The New Travel Ban, National Security, and Immigration

On Friday, January 27, President Trump signed an executive order restricting travel to the United States of people from seven largely Muslim countries (currently Syria, Iran, Iraq, Libya, Somalia, Sudan, and Yemen) designed, he said, to keep radical Islamic terrorists out of the United States. In this Q&A, immigration law expert Jayashri Srikantiah and national security law expert Shirin Sinnar discuss the order, its potential consequences, and the law.

Professor Jayashri Srikantiah (photo:
Professor Jayashri Srikantiah

There is some confusion about the order. Can you explain it?

Sinnar: The order suspends refugee admissions across the board for 120 days, ends the resettlement of refugees from Syria indefinitely, and blocks the entry of noncitizens “from” the seven majority-Muslim countries for 90 days.  The Trump administration has reversed itself twice over whether this ambiguous language permits the entry of people from the listed countries who have U.S. green cards; most recently, DHS issued a statement that appears to state that it will admit green card holders unless it has information to deem them a security threat.  The status of other classes of individuals remains unclear, such as dual nationals of the listed countries; U.S. officials appear to have given contradictory information on the issue to their counterparts in various European countries and elsewhere.

How has the order been implemented thus far?

Srikantiah: The order has created chaos, confusion, and tragedy at our nation’s airports and abroad. Refugees and individuals with valid visas have been detained for hours and refused admission. Others have been stranded abroad, denied the opportunity to board planes to the United States. The federal government’s practices have varied dramatically by geography, and there appears to be no uniform rule for implementing the order. We have heard reports of Customs and Border Protection (CBP) subjecting even those not from the listed countries to lengthy delays and additional questioning.

Thousands of people—including many elected officials—have protested the ban, especially at airports. Attorneys have worked tirelessly to provide representation.

Could this order be expanded to include other countries?

Shirin Sinnar 1
Professor Shirin Sinnar

Sinnar: Two points should be noted on the scope of the ban.  First, by its terms, the order contemplates the addition of other countries that do not provide requested information on their nationals within a 60-day time frame.  Second, there have been numerous reports of effects on individuals from countries that are not included in the current travel ban, such as Pakistan, possibly as the result of border agents treating the travel ban as a license to discriminate against other groups of travelers who are Muslim or perceived to be Muslim.  Thus, the order has already affected immigrants beyond refugees and individuals from the seven countries.

The rationale for this travel ban is reportedly national security. How might this order benefit American national security, if at all? How might it hurt it?

Sinnar: Many national security experts believe that the travel ban is counterproductive, if not disastrous, to U.S. security interests.  Over 100 former national security officials recently wrote that the executive order “jeopardizes tens of thousands of lives” and “will do long-term damage to our national security.”  For one thing, the travel ban delivers a propaganda coup to ISIS and other terrorist organizations that seek to recruit Muslims from Western countries.  As the Washington Post recently reported, social media postings to militant websites have celebrated Trump’s travel ban as reinforcing their message that the “West” is at war with Islam and will ultimately turn on its Muslim citizens.  According to research by the Carr Center for Human Rights Policy at Harvard, earlier well-publicized abuses of human rights by U.S. officials (at Abu Ghraib and Guantanamo) were a potent driver of support for militant groups in Iraq and elsewhere.

Moreover, the travel ban threatens U.S. relationships with governments, such as that of Iraq, that are its partners in the military campaign against ISIS.  Thousands of U.S. troops, contractors, and other civilians are working in Iraq, but in response to the travel ban, Iraq’s parliament is now advocating a reciprocal ban on Americans traveling to Iraq.  More generally, U.S. security benefits from an image of the United States as a world leader, an advocate for human rights and democratic values, and a nation with a stable, credible government.  While U.S. foreign policies have often belied that image, the travel ban – alongside the dysfunctional process that produced it and the chaos that has followed it – tarnishes that image at a whole new level.

Finally, if we expand our focus beyond U.S. “national security,” traditionally defined, to international security or the security of people, other consequences of the travel ban come into focus.  Clearly, the ban undermines the security of refugees categorically barred from the United States.  But it also affects what other governments may choose to do:  if the United States closes its borders to refugees, for instance, others may follow suit, including nations that have taken in far more refugees than the United States.  Moreover, repressive policies in the United States license foreign governments to do the same – think Russia, the Philippines, or Egypt – undermining human rights of communities throughout the world.

What legal challenges have been brought against the order? 

Srikantiah: The first challenge was a class action lawsuit brought by the ACLU and others in federal district court in Brooklyn on behalf of a class of refugees and individuals from the seven designated countries with valid visas. The lawsuit challenges the unlawful detention and denial of entry to such individuals. On Saturday, Judge Connelly granted a temporary stay of the executive order, blocking the removal of refugees and others with valid travel documents. Despite the stay, CBP continues to subject many individuals arriving at airports in the U.S. to lengthy delays and detention. Attorneys across the country are working to ensure compliance with the stay.

In addition to the lawsuit in New York, cases were filed in Massachusetts and Virginia on behalf of refugees and others—including family members and individuals who plan travel abroad. The Attorney General of Washington state has filed a lawsuit challenging the executive order. And yesterday several organizations filed a class action lawsuit in Seattle on behalf of U.S. residents petitioning for immigrant visas for family members from the seven designated countries. It is likely that additional lawsuits will be filed in the weeks to come.

How might this order effect home grown terrorism?

Sinnar: There may be effects, but it is hard to predict them with any clarity.  First, political scientists have long debated the individual and structural causes of terrorism and other forms of political violence.  The complexity of causation should caution against drawing clear lines between particular policies and incidents of terrorism.   That said, the order, as explained above, certainly makes it easier to persuade disaffected Muslims that Western governments invariably oppress Muslims.  On the other hand, the widespread backlash triggered by the order – including the images of thousands of ordinary Americans gathered at airports nationwide to protest it – may send an important message of inclusion that partly counteracts that effect.

Finally, it should be noted that discriminatory high-level policies (and rhetoric) often legitimize private acts of prejudice and violence against minority communities.  Policies that appear driven by anti-Muslim animus may license right-wing violence against Muslims and others perceived to be Muslim.  The spike in hate crimes against Muslims during the presidential campaign was likely fueled, at least in part, by xenophobic rhetoric from Mr. Trump and other Republican candidates.  (The mass shooting Sunday at a Quebec City mosque by a native Quebecker supportive of the French far-right, which killed six worshippers, may turn out to be a particularly egregious example of such violence, although it is too early to know for sure).

What are the legal questions raised by the executive order?

Srikantiah: The executive order is problematic on many fronts. It raises serious equal protection concerns by targeting individuals based on country of origin and religion. It targets Muslims—to the point where it is being called a “Muslim ban”—rendering it vulnerable to Establishment Clause challenges. The Order operates to deny individuals the procedures by which they can apply for asylum or other protections against persecution, in violation of due process and the provisions of the Immigration and Nationality Act. And—especially with respect to lawful permanent residents—the Order runs afoul of the immigration statute and regulations.

Unless it is blocked permanently or rescinded, the Order will have a profound and terrible impact on thousands of innocent individuals fleeing persecution abroad as well as those seeking to join family members and to return to their lives in the United States.

Jayashri Srikantiah is Professor of Law at Stanford Law School and Director of its Immigrants’ Rights Clinic. Shirin Sinnar is Associate Professor of Law and the John A. Wilson Faculty Scholar at Stanford Law School.