The Long and Winding Road: The Immigration Ban

As Donald Trump’s White House continues to shift around cabinet positions, struggles to repeal the Affordable Care Act, and seems unable to rouse his declining approval numbers, there are few success stories out of this administration so far. However, despite the many legal challenges and protests — immigration might be one of them.

Since the Supreme Court decided in June to uphold parts of the ban, many are being prevented from entering the United States with little resistance from the public. As we await the Court’s decision in October, let’s revisit what led us to the travel ban in the first place.

The Long and Winding Road: The Immigration Ban

When rhetoric becomes reality


Since his campaign began, Donald Trump has run on a platform of xenophobia. Even during his announcement in June of 2015, Trump made anti-immigrant rhetoric a key rallying point for supporters. Blaming polarizing issues of drugs and crime on migrant workers gave Trump his first political policy — “strong on immigration.”

When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people. But I speak to border guards and they tell us what we’re getting. And it only makes common sense. It only makes common sense. They’re sending us not the right people.”

Shortly after Trump’s announcement that he intended to run, tragedy struck San Francisco. The shooting of 25-year old Kathryn Steinle by Francisco Sanchez created a fresh example for Trump’s narrative. Sanchez — a repeat felon and undocumented immigrant — had been deported several times to Mexico before the committing this crime. This event was quickly politicized and used as a justification for an even more limited immigration policy.

“This senseless and totally preventable act of violence committed by an illegal immigrant is yet another example of why we must secure our border immediately. This is an absolutely disgraceful situation and I am the only one that can fix it. Nobody else has the guts to even talk about it. That won’t happen if I become President.”

Numerous studies have found that immigrants are less likely than native-born Americans to commit crimes. In fact, as immigration has increased, crime has decreased.

imrs.phpWhen Trump shared his initial immigration plan in August of 2015, many balked at the scope of it. It seemed untenable and cruel to attempt to arrest and deport 11 million immigrants without a plan. Even more illogical to build a 1,933-mile wall between the United States and Mexico. Yet, to some, it was the type of policy they’d been waiting for. Trump’s policy took a hardline approach to immigration, promising a nationwide system to verify a worker’s immigration status, tripling the number of Immigration and Customs Enforcement (ICE) agents, a reversal of the Executive Order allowing for children born in the US full legal status, and suspending the issuance of new green cards for an undetermined amount of time. The former real-estate mogul claimed this hardline plan is essential to our safety, even going so far as to suggest that his plan could have prevented 9/11.

This plan was, and is, costly — a low-end estimate clocked the initial bill at $166 billion.

  1. The border wall: $5.1 billion, plus maintenance costs
  2. Increasing ICE agents: $8.4 billion, yearly.
  3. Mass deportation: $141.3 billion

However, it’s not just the border that concerns Trump. In November 2015, Trump called for a database of refugees coming over from Syria. This database would presumably serve to provide data for surveillance purposes, in order to ensure they do not pose a threat to the United States.

Upping the stakes, he later called for a “total and complete shutdown of Muslims entering the United States” citing a poll performed by the Center for Security Policy, suggesting that a disproportionate amount of Muslim-Americans believe violence against Americans is acceptable.

The Center for Security Policy has been named by the Southern Poverty Law Center as an anti-Muslim extremist group, and often advocates for an aggressive response to Islamic radicalism.

A 2016 study done by the libertarian CATO Institute found that between 1975 and 2015, only 20 refugees were convicted for attempting to carry out a terrorist act. Three refugees were responsible for terrorism-related deaths — all which took place in the 1970s.

The chances of being involved in a foreign-born terrorist attack during that period? 1 in 3,609,709 per year.

Despite these statistics, instances of violence in the United States involving foreign-born nationals, or the children of foreign-born nationals, further a narrative of terrorism — even when the facts do not support the claims. The tragedy of the Pulse nightclub shooting is a prime example.

Just before 29-year old Omar Mateen opened fire in the Orlando nightclub and tragically ended so many lives, he called 911 and proclaimed his allegiance to ISIS. Mateen had a history of habitual steroid use and domestic violence. Co-workers claimed that Mateen often said racist, sexist, and homophobic slurs. Though Mateen cited ISIS in his final violent act, it was clearly not just religious fervor that drove his violent acts. In fact, when the CIA performed an investigation of Mateen, they found no record of contact with ISIS.

A few days after the attack, Trump called for an immigration ban on countries with a “proven history of terrorism.” Though the ban would not have stopped Mateen, as he was a U.S. citizen, born in New York, Trump remained convinced that it was immigration policies and Muslim communities to blame for any act of violence with a Muslim attached.

After winning the presidential election in November 2016, President Trump made his anti-immigrant rhetoric a core tenet of his policy plan for the first hundred days. Only five days after being his inauguration, Trump signed two executive orders. One to authorize the creation of the border wall and the other was an inaugural version of the immigration ban — Executive Order 13769.

Executive Order 13769

Executive Order 13767 went into effect on January 27. In many ways, the ban could be considered a grand amalgamation of the policy promises that Trump had been making for the last two years. The order, titled “Protecting The Nation From Foreign Terrorist Entry Into The United States,” was designed to prevent unauthorized immigrants from entering the country and provide expedited deportation for those remaining in the country illegally. The order cites protection of American values as its key purpose.

“In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.  The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.  In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”

The order would shut down the U.S. refugee program for 120 days, specifically preventing refugees from Syria from entering the country. During that time, the Department of Homeland Security, FBI, and CIA were to work together in order to craft “enhanced vetting” systems to screen refugees.

The order also banned legal immigration from seven countries that have close ties to terrorist organizations — as determined by a State Department report. The report designates Iran, Sudan, and Syria as having direct ties to terrorist organizations, whereas Iraq, Libya, Somalia, and Yemen are considered “terrorist safe havens.” The State Department also revoked all visas except diplomatic ones, and allowed for waivers only on a “case-by-case basis.”

While there was much congratulating in the Oval Office upon the signing, chaos reigned in American airports. The ban was passed without specific instructions given to Homeland Security and TSA agents regarding how to handle green card holders from these countries. Many were held for hours in the airport and subjected to rigorous scrutiny. Immigrants were encouraged by legal professionals not to travel while the details remained in flux.

The order drew criticism from Republicans and Democrats alike. Many took issue with the targeting of the ban, which seemed to specifically discriminate against Muslim communities. Others pointed out that this ban, ostensibly based on security, feeds into the narrative that groups like ISIS use for recruiting and fails in its essential premise.

Amidst the growing moral outrage grew questions of legality. On February 4, one week after the ban was signed, federal judges in Washington, Minnesota, Massachusetts, and Hawaii issued injunctions on request from the ACLU to temporarily block the ban in order to determine its legality.

The Executive Order drew its legal precedence from a provision found in the Immigration and Nationality Act of 1952. This provision stated that:

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.”

However, another provision in the Immigration and Nationality Act of 1965 amended this power, and established a non-discrimination clause:

“no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”

Some challengers to the law argued that EO 13769 violated the nondiscrimination clause by discriminating based on either nationality, place of residence, or place of birth — depending on interpretation. Others questioned if this order violated a constitutional right to due process. Perhaps the most salient argument, however, is that the ban violated equal protection laws by unfairly discriminating on the basis of foreign origin. This argues that the government cannot treat an immigrant from Iraq or Libya any differently than they treat one from France or Italy. It also gave unfair preferential treatment to foreign-born members of other religions — an interpretation that was bolstered by President Trump’s own rhetoric.

On February 7, the case was heard in the 9th Circuit Court of Appeals, based in San Francisco. The three-judge panel unanimously decided to continue the suspension of the ban, as they could not find compelling evidence to prove the needs for such strict national security. Another federal judge in Virginia demanded that the White House produce any evidence to prove that this extreme action was necessary, and found it to “clearly be overreaching.”

Meanwhile, frustrated with how slow the legal process was taking, Trump floated the idea of crafting a second travel ban — one that could evade the legal challenges raised by the first. When the court blocked his travel ban indefinitely on February 21, it became clear that the President would have to revoke his original order and draft an entirely new version.

Executive Order 13780

The new version of the ban was scaled back immensely. EO 13780 made no mention of revamped vetting practices and removed Iraq from the list of banned countries. The order applies only to those without a legal visa — solving the previous green card issue. However, it still puts the refugee program on hold for four months and enacts a temporary travel ban for citizens of some countries. The order also provided a written justification for the ban. It lists passages from a 2015 State Department report which argues that some who’ve entered the United States via the immigration system posed a threat to national security, and were convicted of terrorism.

Though these substantial changes were meant to curb any legal challenge, one came nonetheless. One day before the ban was to go into effect, it was blocked by federal judges in Hawaii and Maryland.

U.S. District Court Judge Derrick K. Watson of Hawaii maintained that despite the new language and justifications in the order, the history surrounding the ban is still relevant to the decision. Watson concluded that “a reasonable, objective observer … would conclude that the Executive Order was issued with a purpose to disfavor a particular religion” and was thus still illegally discriminatory. The injunctions from Hawaii blocked both the 90-day travel ban and the 120-day ban of refugees.

As litigation continued throughout spring, the Trump Administration submitted an emergency request to the Supreme Court, requesting that they put the travel ban into effect while the legal battle continued. In June, the Supreme Court decided to take up the case itself and allowed for portions of the travel ban to go into effect in the interim — with a caveat. People with “a credible claim of a bona fide relationship with a person or entity in the United States” would be allowed to enter.

What is a “bona fide relationship”?

 In their reasoning, the Court provided examples of these relationships; close family, students, and those offered employment in the United States. The Trump Administration interpreted “close family” to mean parents and parents-in-law, spouses, fiancées, children, sons or daughters-in-law, and siblings (whole, half, or step). An initial list which excluded extended family members.

However, a ruling from the federal judge in Hawaii — and upheld by the Court — allowed for “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins” to be considered “bona fide” as well.

These rules encompass the immigration ban, as well as the refugee ban. However, refugees do not often have these established relationships and the Court ruled that a relationship to a resettlement nonprofit would not suffice.

What happens next?

The Supreme Court is scheduled to hear arguments on the ban over the next several months, and make their decision in the fall. This means that the travel ban will end its 90-day period just as the decision is to be handed out — likely intentional timing from the Court.

Parsing through this xenophobic rhetoric and factually-based refutations; the inhumanity of the ban is remarkable. A recent report from the Associated Press found that as a consequence of the ban hundreds of orphaned children, with established foster families in the United States, have been left stranded without anywhere to go. These children are from extremely vulnerable areas besieged with violence.

Additionally, it is curious that no similar ban was put in place for radicalized white men who use white supremacy as their extremist gospel. According to a joint project by the Investigative Fund at the Nation Institute, and Reveal from the Center for Investigative Reporting, “right-wing extremists were behind nearly twice as many incidents” as terror acts associated with those identified as ‘Islamist domestic terrorism.’”

As islamophobic rhetoric grows more rampant and violent, we have to question where the threat is more prevalent — home or abroad?

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