Terrorism and Migration: Part II                                                       30 January, 2017

by

Howard Adelman

If we examine Donald Trump’s executive order on refugees and terrorism, we find the following with respect to the specific countries targeted:

Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest. (Sec. 5c)

I have never read a government legal document like it. It is not an office holder legally entitled by law to make such a determination that is cited, but Donald Trump personally. This occurs several times in the document and each time it stands out from the regular bureaucratese. I am quite sure that Donald Trump never read the full document that he signed – it is doubtful if he could understand it if he had the patience to read it. However, I also suspect that he personally wrote the few sections where the personal pronoun is used.

Though the press was rife with rumours that seven countries in the Middle East would be targeted, only one is specifically included for an indeterminate ban – Syria. Look at the wording. It does not say that under current American law, Syrians will be deemed a threat to the United States. It explicitly says, “I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States.” Not Homeland Security. Not the CIA. Not the Secretary of State. Nor even I in consultation with any one or all of these agencies. Just Donald Trump need make such a determination. The entry of Syrians is to be suspended until, “I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.”

Further, “I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants (my italics) of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas (two ministers of Justin Trudeau’s government would be exempt but not an estimated at least 200 Canadians counted thus far), North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).” G-1 visas are for foreign staff from international organizations (UN or an International Mission), but not immediate family members; G-2 visas are for accredited representatives of recognized foreign governments entering to work for the UN or an international Mission, their staff and immediate family members; G-3 visas are the same as G-2 visas except they are for individuals, staff and immediate family members from unrecognized governments;  representatives; G-4 visas are for officials, employees of international organizations and their immediate family members.

These are the exceptions. But for others traveling on other visas, such as an H-1B visa issued to employees of American companies hired because of their professional, scientific and technical expertise, it is a different story. This is also the case for those travelling on various forms of immigrant visas. After Rizwan Farook, a US citizen, and Tashfeen Malik (a Pakistani, a country that does not fall under the ban, murdered 14 people in San Bernardino on 2 December 2015, Trump called for a “total and complete shutdown of Muslims entering the United States.” This was later changed to “immigration from terror-prone regions where vetting cannot safely occur.”

The promise applied to immigrants only, not those entering on tourist or student visas. Further, there was no explicit religious test in that proposed ban, only the criterion that the individuals came from a terror-prone region. The latter was to be defined under the Executive order based on a report to be compiled in the first thirty days. But until the report was prepared, visas for any Syrians, with the above exceptions, were suspended indefinitely, and from six other “terror-prone” countries (Iran, Iraq, Libya, Somalia, Sudan and Yemen) for up to 90 days.

The current executive presidential order, though tentatively referring to a small number of countries, cuts a much wider swath for suspending the issuance of visas. The ban applies to all refugees for at least 120 days. Further, the ban applies to those who already hold visas and to those who hold Green cards and even to those who might be American citizens. The onus was then to be placed on those applying to prove they did not represent a threat to the U.S.

Section 217 1/ (8 U.S.C. 1187) established what was called a 2/ program that authorized the Attorney General and the Secretary of State together permitting the Attorney General, upon consultation with the Secretary of State to waive visa requirements under certain specified conditions: for tourist visas under 90 days, for countries with reciprocal visa programs, etc. The waiver could only apply if a determination was made (section 6) that, “The alien has been determined not to represent a threat to the welfare, health, safety, or security of the United States.”

Look at the widespread effects, first generally and then more specifically. One in eight Americans is an immigrant born abroad. Just from the countries specified, there were over three-quarters of a million people, one-third of whom immigrated before 1990. If their position in America was compromised, an average of approximately 10% employed in health care, business and education would be affected. 370,000 come from Iran and 170,000 from Iraq. After 60 days, depending on the contents of a report received from Homeland Security, more countries can go on the list and the period applied to the countries other than Syria mention already could be extended well beyond 90 days.

However, in a legal case brought by the American Civil Liberties Union, Judge Ann Donnelly ruled in New York that two Iraqis who had been detained could not be deported until a full hearing had been held. Hameed Khalid Darweesh had worked for the U.S. government for a decade. Haider Sameer Abdulkhaleq Alshawi had arrived at JFK to join his wife who was a contractor. Both, though not deported, would be held in a detention centre until a full hearing could be held a month from now even though they arrived with legal visas. Up to 200 others arriving from abroad were in the same boat – no pun intended.

From one company alone, Google, approximately 100 of its employees from the seven specified countries were travelling abroad either on business or vacation when the presidential order were issued. Even though they were legally working in the U.S. they will be affected by the ban and likely end up in detention centres. Google’s effort to call them to return immediately probably came too late for most of them. One traveling in New Zealand, based simply on the rumours, changed his plans and arrived back in the U.S. just before Trump signed the presidential decree. A British Somali woman traveling home from Costa Rica via JFK was not allowed to board her plane because airlines are subjected to severe fines if they carry passengers banned under this executive order as provided in existing legislation under “Carrier Agreements.”

The initial chaos in the first 36 hours since the decree was signed has been enormous. But what happens when, under section 3 (f), the Secretary of State or the Secretary of Homeland Security submits “to the President the names of any additional countries recommended for similar treatment”? Every Muslim, and even every Christian or members of other countries from dozens of countries around the world will now be under a cloud. Suddenly and virtually without warning, they could be struck down by a deluge from this ban.

Section 4 of the presidential decree dealing with implementing uniform screening standards for ALL immigration programs reads:

• The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.

This is the extreme vetting Trump promised. However, the U.S. already practices extreme vetting. On average, it takes 36 months – that is correct, 36 months – to get through 11 departments that must deal with a visa application. The new proposal simply forbids exceptions, such as exemptions in some cases for personal interviews. The ability of American corporations to hire the best and the brightest from wherever they come will be seriously undermined. Trump has introduced super-extreme vetting without any documentation on the need or any analysis of the cost-benefits and without any assessment of the effects on America’s core values.

Though not the largest quantitative effect, the suspension of the US Refugee Admissions Program for 120 days will mean that approximately 37,000 refugees who would have been admitted and who have already been slated for admission after extreme vetting will now once more have their lives suspended. It is hard to imagine what “additional procedures” would ensure that “those approved for admission do not pose a threat to the security and welfare of the United States.” The absence of evidence that this is not a mode of entry used by terrorists, or that there are other far easier methods to get into the US, let alone any humanitarian concerns, did not deter Donald Trump from insisting on such a provision given that his immune system cannot tolerate facts and his imagination produces “alternative” facts with the wave of his hands.

Trump, however, goes further. He has repeatedly said on television and in tweets that after the ban is lifted, persecuted Christians will be favoured. He insists that all refugees taken in were Muslims when, in fact, though Christians used to make up about 5% of the population of a country such as Iraq, a population that is now probably less than 1% after several decades of “religious cleansing,” Christians made up almost half the population of refugees taken into the United States, not because they were Christian, but because those Christians, like the Yazidis, were under the most severe threat from persecution. The present system already favours the intake of Christians because they are major targets of persecution. Section 5 (b) giving priority to religious-based persecution is simply window dressing likely to make little practical difference but severely compromising the universal principles on which refugee law is based.

The executive order also gave instructions to give both state and local jurisdictions greater involvement in “determining the placement or resettlement of refugees in their jurisdictions,” (5 (g)) in direct contravention to the American principle that anyone who has legal residence in the U.S., except certain individuals convicted of specific criminal offenses, shall have the full freedom to travel anywhere in the U.S. At the same time, any city that decides to be a sanctuary city for refugees will have its federal funds cut off. In other words, you can have local power if you do not want refugees, but if you do want to offer them protection, you will be economically punished.

To be continued