before we go to the text itself, look at all the worry and consternation Trump has already caused simply by the preliminary leaks. His own bombast on the subject on television set off verbal brush fires all over the place. The full text can be found of numerous sites around the world; s:https://www.nytimes.com/2017/01/27/us/politics/refugee-muslim-executive-order-trump.html)

Many businesses with skilled workers from overseas employed by American companies are affected. Would the companies have to meet abroad so that these employees can attend? Would all international academic conferences have to be relocated outside the United States? What about students and faculty traveling back and forth? And consider all the private universities in the U.S. dependent on income from foreign students. There are over a million foreign students; though few come from the countries specifically boycotted, all would have to go through a rigid check system.

Look at the letter the Dean of Faculty of Princeton University felt impelled to send her colleagues this past Friday even before she could access  the full text of the new executive order. Simply based on the pre-publication media reports and the consternation they were already causing, she sent out the following letter to try to quiet the fears raging though her segment of academia.

We have received many messages from members of our community concerned about the impact of possible changes in immigration policies under the new administration in Washington. According to media reports, President Trump signed an executive order today. It has been reported that the order includes stricter immigration vetting measures and may include provisions that could impact non-immigrant visa holders as well as lawful U.S. permanent residents from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. At this stage, we do not know the content of the executive order or its impact.

We do, however, want to be prepared to support and advise our students, scholars, and others who might be affected by any changes, and to express our deep concern about any potential impact on the ability of this and other American universities to engage in teaching and research of the highest quality.

We have strongly advised students and scholars who might be affected and who have travel plans in the coming days to defer travel outside of the United States until there is some clarity and legal analysis of the situation or, if they must travel, to seek legal counsel before they do. We have also shared with potentially affected students and scholars the information we are receiving from a law firm that follows these matters closely and has advised members of our community in the past. More from Fragomen Worldwide Immigration Law Firm Alert January 25, 2017.

We wanted to share this information more broadly with all of you because many of your students or peers may be reaching out to you for information or support, and we are all affected when members of our community feel at risk. We take very seriously anything that could affect the ability of our students and scholars to engage in their scholarship. International students and scholars who have immigration questions or specific questions about their current situation should contact the Davis International Center (puvisa@princeton.edu), which is following the situation extremely closely and in the best position to provide advice or resources.

We will continue to keep you posted as we know more and we will work closely with our Princeton colleagues, peer institutions and the immigration law community to understand this and other immigration issues as they arise and to support members of our community who make essential contributions to research and teaching on this campus.

Does the new executive order include “stricter vetting procedures,” what Trump thunders as “extreme vetting”? Would the new policy impact on non-immigrant visa holders, such as individuals on student visas or teaching in the United States at universities on temporary work permits? Would the policy affect lawful U.S. permanent residents from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen who already hold permanent residence visas? Would the executive order affect teaching and research of the highest quality, or any quality for that matter? Though intended to express a concern about research in general, the effect of this quickly drafted open letter to the members of her community in the wording unintentionally suggested that Princeton was only concerned about the highest quality research? The fallout from the irrationality exuding from Washington even frazzles the minds of brilliant academics so they too misspeak.

Even more fundamentally, how does the executive order conform with existing law that in designating countries for exclusion, there must be an evaluation of the effects of such a designation “on the law enforcement and security interests in the United States (including the interest in enforcement of the immigration laws of the United States and the existence and effectiveness of its agreements and procedures for extraditing to the United States individuals, including its own nationals, who commit crimes that violate U.S. law.)” In other words, if countries are designated – as Syria as well as Iran, Iraq, Libya, Somalia, Sudan and Yemen are – without any evaluation on U.S. capacity for law enforcement or on U.S. security interests domestically and internationally and on extradition procedures, is the executive order illegal? It is noteworthy that the law firm commenting on the presidential executive order did not comment on the legality of some of its sections.

Further, though the President and the members of his cabinet are given wide discretion under existing legislation, they are all required to follow certain very clearly defined procedures in applying such a designation. And there is no evidence, and likely there is none given the very short period the Trump government has been in power, that those procedures have been followed. The issue is not only whether the ban is “inappropriate and ineffective in the fight against terror,” as the American Iranian Council has argued, but the executive order may also be illegal since there has been no effort to gather evidence to measure either the appropriateness or effectiveness in fighting terror.

What initial advice was offered? If you might be affected, do not travel. That is, you risk not being re-admitted to the United States. If you must travel and are in a situation that might be affected, get some legal advice. Immigration lawyers are about to do a booming business in the United States and around the world. Such are the affects of the blather coming out of the mouth of the most powerful individual in the world. America’s best and brightest, not any prospective terrorist, are discombobulated. This is the first paragraph of the legal advisory a top immigration law firm sent out:

President Donald J. Trump is expected to sign an executive order that will suspend the entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen to the United States for a period of 30 days, according to a published draft of the order. {A report in the 26 January 2017 New York Times was cited.] The executive order is also expected to suspend a worldwide program that exempted certain visa renewal applicants from consular interviews. [See Section 8 (a)]

The focus of the panic attack was on foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen or on those who hold dual citizenship for the birth place may determine whether or not the person is deemed to be a national of one of those countries. Thus, even if the person is an American citizen, if a country such as Iran insists that the person is an Iranian national, under this presidential executive order, the person can be treated as an Iranian national.

Will residents in America who have strong ties to those countries be affected, since it is the foreign country’s laws that determine whether the United States deems the individual to be a member of that foreign nation? Does the ban apply to temporary visa holders (B-1, H1B and L-1) who are currently lawful permanent residents of the United States? If so, then you should be concerned about travelling back “home” if one of your parents becomes ill. The letter from this legal firm warned about long delays in processing visa applications as a result of the executive order, since the waiver for personal interviews was removed. All applicants would have to have a personal interview.

For a government determined to whittle down bureaucracy, this perhaps illegal cancellation of existing law under section 217 2/A (8 U.S.C. 1187) applicable to countries with very low non-immigrant refusal rates will just mean many more personnel required to deal with visa applications.

Now not one of these words of the law firm or the Princeton Dean of Faculty mentions refugees, the ostensible prime target of the executive order. The momentum of this America-First inspired policy almost forced institutions and professionals to attend first to self-centred needs, those of their own community members. Those most affected and those most in need of assistance, refugees, were ignored in both the letters of the law firm and the dean. This may be the most pernicious effect of the new regime.

Certainly, there is a danger of this in Canada where officials appear primarily focused on possible negative (and positive in the case of pipelines) effects on Canada of the new Trump regime. The Minister of Immigration, who was himself born in Somalia, if not carrying a Diplomatic passport, could possibly be barred from entry into the U.S. However, contrary to the ordinary meaning of Trump’s executive order, on Saturday, the U.S. State Department “clarified” that Canadians with dual citizenship from any of the seven nations would be denied entry for the next three months. Minister Ahmed Hussen evidently got an agreement from Washington reversing this decision and that not only Canadian citizens with dual citizenship from one of the seven countries designated in the ban, but also those with citizenship from one of the countries but only permanent residence in Canada, would NOT be barred from entry into the U.S. However, an Alberta biomedical engineer, Haji Reza, born in Iran with a Canadian permanent residence card, was banned from entry into the U.S.

Further, the Minister announced that Canada would step in to invite those refused entry into the U.S. to come to Canada on temporary permits. However, though Prime Minister Justin Trudeau had tweeted: “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada,” However, Canada has not yet increased its targeted intake to make up, at least in part, for those refugees denied entry into the U.S.

There is anther side, however, a more tragic side. In Quebec especially, there has been a rise of Islamophobia, inspired in part by the French government ban on wearing items which communicate religious messages – kippas, large crosses but especially hijabs. A 2015 Quebec Human Rights Commission survey “found that 43 percent of Quebecers believe we should be suspicious of anyone who openly expresses their religion, with 49 per cent expressing some uneasiness around the sight of Muslim veils.” After a note had been posted the year before on the Centre Culturel Islamique de Québec reading: “Islam hors de chez moi,” (Islam out of my country), this past year during Ramadan, a pig’s head wrapped in cellophane and tied with a bow was left on the doorstep of the centre.

Yesterday evening events became much worse. A gunman opened fire on the 40 or so congregants at that Centre. There are at least six deaths and many injured. Will Trump put a ban on travel to the United States against right wing Islamophobic terrorists?

The reality is that Trump policy measures targeting Muslims, while insisting he does not target Muslims, is contagious. Trump’s linkage between terrorism and Muslim migrants and refugees is not only dangerous to the fundamental values of the United States, not to speak of its efficient functioning, but to other countries around the world.

To be continued

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