I have worked with refugees and asylum seekers since 1991. I cannot even tell you how many I have had the privilege to represent, and I believe that I have only encountered two cases of fraud in more than 20 years. I have never encountered even a single client with any links to terrorism. The refugees and asylum seekers who I have met have been fleeing for their lives – sometimes from terrorists.
The Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” signed on January 27, 2017 overreaches executive branch powers (under the plenary power doctrine, immigration policy is shared between the legislative and executive). Moreover, aspects of the order are both unconstitutional and violate United States’ international legal obligations under the Refugee Convention (which we ratified in 1980). This comes at a time when there are more forcibly displaced people (65+ million) than ever before in human history.
- Refugees not returned to a place where they will be persecuted (non-refoulement);
- There is an individualized determination of persecution on account of one of five grounds (race, religion, nationality, membership in a particular social group, or political opinion), NOT just religion; and
- Refugees are not discriminated against.
Here are some specific reasons why the Executive Order is bad policy and should not be enforced:
1. Suspends U.S. Refugee Admissions Programs (USRAP).
- The order suspends all refugee admissions for 120 days. Refugees are perhaps the most thoroughly vetted individuals who enter the United States. Refugee processing often takes up to 36 months and includes background checks, biometrics, and interviews with several federal agencies. I have met many people stuck in limbo in refugee camps, waiting to be cleared to join immediate family members in the United States. Even following the 9/11 terrorist attacks, refugee admissions were suspended for less than three months.
- It does not appear that clear instructions regarding implementation were conveyed to the Border & Customs Protection — those who had to enforce the order this weekend — leading to chaos and lawsuits. Under the order, exceptions can be made on a case-by-case basis for national interest, if the person does not pose a risk and is a religious minority facing religious persecution OR diplomats OR if the person is already in transit and denying admission would cause a hardship.
- The order reduces the number of refugee admissions by more than half, to 50,000. The President, in consultation with Congress, sets each year the refugee admission number. In fact, during President Obama’s administration, the United States had dropped historically low in the numbers of refugees resettled. The goal this fiscal year was to admit 110,000 refugees. The government’s fiscal year began October 1, and we have already admitted 29,895 as of January 20, 2017. Under this new Executive Order, we will admit only about 20,000 additional refugees before the end of the fiscal year on September 30. That means that 60,000 refugees who have already been vetted will remain in life and death situations.
- Once resumed, the United States will prioritize the religious persecution claims of minority religious groups. Purportedly, this is to prioritize the claims of persecution of Christian minorities, but Muslims are also a persecuted minority in some countries. What does this mean for them?
- The order suspending the United States Refugee Admissions Program for 120 days directs Department of Homeland Security to determine how state and local jurisdictions can have greater involvement in determining placement resettlement in their district. This will allow states and cities unprecedented authority to determine whether they will resettle any Muslim refugees. Bills have already been introduced in states such as North Dakota and South Dakota to ban all resettlement unless approved by the state legislatures.
2. Bans Syrian Refugees
The order halts the processing and admission of all Syrian refugees. Indefinitely. One of the worst human rights crises on the planet is happening in Syria. Over the past few years, millions of people have fled from both the forces of President Bashar Al-Assad (supported by Russian airstrikes) and ISIS. The United States finally stepped up last year and accepted 10,000 refugees — far, far less than most Western countries. To date, the majority of refugees resettled from Syria to the United States have been women and children.
3. Bans Entry of Nationals of Muslim Majority Countries
Both non-immigrant (tourist, student, etc.) and immigrant (including legal permanent residents, at least for the initial roll-out of the order) from seven countries (some friends, some foe) — Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen — are banned from entry for at least 90 days. (The order also notes that other countries and immigration benefits may be added to the banned list.) Courts have already temporarily blocked the implementation of part of this order based on the First Amendment Establishment clause (which prohibits the government from preferring or disfavoring a religion) and the Fourteenth Amendment Equal Protection clause. But part of the order also calls for the exclusion of individuals who “would place violent ideologies over American law” or “who engage in acts of bigotry or hatred, including persecution of those who practice religions different for their own.” That is incredibly vague and potentially discriminatory. Moreover, there has been enhanced screening for everyone coming from countries with high levels of terrorism since 9/11.
4. Requires In-Person Interviews for All
The order suspends the Visa Interview Waiver Program (VIWP), primarily used for people who had been vetted, were considered a low-security risk, and were on renewable employment-based visas. The requirement for in-person interviews for non-immigrant visa applications will create huge backlogs at embassies and consulates and slow down the process for anyone applying for a visa (including family members of legal immigrants, asylees, and refugees). Many of The Advocates for Human Rights’ asylum clients come to the United States on visitor or student visas; this processing backlog will prevent these people the ability to escape persecution in their countries, leaving them vulnerable and unsafe.
5. Screens ALL for Immigration Benefits
This is policy by fiat, going beyond congressional authority. While screening standards are already in place for identifying fraud, etc., the Executive Order directs agencies to create a process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest.” These are entirely new and subjective standards, and it is not clear how anyone could implement them. They are NOT statutory requirements for any immigration benefit (except a national interest visa).