What just happened?
On Friday, President Donald Trump signed an executive order titled, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The stated purpose of the executive order is to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.”
Why was this executive order implemented?
In almost all cases, a citizen of a foreign country who seeks to enter the United States must first obtain a U.S. visa. There are two main categories of U.S. visas—nonimmigrant visas, for travel to the United States on a temporary basis, and immigrant visas, for travel to live permanently in the United States (this type is sometimes referred to as a “green card”).
This executive order notes that the “visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States.” It also adds that since the terror attacks on September 11, 2001, “numerous foreign-born individuals” who were admitted to the country on a visa “have been convicted or implicated in terrorism-related crimes.” The intent of the executive order is thus to “prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.”
What policies does this executive order change?
There are roughly 10 changes to current policies made by this executive order:
1. Suspends the issuance of visas and other immigration benefits from foreign nationals of seven countries
For the next 90 days, both immigrant and nonimmigrant visa holders will be denied entry if they are from the following seven countries designed as being of “particular concern”: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. (However, at any time in the next 90 days the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.)
2. Implements uniform screening standards for all immigration programs
Within the next 30 days, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, is required to determine what information is needed to determine (a) whether a foreign national is who they claim to be, and (b) whether they are a threat to public safety.
The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation are also tasked with coming up with a “uniform screening standard and procedure” to (a) determine if a foreign national is attempting to obtain a U.S. visa fraudulently, (b) determine a way to evaluate the applicant’s “likelihood of becoming a positively contributing member of society,” and (c) determine a means of accessing whether the person has an “intent to commit criminal or terrorist acts after entering the United States.”
3. Suspends the refugee program for four months
The U.S. Refugee Admissions Program (USRAP) has been suspended for the next 120 days, pending the addition of new screening procedures for refugee candidates. (Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures.)
4. Prioritizes refugee claims for persecuted religious minorities
After the 120-day period, when the USRAP resumes admissions, the State Department is directed—“to the extent permitted by law”—to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality (e.g., Christians or Jews from a predominantly Muslim country).
5. Indefinitely suspends refugees from Syria
The executive order specifically designates refugees from Syria as being “detrimental to the interests of the United States” and suspends all such entry until President Trump has determined “sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.”
6. Limits the number of refugees for the fiscal year
Every year the president determines the number of refugees that can be admitted into the United States. For fiscal year 2017 the number has been capped at 50,000 (total from all countries).
7. Allows for case-by-case waivers
After the temporary suspension expires, the Secretaries of State and Homeland Security will be able to jointly make a determination to admit individuals to the United States as refugees on a case-by-case basis if it is deemed to be in the national interest.
8. Permits state and local governments to have a broader role in refugee policy
To the extent “permitted by law and as practicable,” state and local jurisdictions are to be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees, and a proposal devised to lawfully promote such involvement.
9. Creation of a database for reporting on certain activities of visa holders
Requires that the Secretary of Homeland Security, in consultation with the Attorney General, collect and make publicly available every 180 days information regarding:
• The number of foreign nationals in the United States who have been charged with, convicted of, or deported because of terrorism-related offenses while in this country;
• Information regarding the number of foreign nationals in the United States who have been radicalized after entry into this country;
• Information regarding the number and types of acts of gender-based violence against women, including honor killings;
• Any other information relevant to public safety and security, such as commission of major crimes.
10. Various miscellaneous policy changes
• Rescinds the Visa Interview Waiver Program and requires that all individuals seeking a nonimmigrant visa undergo an in-person interview.
• Expands the Consular Fellows Program.
• Orders a review of the Visa Validity Reciprocity.
• Provide a report on the estimated long-term costs of the USRAP at the federal, state, and local levels.
Does the executive order put a ban on Muslims entering the United States?
No. During the presidential campaign Trump read a statement saying, “Donald J. Trump is calling for a total and complete shutdown on Muslims until our countries’ representatives can figure out what the h*** is going on.” However, the executive order that he signed does not ban Muslims from any country not listed in the seven nations of particular concern (as outlined above). Non-Muslims, including Christians, are also included in the temporary ban from those countries.
In fact, President Trump is distancing himself from his previous inflammatory rhetoric. He recently issued a statement stating, “To be clear, this is not a Muslim ban, as the media is falsely reporting. This is not about religion—this is about terror and keeping our country safe.”
Does the executive order ban lawful permanent residents (i.e., green-card holders)?
No—at least not anymore. On Saturday, a Department of Homeland Security official said people holding green cards, making them legal permanent U.S. residents, were included in President Donald Trump's executive action. But on Sunday, John Kelly, the Secretary of Homeland Security, issued a statement clarifying, “In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.”
Does the president have the authority to ban people from specific countries?
Yes. The Immigration and Nationalization Act has a section on “Suspension of entry or imposition of restrictions by President,” which states:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Did President Obama implement a similar ban against Iraq in 2011?
Not really. President Trump has said, “My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months.” But that’s not accurate. In 2011, the Obama administration implemented enhanced vetting for Iraqi refugees, which caused a months-long slow-down in the number of visas that were granted.
However, the Obama administration doesn’t appear to have changed the visa policy, did not issue a direct halt on refugees from that country, and did not put a stoppage on non-refugee visas held by Iraqi nationals as President Trump has done.
Is it legal for the President to prioritize religious minorities over other refugees?
Yes. In fact, there is already a similar policy in place for refugees from Iran.
The late Sen. Frank Lautenberg (D-N.J.) introduced an amendment to the 1990 Foreign Operations Appropriations Bill to assist Jews seeking a path out of the Soviet Union. Since then the amendment—now known as the “Lautenberg Amendment”—has been reauthorized every year, though for different purposes. In 2004, Congress amended the Lautenberg Amendment to add the “Specter Amendment,” which facilitates the resettlement of Jews, Christians, Baha’is, and other religious minorities fleeing Iran.
President Trump’s executive order essentially extends and broadens the Lautenberg Amendment to make it apply to all countries where religious persecution is occuring.