Too much attention is being paid to a 90-day travel ban in President Donald Trump’s Executive Order Protecting the Nation From Foreign Terrorist Entry into the United States (Order). While it is a serious matter, the temporary suspension of admitting aliens from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen into the United States is just the tip of the iceberg. Other provisions in the Order may cause much more serious consequences.
Section 3(a) of the Order directs the Secretary of the Department of Homeland Security (DHS), in consultation with the Secretary of the Department of State (DOS) and the Director of National Intelligence, to determine what information is 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.” This applies to all countries, not just the seven that are subject to the 90-day suspension.
Those officials have 30 days from the date of the Order to report their “determination of the information needed for adjudications and a list of countries that do not provide adequate information (emphasis supplied).”
Section 3(d) directs the Secretary of State to “request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.” Section 3(e) explains the consequences of failing to comply with this request. Note that this also applies to all countries, not just the seven that are subject to the 90-day delay.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, ...) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs (emphasis supplied).
This is far more serious than the 90-day ban on immigration from the seven designated countries. With some exceptions, President Trump is going to stop immigration from every country in the world that refuses to provide the requested information. And this ban will continue until compliance occurs.
Does the President have the authority to do this? Yes, he does. The main source of the president’s authority to declare such suspensions can been found in section 212(f) of the Immigration and Nationality Act, the pertinent part of which reads as follows:
(f) 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.
The Order permits the Secretaries of DOS and DHS to waive the restrictions on a case-by-case basis when it is in the national interest.
DHS Secretary John Kelly has applied this waiver to the entry of lawful permanent residents. In a statement released on January 29, 2017, he says, “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”
The ACLU Executive Director, Anthony D. Romero, claims that the Order is “a Muslim ban wrapped in a paper-thin national security rationale.”
That claim is not persuasive even when it is just applied to the 90-day ban for the seven designated countries. If the objective of the Order had been a Muslim ban, it would not have been limited to those seven countries. According to the PEW Research Center, only 12% of the world’s Muslim population lives in those countries, and only Iran is among the 10 countries that have the largest Muslim populations.
That claim is even less persuasive when it is considered in the context of the directive to apply the ban to every country that refuses to provide needed information with no regard to whether a country has Muslims in it.
If the ban on admitting nationals from the seven designated countries is extended beyond 90 days, it will be because those countries have refused to provide information needed to determine whether individuals from their countries are who they claim to be and are not a security or public-safety threat, not because most of their citizens are Muslims.
We do not know yet which countries, if any, will be included in a Presidential proclamation that would prohibit the entry of foreign nationals from countries that do not provide the requested information, a prohibition that would last until compliance occurs, nor do we know what type of information they would be refusing to provide. It may turn out that they would be refusing a reasonable request for information that really is needed.
Nolan Rappaport’s immigration experience includes seven years as an immigration counsel on the House Judiciary Committee and twenty years writing decisions for the Board of Immigration Appeals.