Author : William A. Jacobson, Clinical Professor of Law , Cornell University
William A. Jacobson
Clinical Professor and Director of the Securities Law Clinic
Cornell Law School
154 Myron Taylor Hall
Ithaca, NY 14853-4901
William A. Jacobson is a Clinical Professor of Law and Director of the Securities Law Clinic. His academic interests include alternative dispute resolution, electronic evidence discovery, and the scope of arbitrator power in contractual arbitration.
He is a 1981 graduate of Hamilton College and a 1984 graduate of Harvard Law School. At Harvard he was Senior Editor of the Harvard International Law Journal and Director of Litigation for the Harvard Prison Legal Assistance Project.
Prior to joining the Cornell law faculty in 2007, Professor Jacobson had a highly successful civil litigation and arbitration practice in Providence, Rhode Island, concentrating in investment, employment, and business disputes in the securities industry, including many high profile cases reported in leading newspapers and magazines.
Professor Jacobson has a national reputation as a leading practitioner in securities arbitration, and is a member of the Board of Directors of the Public Investors Arbitration Bar Association, an organization of over 450 attorneys dedicated to protecting public investors. He frequently is quoted in national media on issues related to investment fraud and investor protection, and in the past has served as one of a small number of private practice attorneys who trained new arbitrators for the Financial Industry Regulatory Authority.
Professor Jacobson has argued cases in numerous federal and state courts, including the Courts of Appeal for the First, Fifth and Sixth Circuits, and the Rhode Island Supreme Court.
‘I’ll go over key features of the EO and address the main accusations being peddled.
There is no Muslim Ban, even though the Twitter hashtag #MuslimBan is being used by opponents of the EO.
There is a postponement of entry from 7 countries (Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen) previously identified by the Obama administration as posing extraordinary risks. That they are 7 majority Muslim countries does not mean there is a Muslim ban, as most of the countries with the largest Muslim populations are not on the list (e.g., Egypt, Indonesia, Malaysia, India, Pakistan, Bangladesh, Turkey, Nigeria and more).
Thus, the overwhelming majority of the Muslim world is not affected.
Moreover, the “ban” is only for four months while procedures are reviewed, with the exception of Syria for which there is no time limit.
There is a logic to the 7 countries. Six are failed states known to have large ISIS activity, and one, Iran, is a sworn enemy of the U.S. and worldwide sponsor of terrorism.
And, the 7 countries on the list were not even so-designated by Trump. Rather, they were selected last year by the Obama administration as posing special risks for visa entry, as even CNN concedes in passing:
‘The order bars all people hailing from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. Those countries were named in a 2016 law concerning immigration visas as “countries of concern.”
The executive order also bans entry of those fleeing from war-torn Syria indefinitely.
Seth Frantzman has an excellent analysis of this Obama administration background to the list. Please read the whole thing. The short version is that the Obama administration selected those countries — whose names are not mentioned in Trump’s EO.
Franztman provides this image of text signed into law on December 18, 2015, as part of the Omnibus Appropriations Act of FY2016.
(added) Sarah Harvard at Mic also recounts the history:
So, in a nutshell, Obama restricted visa waivers for those seven Muslim-majority countries — Iran, Iraq, Syria, Sudan, Somalia, Libya and Yemen — and now, Trump is looking to bar immigration and visitors from the same list of countries.
Frantzman notes that no one complained when the Obama administration selected these countries:
What? So there was a Terrorist Travel Prevention Act of 2015 two years before Trump? There was a kind of “Muslim ban” before the Muslim ban? But almost no one critiqued it in 2015 because it was Obama’s administration overseeing it.
So for more than a year it has been US policy to discriminate against, target and even begin to ban people from the seven countries that Trump is accused of banning immigrants and visitors from. CNN even hinted at this by noting “those countries were named in a 2016 law concerning immigration visas as ‘countries of concern.’” But why didn’t CNN note that the seven countries were not named and that in fact they are only on the list because of Obama’s policy? …
Because mainstream media has been purposely lying, either due to ignorance or because of unwillingness to read the document and ask questions and because they are too ready to accept “facts” without investigating. They want to blame Trump for a “Muslim ban” because they were ready with that script since last year.
Trump Business Connections
An offshoot of the “Muslim ban” claim is the claim that Trump deliberately excluded countries in which he does business.
This argument is made in order to claim Muslims are targeted even though most of the Muslim world is not affected.
The problem, of course, is that Trump worked off of the Obama administration’s list of particularly risky countries for visa entry. To lay the blame on Trump’s business interests is a lie, or as Frantzman puts it, fake news:
Most disingenuous, truly bordering on fake news, are the reports that claimed the seven countries were connected to Trump business interests, as if Obama’s DHS picked them because of Trump?
It’s an Absolute Ban
The “ban” is not without exceptions. There are categories of visa holders who still may enter even from those 7 countries:
Sec. 3(c) 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).
Also, the EO allows exceptions on a case by case basis from those 7 countries:
Sec.3(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, 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.
This Ends Refugees Coming to the U.S.
There is a halt to refugee processing, but it is temporary, for 120 days. Moreover, for people already going through the process, this is merely a delay not an ending, because they can resume processing once the system restarts in 120 days:
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) 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.
There are accusations that one particular provision discriminates. It gives preference to those fleeing religious persecution in countries in which they are a religious minority:
Sec. 5(b) 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 is being referred to as a de facto discrimination against Muslims because it mostly applies to Christians.
Well, that’s because Christians are the most persecuted religion in the Middle East, by Muslims. If there were a country in which Muslims were persecuted by another majority religion, they would get preference.
In fact, this religious persecution test has long been the case in refugee cases, but has been twisted to discriminate against Christians, as this September 2016 column by Eliott Abrams explained:
The headline for this column—The U.S. Bars Christian, Not Muslim, Refugees From Syria—will strike many readers as ridiculous.
But the numbers tell a different story: The United States has accepted 10,801 Syrian refugees, of whom 56 are Christian. Not 56 percent; 56 total, out of 10,801. That is to say, one-half of 1 percent.
The BBC says that 10 percent of all Syrians are Christian, which would mean 2.2 million Christians. It is quite obvious, and President Barack Obama and Secretary John Kerry have acknowledged it, that Middle Eastern Christians are an especially persecuted group.
So how is it that one-half of 1 percent of the Syrian refugees we’ve admitted are Christian, or 56, instead of about 1,000 out of 10,801—or far more, given that they certainly meet the legal definition?
The definition: someone who “is located outside of the United States; is of special humanitarian concern to the United States; demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group.”
Somewhere between a half million and a million Syrian Christians have fled Syria, and the United States has accepted 56. Why?
“This is de facto discrimination and a gross injustice,” Nina Shea, director of the Hudson Institute’s Center for Religious Freedom, told Fox News. Fox notes another theory: The United States takes refugee referrals from the U.N. refugee camps in Jordan, and there are no Christians there.
The EO does apply to dual nationals, but not in the way people imply, suggesting U.S. citizens would be barred from reentry.
Dual nationals who are U.S. citizens are not affected. The EO only applies to dual nationals from the 7 countries who travel on the passport of another (non-U.S.) country. The Wall Street Journalexplains:
It also applies to people who originally hail from those countries but are traveling on a passport issued by any other nation, the statement [by the State Department] notes. That means Iraqis seeking to enter the U.S. on a British passport, for instance, will be barred, according to a U.S. official. British citizens don’t normally require a visa to enter the U.S.
“Travelers who have nationality or dual nationality of one of these countries will not be permitted for 90 days to enter the United States or be issued an immigrant or nonimmigrant visa,” the statement said. “Those nationals or dual nationals holding valid immigrant or nonimmigrant visas will not be permitted to enter the United States during this period. Visa interviews will generally not be scheduled for nationals of these countries during this period.”
Green Card Holders
There are reports that holders of Green Cards from those 7 countries may not enter the U.S. This is partially true, but it will be handled on a case-by-case basis, according to CBS News:
Senior administration officials told CBS News Saturday that for permanent American residents — those holding green cards — from the listed countries, their readmittance to the U.S. will be done on a “case by case exemption process.”
There are anecdotal reports of people being detained while trying to enter the U.S., or pulled off planes, or not allowed to board. It’s hard to know whether these reports — if true — are the result of policy or confusion. As with any large bureaucratic endeavor, there seems to be administrative confusion, as the NY Times reported in a story recounting some of these reports:
But the weekold administration appeared to be implementing the order chaotically, with agencies and officials around the globe interpreting it in different ways.
It is true that Syrians seeking refugee status are barred entry, and that there is no current time limit on that. Rather, resumption will take place only after security assurance are in place:
Sec. 5(c) 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.
This is consistent with what Trump said during the campaign.
Conclusion: Policy Differences Don’t Justify Fake News
It is possible to criticize the EO and Trump visa/refugee policy without hyperbole and fakery. That opponents feel the need to make false and misleading accusations is a signal that they fear losing the policy argument on its merits.’