There has been a lot of speculation and confusion about what the newest executive order on immigration from the White House really means. Here is a compilation of some really good annotations from Vox, The New York Times and NPR on the executive order. With this much of an analysis and breakdown, there isn’t anything from the executive order that you can miss or not understand.

Below is the actual text from the Executive Order as published on the White House website.

Throughout you will find annotations from top journalists.

The annotations look like this and offer insights and explanations about what each item or section of the Executive Order means.

ORDER FULL TEXT

 

The White House

Office of the Press Secretary

For Immediate Release

“Immediate Release” – but it wasn’t published to the White House website until January 31th, 2017 – SimpleCitizen Staff

January 27, 2017
EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES

EXECUTIVE ORDER

– – – – – – –

Protecting the Nation from Foreign Terrorist Entry into the United States

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1.  Purpose.  The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States.  Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans.  And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

It invokes the attacks of Sept. 11, 2001- Most of the 19 hijackers on the planes that crashed into the World Trade Center, the Pentagon and a field in Shanksville, Pa., were from Saudi Arabia. The rest were from the United Arab Emirates, Egypt and Lebanon. None of those countries are on Mr. Trump’s visa ban list. –  Adam Liptak – NYT

This sentence starts like an uncharacteristic recognition of actual progress made by previous administrations. But the graciousness doesn’t linger. That line is just a set-up to establish an impossible measure of success: stopping all attacks. The measures here won’t fully stop attacks by foreign nationals who will be admitted in the future — but it may be a long while before an attack carried out by a Trump-era admittee reveals the lack of realism in such a standard.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

This executive order does not include any countries from which radicalized Muslims have actually killed Americans in the U.S. since Sept. 11, 2001. – Greg Myre – NPR International Editor.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States.  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.

The draft order said that hundreds of foreign nationals have been convicted or implicated. Could retreating to “numerous” signal a sensitivity to pesky fact-checkers who keep asking for follow-up documentation? “Numerous” could be satisfied with perhaps just a half dozen examples.  –  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

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.  

Over many decades, immigration screening has evolved toward focusing on specific past acts or other behavioral evidence, rather than on states of mind. There is good reason for this trend. Subjective or vague criteria lend themselves to highly uneven application, can be misused by biased adjudicators, and are not easily monitored by supervisors for error or abuse. It will be a considerable challenge for DHS and the State Department to design screening processes to test for “hostile attitudes.” And some of our founding principles conflict — for example, ensuring domestic tranquility and promoting robust free speech. Which is a foreign national supposed to privilege?   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia  

America’s founders were pro-immigration – The nation’s founding principles, as reflected in the Declaration of Independence, included dissatisfaction with what were said to be overly restrictive immigration practices. –  –  Adam Liptak – NYT

The United States cannot, and should not, admit those who do not support the Constitution [1.], or those who would place violent ideologies over American law [2.] [4].  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 [3.], 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.

1) What does it mean to insist that foreign visitors — for example, a two-week tourist from, say, Moscow — prove that they support the Constitution?

 

2) Some press accounts suggest that President Trump and his team have been looking for a basis to exclude persons who accept Islamic sharia law, on an apparent assumption that sharia always justifies violence against those deemed enemies of Islam. Some versions may fit that description, but many Muslims adhere to understandings of sharia that do not countenance such acts. Most devout religious believers, of any faith, if pressed, would say that God’s law ultimately outranks human law. (Compare Vice President Pence’s statement that he is “a Christian, a conservative, and a Republican — in that order.”)

 

Whenever a religious believer is applying for admission, then, much will depend on who gets to decide whether a particular religion amounts to a “violent ideology.” Muslim believers who adhere to the violent understanding of sharia will probably know enough to disguise their faith when questioned by a consular officer or a border inspector, whereas an ordinary Muslim tourist who adheres to a peaceable understanding of the doctrine could be ensnared by a simple statement that her faith includes acceptance of sharia obligations.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

3.)An interesting effort to portray the “hostile attitude” screening as a servant, at least in part, of feminist values. It parallels the reference later in this section to forbidding oppression based on sexual orientation.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

4.) It defines what non-U.S. citizens should believe – “There is no statutory requirement that noncitizens entering the United States support the Constitution,” said Peter J. Spiro, a law professor at Temple University. “The executive order seems to suggest that even temporary visitors like tourists and students should support the U.S. Constitution, which doesn’t make a lot of sense.”  –  Adam Liptak – NYT

Sec. 2.  Policy.  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.

Sec. 3.  Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.  

The order provides two ways to determine “countries of particular concern.” The swiftest, effective instantaneously, is the ban on entries from the seven countries imposed by subsection (c). The other involves a longer review of foreign states’ practices and then a listing of countries not sufficiently helpful in providing information for use in US admission decisions. That review process is spelled out in the other parts of this section. Apparently that process is also what will lead to the development of “extreme vetting.”    -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

(a)  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 order’s drafters apparently think that many states are not providing information we need to serve these two goals in our admissions process. It’s not clear from the public record just what kinds of information they think are missing — nor how realistic it will be to receive such information regularly or on request, given the widely varying record-keeping systems among the globe’s nearly 200 nations, plus the variety of national sensitivities about sharing sovereign information.

The US does have arrangements with a great many states for regular sharing of arrest records and other police information when a person applies for a visa to the other country — highly useful in protecting against criminals and terrorists. And many states regularly share information on lost or stolen passports — which can be used by gangs or terrorist organizations to create genuine-looking travel documents for their operatives.

Some backsliding from prompt sharing can occur as an information-sharing agreement ages. The charitable interpretation of this review process is that it will help get the laggard countries back to satisfactory cooperation. The less charitable interpretation is that this review process gives wide discretionary scope to block the nationals of countries from which entries are seen as undesirable for other reasons, but cloaking such a ban in what appears to be a more scientific evaluation.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia  

(b)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order.  The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

This section’s designation of the key players in the review-and-listing process may provide some modest hope that it will be a serious effort and not a disguised way to blacklist nations disfavored for other reasons. Gen. John Kelly, secretary of DHS, and former Sen. Dan Coats (R-IN), nominee for the director of national intelligence post, have a reputation as experienced and pragmatic public servants. The secretary of state is also involved in the review. Nominee Rex Tillerson’s approach to these sorts of issues is not currently apparent.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

(c)  To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section,

This ostensible reason is remarkably disingenuous in an order that imposes at least 11 new reporting requirements over the first year on DHS or State, plus many other perpetual half-yearly reports and other investigatory demands.    -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

Does Mr. Trump have the power to do this? This provision is the key to the power Mr. Trump claims. It says: “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 provision “gives the president capacious authority to deny entry to any alien or class of aliens,” Professor Spiro said. “No court has ever reversed a presidential order under it.” But he added, “In terms of the number of prospective immigrants involved, this is by far the most significant use of the power by any president.” Some critics say the order runs afoul of a later law that bars discrimination “in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.” The tension between the two laws has not been definitively resolved by the courts. Jennifer Chacon, a law professor at the University of California, Irvine, said that a challenge to the executive order based on the later law’s equal-protection principles was the most promising line of attack. In an opinion article in The New York Times, David J. Bier, an immigration policy analyst at the Cato Institute, a libertarian group, said Mr. Trump had at least violated the spirit of the later law. –  Adam Liptak – NYT

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) [1.], 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) [2], would be detrimental to the interests of the United States, and I hereby suspend entry [3] 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) [4].

It targets 7 countries;The countries are Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. –  Adam Liptak – NYT

After initial confusion over which countries this order actually refers to (because they are not listed here), the Department of Homeland Security issued a fact sheet that specified Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen. These countries were also specified in restrictions to the visa waiver program made by the Obama administration last year. Under the program, people from 38 countries can enter the U.S. with no visa whatsoever. These include most of our EU allies. Some 20 million people entered the U.S. under the visa waiver program in 2014, the Department of Homeland Security reports. Members of Congress had called for a tightening of the program, noting, for instance, that foreign fighters from several European nations have traveled to Syria to fight alongside ISIS and then returned to Europe. – Bryan Naylor – NPR Washington Desk Correspondent

As the order took effect, travelers who had previously been issued valid visas were detained at airports around the country, prompting protests and calls for their release. Judge Ann Donnelly in Brooklyn, N.Y., issued a temporary restraining order barring the deportation of as many as 200 people, citing the “irreparable harm” they would face. The mixed signals continue, however, as refugee advocates and resettlement groups say they lack guidance for helping refugees already in the pipeline, as NPR’s Deborah Amos reports. – Dana Farrington – NPR Politics Digital Editor

1) This is the first of many uses in the order of this extraordinarily broad provision of the Immigration and Nationality Act, section 212(f). It gives the president broad authority to “suspend the entry of any aliens or any class of aliens” through a proclamation that such entry would be “detrimental to the interests of the United States.”

This provision has been in the INA since that act was adopted in 1952, but its use has always been far more focused than what we see in this order — such as a 1999 Clinton proclamation suspending entry of Serbian government officials responsible for repression of civilians in Kosovo, or a 2011 Obama order suspending entry of persons subject to UN travel bans (generally because of human rights abuses or terrorist activity).

Very broad entry bans were considered in the weeks after the 9/11 attacks, but an October 2003 Justice Department draft proclamation memo expressed doubt about some parts of that draft, noting that “no President has invoked section 212(f) for all nationals of a particular country but has tied the suspension to subsets of nationalities that have engaged in specified activity.” No such ban on all nationals of a country was entered in response to 9/11, and research has not found any such examples thereafter — until this order.

2) It is not uncommon in executive orders or statutes to use these kinds of cryptic cross-references to other statutory provisions in identifying the nations subject to certain requirements. But this way of referring to the seven targeted countries, all predominantly Muslim, seems of a piece with the Trump team’s effort over the past several months to downplay the fact that travel bans are addressed to concerns about Muslims. Section 217(a)(12), passed in 2015 after the San Bernardino shootings, imposes additional restrictions on travel to the US by persons who have traveled to regions of the world with significant terrorist presence. The statute specifically names Iraq and Syria and provides a process whereby further countries can be added. At present, five others are also on the list: Iran, Libya, Somalia, Sudan, and Yemen.

It is a difficult legal question whether an immigration entry ban based on religion would be ruled unconstitutional, because of the great deference the Supreme Court usually affords to immigration decisions by the political branches, especially those that affect persons not yet admitted to the United States. But there can be no doubt that this order will have a highly detrimental impact on our broader strategies to counter Islamic extremism.

The order is a priceless recruiting tool for ISIS and similar movements, because it so easily fits their narrative that the United States is the enemy of all Muslims. And it will discourage tips and information from American Muslim communities — information that in the past has proved highly valuable to the thwarting of terrorist acts. Accordingly, the Bush and Obama administrations both strived to avoid all measures that could be painted as broadly anti-Muslim.  Much of that vital engagement with Muslim communities has been gravely undone by this order.

3) Press reports have suggested that the DHS issued initial guidance saying the ban did not apply to persons already admitted as lawful permanent residents who were returning from a trip abroad. This was apparently overruled by Steve Bannon and Steven Miller, top White House aides. Numerous reports state that even the top officials of the implementing departments were not consulted on the orders until very late in the process.

That is a surefire recipe for implementation problems, but the travel disruptions and general confusion we have witnessed after the issuance of this order may set a record for botched roll-outs. (Late Sunday, the White House reversed itself and said the restrictions would not apply to permanent residents with green cards.)

4) These are other types of diplomatic visas.   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

Some people are exempt. These exceptions are mostly for diplomats, people traveling to the United Nations in New York, and others involved in international organizations. –  Adam Liptak – NYT

(d)  Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, 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.

(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, 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) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

If any of the countries contacted under subsection (d) fail to provide the information we want within 60 days, they can be referred to the president to issue a 212(f) proclamation suspending travel by all of their nationals to the US. Sixty days is an exceptionally short time frame for concluding the sorts of diplomatic negotiations ordinarily needed to effectuate these sorts of requests. Nonetheless, the use of the word “recommended” should give the secretaries discretion to hold off on triggering that sanction while talks progress — and possibly even to permit them to decide not to list owing to other foreign policy reasons.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

The order has room to grow, the initial list may soon change and expand  –  Adam Liptak – NYT

(f)  At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.

(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 is potentially quite an important provision, especially to mop up some of the mess created by making this order instantaneously effective but without any agency involvement to prepare for implementation. Poignant hardship cases cropped up in the first hours of the order’s validity. According to press reports, border inspectors at JFK airport barred the entry of two Iraqis coming on special visas available, after lengthy vetting, to interpreters who face severe threats in Iraq because they had assisted US forces there. The inspectors reportedly told one of the arriving Iraqis that all Iraqi admissions were suspended and that the only person who could countermand that provision was President Trump. (Advance guidance on possible exceptions under the order was clearly defective — another sign of amateurish haste, especially regrettable as applied to persons who had risked their lives to assist the US military.) A habeas corpus petition to the federal court in Brooklyn produced a temporary restraining order late Saturday barring the removal in any manner of persons from the seven countries who arrive as part of the refugee admissions program or with validly approved visas or other lawful authorization.

The judge was primarily concerned about the application of the entry ban to persons already en route to the United States with valid visas or other authorization at the time of the order. Her restraining order (and similar ones recently issued in other districts) was meant to keep the individuals in the United States while the validity of the order is fully litigated. The plaintiffs allege that their detention and denial of entry violates the due process clause, the equal protection clause, applicable statutes, and treaties. As part of their equal protection claim, they assert that the executive order was motivated by animus against a particular religion. The judge’s brief order states that she found that the petitioners have a “strong likelihood of success” on their equal protection and due process claims.   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

(h)  The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.

Why so many reports on the heels of one another? This kind of overblown reporting requirement is far more characteristic of congressional statutes than executive orders — which may reflect the reported key role in the administration’s early moves by immigration experts who were formerly on the staff of Sen. Sessions. (Sessions, who is now awaiting confirmation as attorney general, has been a longtime leader in calling for greater restrictions on immigration.)   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

Sec. 4.  Implementing Uniform Screening Standards for All Immigration Programs.  (a)  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 section is phrased as though such requirements will be brand new to the implementing agencies. But in fact, mechanisms and processes meeting the section’s general descriptions have been in place for decades. They have, of course, been refined and augmented over time, especially with the infusion of resources after 9/11. This section probably should be read as an inflated way of tasking the agencies to continue looking for ongoing incremental improvements.   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

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? No adjudicator ever thought of these issues or needs before? Here we have another sign of the complete disconnect between actual existing processes and the contents of this order. The reporting secretaries could honestly say right now that their departments are in compliance with these specifications, with the possible exception of the requirement regarding the potential for positive contributions to society or to the national interest. This last item announces remarkably vague criteria that will be very hard to turn into operational guidance.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

(b)  The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.

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.  

A remarkably harsh and sudden provision, with no evidence of any factual developments that could conceivably merit this kind of immediate intervention. The only historical precedent was suspension of the refugee admission program after the 9/11 attacks. But those attacks had obviously revealed serious weaknesses in the sharing of needed intelligence among agencies and in the screening processes — for all immigration admissions, not specifically for refugees. All the 9/11 hijackers were present on nonimmigrant (temporary) visas; none were refugees. There is nothing remotely approaching an equivalent reason for a sudden across the board suspension now.  

Further, the order was made effective instantaneously — which led to chaotic impacts on processes already underway, including previously chartered flights. That kind of impact was wholly foreseeable to anyone who has been involved in the complex logistics of refugee resettlement, but again, the order’s drafting process apparently involved no one with practical experience in refugee admissions from DHS or State. A great scramble in the 24 hours after its issuance has now resulted in decisions to allow people already scheduled on flights over the next seven days to come in, plus a court decision, mentioned above, halting returns under the order of people already at US ports of entry with previously issued US travel authorization.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

It expands beyond the 7 countries,This provision suspends all admissions of refugees, not limited to the seven countries.  –  Adam Liptak – NYT

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.  

Refugees attempting to enter and settle in the U.S. are already subject to a vetting process that can take up to two years. First, they’re screened by the U.N. High Commission on Refugees. Those who are selected for possible entry to the U.S. are then subject to vetting by the National Counterterrorism Center, the FBI’s Terrorist Screening Center and the departments of State, Defense and Homeland Security. Their biometric information is checked and they undergo personal interviews with DHS officials. – Brian Naylor – NPR Washington Desk Correspondent

The current screening procedures for the refugee program are among the most comprehensive and thorough the US has ever applied. We will see whether the secretaries and the director have the courage to reflect that truth in their report — though of course there is room for them to recommend incremental additions and modifications.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

The screening process for immigrants is so thorough, long, and complex that SimpleCitizen has been able to build an entire, venture-backed business based on them. – SimpleCitizen Staff

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.

(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.

If you CTRL+F this document, you won’t find the words “Christian” or “Muslim.” But if you read closely, this is the section that indicates prioritizing Christians. How so? Because the seven countries affected by this order are all Muslim-majority countries. Also note that Trump himself indicated a preference for prioritizing Christians in an interview with the Christian Broadcasting Network. And former Trump campaign surrogate Rudy Giuliani told Fox that Trump first called it a “Muslim ban” but asked him to come up with a legal framework for it. Giuliani said he did, one based on “danger,” not religion. – Domenico Montanaro – NPR Political Editor & Digital Audience

This has been widely described as a special provision for Christian refugees from predominantly Muslim countries. It isn’t written that way (in keeping with an apparent overall administration strategy to make it hard to characterize this order as a Muslim ban), and the provision could have some wider application (e.g. to protect Baha’is fleeing Iran).

Exactly how the State Department operationalizes this “prioritizing” bears watching. It is a myth that Christians have been greatly disadvantaged in past refugee admissions. Washington Post fact-checkers provided a careful review of this issue. They found that there are some anomalies that may justify further scrutiny, but overall refugee admissions from the Middle East show a strong percentage of Christians.   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

 

The order prioritizes Christian refugees. As a general matter, this will give priority to Christian refugees over Muslim ones. Though framed in a neutral way, this part of the order may raise questions of religion-based discrimination. Mr. Trump has said that he means to favor Christian refugees.
That violates the First Amendment’s ban on government establishment of religion, according to David Cole, the legal director of the American Civil Liberties Union. “One of the critical questions with respect to the validity of executive action challenged under the Establishment Clause is its intent and effect,” he wrote in a blog post. “If intended to disfavor a particular religion, it violates the Establishment Clause.” –  Adam Liptak – NYT

(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.

What is it about Syrians that they draw such special scorn from high-ranking Republicans — first a host of governors in 2015 and now the president?  This ultra-harsh use of the nuclear 212(f) power bars Syrians until the president personally issues a new proclamation — even if the refugee processing review commanded by this order results in a finding by DHS, State, and the DNI that current screening is adequately protective.

The earlier draft order leaked to the press on January 25 contained a separate section calling for the establishment of “safe zones” in the surrounding region where Syrians could “await firm settlement” via repatriation or third country offers — seemingly a palliative (though problematic for many reasons) to counterbalance the harshness of the flat ban. But the final order dropped any mention of safe zones or other alternative solutions.   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

Syrians are ‘detrimental’ to U.S. interests, it says. This effectively expands the ban on immigrants from Syria.-  Adam Liptak – NYT

(d)  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.

This cap is far lower than the 110,000 refugees the Obama administration had said the U.S. would take in 2017. For 2016, the cap was 85,000. Pew Research Center has a breakdown of where those refugees resettled — 10 states took in 54 percent of them. – Dana Farrington NPR Politics Digital Editor

The UN refugee agency is confronting record-high global numbers of displaced people, but we are going to cut our admissions for this year by more than half. (Obama had set the authorized level for 2017 at 110,000, and 25,000 have already been admitted for this fiscal year.) The US has historically been the absolute leader in refugee resettlement. This cut will have ripple effects producing a reduction by other countries as well. And again Trump uses the nuclear option of 212(f) to countermand Obama’s directive.   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

This is how it restricts all refugees, it cuts the cap on refugees in half. Adam Liptak – NYT

(e)  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.

This important waiver provision parallels the case-by-case discretion granted to these secretaries in section 3(g) — and it is proving essential to recover some semblance of order in the early implementation of these refugee changes. The reference to persons already in transit was a last-minute addition reportedly based on a special push by career State Department officials (who were otherwise only minimally involved in or consulted on this order). It will now be used on a significant scale over the coming weeks.

Late Saturday, January 28, the White House was apparently persuaded to let previously chartered refugee flights continue for a few more days, which may allow more than 800 refugees in the pipeline to travel here. But if you are farther back in the queue, no such luck. Wait 120 days and hope that the review will produce a result that allows persons of your nationality to enter as refugees.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

(f)  The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.

(g)  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.

In the early draft of this order, leaked to the press, there was no provision addressing the state and local role. The late addition of this subsection would seem to reflect the influence of Vice President Pence. He had been a leader among Republican governors in trying to block Syrian refugees destined for his state, until litigation thwarted those efforts.

Nonetheless, it is notable that this provision does not say states should have a veto on such admissions — just “a role.” (They already have one, a carefully crafted advisory role, worked out as part of the enactment of the Refugee Act of 1980.) So again, we must wait and see about key details. Could it be that the vice president’s enthusiasm for state control might be receding, now that Christian refugees will probably claim a higher percentage of refugee admissions? Or maybe it’s just easier to see the benefits of ultimate federal control over migration decisions when you view the issue as a federal official.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

 

Sec. 6.  Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility.  The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.

This Section betrays little understanding of what those exercises of authority accomplish. After 9/11, successive statutes kept widening the definitions of “terrorist organization” and “material support” in the Immigration and Nationality Act, to the point where the provision of rice at gunpoint to an armed group occupying your village made you wholly inadmissible to the United States. It similarly blocked admission of some persons who had supported organizations (for example, in Burma) that were regarded as freedom fighters by US policy.

Instead of narrowing the provisions that produced these results, Congress chose to provide the secretaries of state and Homeland Security unreviewable discretion to grant exemptions — decisions which are declared to be immune to judicial review. That waiver process has alleviated some of the most extreme and absurd applications of the broadly worded bans. Carefully crafted exemptions now allow — but do not require — waiver of the bans, for example, for aid provided under duress, or for doctors and nurses who provide medical assistance to wounded combatants. Maybe we should be thankful that this section only requires “considering” rescission, rather than directing that result.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

Sec. 7.  Expedited Completion of the Biometric Entry-Exit Tracking System.  (a)  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.

We already have a biometric entry tracking system, taking fingerprints of all foreign arrivals at air and seaports and of many at land entry ports. It could profitably be expanded at the land borders, but the logistical challenges are considerable, given the scale of traffic there.

The building of a biometric exit capacity is seen by its supporters as the key to better enforcement of the law against visa overstays — but that widespread view is simply mistaken. Biometric exit capacity would cost billions for infrastructure changes at ports not now built to handle outbound screening — and it has been resisted by the airlines, who know that it would greatly impede smooth boarding procedures.

Better enforcement against overstays is a good idea, but current biographical exit tracking — based on name and, e.g., passport information — has been greatly improved as a result of post-9/11 reforms. We already have the capacity through those mechanisms to identify likely overstays with significant precision. The main further needed step needed is the assignment of significant resources to the old-fashioned investigative work required to actually find someone who has overstayed —  that is, more ICE agents on this task. Biometric tracking just tells you who has overstayed (with slightly greater accuracy than the current biographical system), but it says nothing about where the apparent violator can be found.   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

(b)  The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section.  The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order.  Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.

Sec. 8.  Visa Interview Security.  (a)  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.

After 9/11, Congress mandated that all applicants for visas between the ages of 14 and 79 be interviewed in person, but it allowed the secretary of state to grant waivers in certain cases, mainly persons traveling on diplomatic visas and repeat travelers who were interviewed earlier when given a previous visa. Thus, granting waivers does not mean noncompliance with the statute, and it is not obvious what prompted this demand from the president for suspension.

In any event, there is no specified length for the suspension. Maybe selective interview waivers can be restored quickly so as to avoid the greater delays that will surely result from suspension. Subsection (b) acknowledges that impact. But even though it calls for the hiring of consular fellows, that won’t do much, at least for a long while, to reduce wait times.  -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia  

(b)  To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected.

Sec. 9.  Visa Validity Reciprocity.  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.

Sec. 10.  Transparency and Data Collection.  (a)  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;

This wording reflects an important change from the executive order’s earlier draft. That document had called for compiling statistics on the number of “foreign-born individuals” involved in these various terrorism related crimes or activities. In other words, it would include naturalized citizens. The restriction to foreign nationals is a welcome change, but there is still reason to be concerned about exaggerated use of the data compiled under this section of the order to feed the demonization of foreign nationals living among us.   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

(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.

Nothing here would prevent the secretary from including in the report information on the offsetting long-term benefits derived from refugee admissions, and it would be good if that happens. The US refugee program has long emphasized early entry into the labor market, and most refugees promptly become contributing members of their new communities. Another unseen benefit of a robust US refugee program is fidelity to a vitally important part of this nation’s historical identity.   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

Sec. 11.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

In other words, Congress retains a very important role. Let’s hope members will find the courage to step forward and use these tools to ameliorate the disproportionately harsh effects of this poorly designed order.   -Vox – David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP