On Immigration [With Update]

This past week, President Trump signed the following three Executive Orders regarding immigration:

• Border Security and Immigration Enforcement Improvements (Click Here)
• Enhancing Public Safety in the Interior of the United States (Click Here)
• Protecting the Nation from Foreign Terrorist Entry into the United States (Click Here)

Because President Trump campaigned heavily on border security and taking a more aggressive approach to counter-terrorism, should we be surprised that his first week included these three Orders?  I think it's safe to assume the timing and substance of this policy roll-out is deliberate and strategic.  Additionally, I wouldn't be surprised if we soon learn about a plan for many refugees to be placed in so-called "safe zones" located either in their country, or a neighboring one.  Finally, we just learned that President Trump will likely announce his nominee for the Supreme Court tomorrow.  If and when that happens, guess which issue will no longer be on the front page?

Although all three Executive Orders (as well as his most recent official statement) should be considered when evaluating President Trump's immigration actions and overall policy, the last one (Protecting the Nation from Foreign Terrorist Entry) has gained the most attention over the past 48 hours.  So let's dive into that specific Executive Order.

Below you will find relevant provisions from the Order, along with commentary by me.  Although a bit long, I hope you will find it a worthwhile data point in your journey to better understand this specific issue as well as the larger debate our Nation is having.

First, here is relevant background language taken from the Order that identifies its purpose and intent:

It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.

The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

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.

Is any of this language controversial?  I don't think so.  It's simply a statement outlining basic American values while realizing the obvious threat that exists.  If any specific individual, or general culture, would not adhere to these principles, why would or should our Nation admit him, her, or them?  That said, I think President Trump would have been well served to include statements sympathetic to the plights of immigrants, especially recognizing that America is a Nation of immigrants.  The U.S. is, and must always be a beacon of freedom and individual liberty for the entire world.

The challenge for President Trump, or any national leader, is to balance that principle of welcoming openness with the legitimate interests relating to security and basic sovereignty.

Of course such statements of principle and intent with the Executive Order have no real bearing on the new policy, so let's now examine the relevant details.

But first, before we proceed, consider the following thought experiments as you wrestle with this or any other similar issue:

• Can you identify and attempt to understand non-discriminatory, reasonable and rational justifications put forth to justify the policies?
• Would your opinions be different if the actions were taken by a different leader or a different political party?
• Would your opinions be different if the actions were taken immediately after 9-11?

Below are the relevant policy provisions from the Order as well as some commentary by me.

Let's start with the requirement for our government to conduct a review of what information is required from other countries in order to adjudicate admission to the U.S.

Here's the language from the Order:

The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

The Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

After the 60-day period expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall recommend to the President a list of countries for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (with exceptions) from countries that do not provide the information requested.

Is there controversy here?  Is this really a change in the law, or simply a healthy reset of existing rules and procedures?  Should we as a Nation be able to determine what information is required in order to consider admission?  As it relates to the information we, in practice, actually receive from other countries, just how credible or otherwise adequate is it?  Which of these countries do, or do not, have functioning systems - or even governments - to obtain the information our Nation would need to conduct a sufficient examination?  Does the U.S. even have functioning diplomatic missions in some of these areas?  How confident are we that, even if we had a process for adequate or enhanced vetting of individuals, the information we are reviewing is accurate?  Thinking back to my time in Iraq evaluating claims and conducting other business, forged and duplicate paperwork was rampant.  Are similar practices in play as it relates to immigration examiners?

These are just a few questions to consider when balancing all the varied interest at play.  When exercising the heavy burden of keeping our citizens safe, many more questions and considerations - known and unknown - must be weighed by our leaders.

Let's next examine the controversial provision that suspends entry for 90 days persons from Syria, Iran, Iraq, Libya, Somalia, Sudan, Yemen, and Libya.

Here's the specific language from President Trump's Order:

To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), 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, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, 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).

The Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

Note that these countries are not identified by name in President Trump's Executive Order, but rather by reference to prior legislation signed by a previous Congress and President, and via subsequent designation as a "country of concern" by a prior Administration.  In fact, by clicking here, you can see a February 18, 2016, press release from President Obama's Department of Homeland Security that by name specifically designates these seven nations as "countries of concern."

How do you compare the Order's exact language with many of the headlines of major news outlets?  Has the reporting been fair and balanced?

Is the 90 day suspension heartless and a betrayal of basic human dignity, or is it a reasonable measure that arguably wasn't implemented very well?  How would or should we assess legitimate security concerns, and how should we balance them with the obvious negative impact on the lives of the many good and law-abiding immigrants who legally reside in the U.S.?  Are the security concerns even legitimate, or are they blown out of proportion?  And if you are concerned about how this policy impacts specific individuals, are you satisfied with the waiver program to allow the Secretaries of State and Homeland Security to admit and provide benefits when appropriate?  If not, how do you think it could be improved to meet your satisfaction?  When answering that question, it is important to balance the legitimate government interest specified in the background and purpose language I identified above.

At what point do you believe a foreign national should be considered sufficiently vetted?  Should the vetting be reapplied prior to reentry if the individual is returning from a country with ongoing hostilities against the U.S.?  What level of concern, if any, do you have that individuals could be radicalized during a trip to a hostile country?  And should ones personal beliefs be the standard used by government officials charged with keeping our Nation safe?

And why these particular seven countries?  How would you describe conditions within the borders of these countries?  How well do their governments and societies function?  Do they function?  What is the state of relations each country has with the U.S.?  Do any of the realities apparent in these countries concern you?  If so, and you disagree with President Trump's position, what type of vetting would you recommend?  What military operations are ongoing in these countries, and how do they impact our examination and vetting process?

Most of us have also heard commentary about President Trump's business dealings around the world, accusing him of a conflict of interest because he did not suspend admission from other countries with whom his companies do business.  For two primary reasons, this criticism seems shallow and disingenuous in this case:  1) these seven "countries of concern" were previously identified by the Obama administration; and 2) these seven countries have particular lawlessness (or in the case of Iran, general hostilities) that would not be conducive to Trump business dealings, or the typical business activities of any company or individual.

Let's now turn our attention to our general immigration adjudication processes.

From President Trump's Order:

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.

What is the controversy here?  Do any of the listed procedures seem overly burdensome or inappropriate?  Which of them are we currently not utilizing in the evaluation process?  Why aren't we?

Next, let's look at another provision that is triggering a lot of controversy:  The 120 day suspension of the entire Refugee Admissions Program.  When evaluating the merits of this policy, recall that in 2011, President Obama suspended for six months the refugee program as it related to Iraqi foreign nationals.

Here's the language:

The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.

Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest -- including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship -- and it would not pose a risk to the security or welfare of the United States.

Is this provision suspending the overall refugee program for 120 days unusually harsh, or is it reasonable for an incoming administration concerned about immigration to pause, review, and reset the process?  I know many people have voiced concerns about the unique circumstances for specific individuals, but it appears most of these cases would be eligible for admission pursuant to specific authority granted to the Secretaries of State and Homeland Security.  I'll be interested in seeing how this waiver process is implemented.  Click here for first report of waiver program that will admit close to 1,000 refugees in the first week. Let's continue to monitor. 

The next provision purports to grant priority to refugee claims based on religious-based persecution.

From the Order:

Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, 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. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

This provision highlights the religious-based persecution provision of what is already the current law relating to refugee admissions.  But here, the intent is to grant this specific subset class of victims priority status to some degree.  We'll have to wait and see how this one plays out as well, understanding that the provision will not be triggered until after the 120 day suspension is complete.

The Executive Order then focuses on Syria:

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.

Ahhh, Syria.  On many levels, what a mess - what a tragedy.  Knowing the chaos of that country, the obvious challenges in obtaining reliable information on particular individuals, and the concerns addressed by President Trump throughout the campaign, should anyone be surprised by this indefinite suspension of our refugee program as it relates to Syria?  Also, for perspective, here are the numbers of Syrian refugees admitted to the U.S. over the past five years:  29 Syrian refugees in 2011; 31 in 2012; 36 in 2013; 105 in 2014; 1,682 in 2015, and over 13,000 in 2016.  Why do you think we had such a significant increase in the past two years?  Do you have sufficient confidence in the program to admit such high numbers from Syria?  How concerned are you that ISIS and other terrorist groups have apparently declared their intent to use our immigration programs and/or porous borders to send fighters to our country?

Let's now consider the number of refugees overall.

From the Order:

Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.

President Trump is placing a 50,000 refugee cap for 2017.  You ask how does that number compare to previous years?  Some perspective can be found at the State Department website.  In the past 20 years, the data shows lows between 27,000 - 28,000 refugees admitted in 2002 and 2003, a few additional years with numbers under 50,000, and then numbers generally between 55,000 and 75,000 since 2008.  Last year, the number of refugees spiked to 85,000.

You ask what role the States and local jurisdictions play in the ultimate placements of refugees?

The Executive Order contemplates a greater role:

It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions 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. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.

This provision will be interesting to observe play out.  As it relates to immigration placement, what type of greater role for states, counties, and cities is being considered?  What is their current role, if any?  If the States are given greater authority, what happens when likely disagreements occur?

Do you support the use of biometic tracking?  If so, you'll like this provision:

The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.

What concerns do you have with using biometric tracking on travelers entering and exiting the U.S.?  I know other countries do it.  It would likely be helpful so long as relevant databases are communicating with each other.  Is there a downside?

Here's an interesting provision mandating adherence to a law that requires in-person interviews of certain nonimmigrant visa applicants:

The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.

Is this controversial?  The law requires in-person interviews, but apparently a program exists that permits the waiver of the interview requirement?  What percentage of applicants actually do sit for an interview, and how many obtain visas without the in-person interview?  On what basis, and what are the procedures involved in approving a waiver of the interview?  Does the waiver swallow the rule?  Am I the only one curious about the data on the waiver program?

Up next, a review of other countries' programs to determine whether they are abiding by reciprocity agreements.

The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable.

This data could be very interesting.  Which countries, in practice, might not be operating with the same standards?  If not, how do they differ?  Will they change?  The "shall adjust" language is noteworthy when considering possible U.S. responses.

Now, for some transparency, see the following provisions from the Order:

To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter:

(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;

(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and

(iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and

(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.

(b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.

Anyone have a problem with this information being collected and made publicly available?  With all the misinformation surrounding these topics, I think it would benefit the national conversation.  What other information would you like collected and released to the public?

The Courts begin their review of the Executive Order

As many already know, a federal judge in New York took immediate action temporarily halt the removal of individuals with approved refugee applications, holders of valid visas, and individuals from the seven "Countries of Concern" who are otherwise legally authorized to enter the U.S.  We should hear more this week about this case, and any others that might pop up, to include the DoJ response.  Here's the relevant language from the court order:

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.

To close the topic of immigration, and help you assess whether President Trump is a strong, rational leader, a heartless xenophobe, or something in-between, it's probably helpful to consider the following points:

• In his 1995 State of the Union address, President Clinton's stated philosophy toward illegal immigration wasn't much different from President Trump.  Click here to hear the relevant portion of the speech, as well as the subsequent standing ovation.  What has changed since 1995, or is the outrage simply explained by partisanship?
• As mentioned above, President Obama took action in 2011 to suspend the processing of refugee applications from Iraq.  Click here for a 2013 ABC News report about the suspension two year earlier.
• Click here for a new Rasmussen poll that shows 57% and 56% of likely voters supporting the two more controversial provisions of the Executive Order, with 33% and 32% disagreeing.  Click here to view the specific questions asked. 
• As it relates to so-called sanctuary cities, a University of California Berkeley poll conducted in September 2015, provided the following findings:  82% of Republicans, 73% of Democrats, and 71% of Independents opposed sanctuary cities.  Similarly, sanctuary city policies were opposed by 80% of Whites, 75% of African- and Asian-Americans, and 65% of Latinos.
• And finally:  With the fears surrounding Islamic/Islamist terrorism, and considering the primary purpose of the Executive Order is to keep our Nation safe and secure, it's probably worth a few minutes of your time to review the Heritage Foundation's interactive timeline that depicts all the Islamist terror plots against the U.S. homeland since 9-11.  Click here to review the timeline.

And one more item:  I just saw President Trump's statement yesterday (Jan 29) emphasizing a few points of contention from his Executive Order issued last week.  Click here to read the statement.

That's all for now.  Please let me know your thoughts.

Updates below posted on February 5, 2017

Many continue to refer to President Trump's Executive Order as a Muslim ban?  Do you agree?  As noted above, the controversial portion of the Order applies to seven predominantly Muslim countries.  Did you know that these seven countries make up about 12% of the the 1.6 billion Muslims living throughout the world?  Did you know that the 209 million Muslims living in Indonesia, the combined 344 million Muslims living in India and Pakistan, or the Muslims residing in any other country, are not impacted by this provision?  For more information on the Muslim population throughout the world, please click here.

If you want to more fully understand the arguments relating to President Trump's Executive Order, I recommend reading the Department of Justice's legal brief to U.S. Court of Appeals for the Ninth Circuit in opposition to a federal court's (Western District of Washington in Seattle) decision Friday night to temporarily halt execution of the Order nationwide (found by clicking here).  The brief addresses many of the issues surrounding the debate, and includes the following exhibits that too are noteworthy for your consideration:

• The Executive Order, dated January 27, 2017
• The Order from the U.S. District Court in Massachusetts that, after originally granting a temporary and more limited halt to the Executive Order's implementation, ultimately concluded there were no legal grounds for the Court to cease execution of the Order, dated February 3, 2017.
• The Temporary Restraining Order by the federal court in Seattle that has halted execution of the Executive Order, dated February 3, 2017.
• White House guidance on the Executive Order, dated February 1, 2017 (clarifying that the Order does not apply to lawful permanent residents of the U.S.
• Transcript of Hearing before federal court in Seattle.

I am interested in reading the response to the Department of Justice's motion to the Ninth Circuit.  Unfortunately, the Temporary Restraining Order from the federal court in Seattle does not provide substantive legal argument on why the Executive Order is unconstitutional or otherwise unlawful.