Judge Temporarily Blocks Part of Trump’s Ban on Refugees and Citizens From 7 Muslim-Majority Nations

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President Trump’s de-facto Muslim ban has begun. Photo: Mandel Ngan/AFP/Getty Images

On Saturday night in Brooklyn, New York, a federal judge temporarily blocked part of President Donald Trump’s sloppily implemented executive order banning citizens from seven Muslim-majority countries and all refugees from entering the United States. Trump signed the order for the temporary bans on Friday, apparently without adequately preparing government agencies for the change, which in turn stranded an unknown number of U.S. visa holders abroad, threw hundreds of thousands of permanent U.S. residents into legal limbo, and prompted a swift and widespread backlash amidst the sudden chaos.

Trump’s executive order also indefinitely bans entry for all Syrian refugees and establishes a religious test for refugees moving forward, prioritizing Christians and members of religious minority groups in Muslim countries.

On Saturday, after as many as 200 inbound foreigners with once-valid U.S. visas were detained at U.S. ports of entry on account of the ban, which was enacted while they were en route to America, the ACLU and other organizations filed for a class certification and argued against the ban in front of Judge Ann M. Donnelly of Federal District Court in Brooklyn. She subsequently ordered that the detained immigrants not be deported; though, she neither allowed them into the country nor ruled on the constitutionality of Trump’s executive action.

During the signing ceremony on Friday, Trump, who at one point during his presidential campaign said that all Muslims should be banned from entering the U.S., tried to frame the executive order as a way to establish “new vetting measures to keep radical Islamic terrorists out of the United States of America.”

“We don’t want them here,” said Trump. “We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas.”

The executive order also directs the secretary of State, secretary of Homeland Security, director of National Intelligence, and director of the FBI to come up with new immigration-screening procedures to meet Trump’s demand for what he has previously called “extreme vetting” measures. Among the criteria Trump ordered were that foreign nationals should not be admitted to the U.S. if they do not support the U.S. Constitution, “place violent ideologies over American law,” “engage in acts of bigotry or hatred,” or “would oppress Americans of any race, gender, or sexual orientation.”

The previous U.S. vetting process for visas — and especially for refugee visas — was already among, if not the most, stringent in the world, and the Trump administration has provided no evidence that this preexisting process had in any way failed.

The Muslim-majority countries included in the 90-day ban are Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen — all countries which a previous federal law had linked to concerns about terrorism. The order thus means that at least an estimated 134 million people are now temporarily barred from entering (or reentering) the United States, additionally affecting as many as hundreds of thousands of current U.S. visa holders. Dual nationals, or those who were born in one of the listed countries, but also have citizenship in another unlisted country, are also included the ban.

Furthermore, the text of the order indicates that the seven countries are only the first to be included in the ban, and that additional countries may be added later. According to CNN, a Trump administration official indicated the list would indeed grow and promised they would be “very aggressive” in determining which other countries would be added. That evaluation process will include a mandated 30-day review to determine which countries around the world do not provide “adequate information” about their citizens to the U.S., and the ban may thus become permanent for some or all of the affected countries should the Trump administration decide that those countries’ governments are unable or unwilling to provide that information. In the case of a country like Iran, which the U.S. has no formal diplomatic ties to and no way of exchanging such information, the ban may very well become permanent.

In the meantime, Trump’s ban list is also notable for the countries it excludes. Though Trump says the order is aimed at stopping foreign Islamist terrorists from gaining entry to the U.S., the ban does not include the countries from which terrorists who have already conducted terrorist attacks in the U.S. are from. Omitted from the list are Saudi Arabia, Pakistan, the United Arab Emirates, Egypt, Lebanon, Kuwait, and Russia — despite the fact that, starting with the attacks on September 11, 2001, citizens from those countries have been linked to terrorist attacks in the U.S. (Also missing from the list are Turkey and Afghanistan, countries in which multiple high-profile terrorist or militant attacks have been carried out in recent years; Pakistan and Egypt fit that bill as well.) In fact, as NPR points out, no citizens from the seven countries listed in the current ban have conducted any terrorist attacks in the U.S. over this same period. And as Bloomberg notes, the list also excludes Muslim-majority countries in which the Trump Organization, which Trump refused to divest from before becoming president, has business ties. At present, the Trump Organization has done or pursued business in Turkey, the U.A.E., Egypt, Saudi Arabia, and Azerbaijan.

The order also suspends the admission of all refugees for 120 days, during which time the Trump administration plans to do its own analysis on which country’s citizens pose the biggest supposed threat. The order additionally cuts the total number of refugees allowed into the U.S. during 2017 to 50,000 (down from more than 110,000 in 2016), and instructs the Homeland Security secretary to propose ways to allow states and localities a say in whether or not refugees are allowed to be settled in their jurisdictions.

The only people currently exempted from the blanket ban are holders of certain diplomatic visas, though the order indicates that individuals can be approved for entry by federal officials on a case-by-case basis. One law enforcement official told the Associated Press that there was also an exemption for foreigners whose entry is in U.S. national interest. Trump can extend both temporary bans as he sees fit, as well.

The Trump administration clearly did not have a plan in place regarding how to actually implement the vaguely worded executive order after it was signed. Instead, by all accounts, the rollout was a ham-fisted disaster. Reports indicate that government agencies weren’t made aware of the specifics of Trump’s order until Friday, which lined up the resulting chaos, confusion, and for many foreigners with U.S. visas, heartbreak. Agencies were instead left to scramble to interpret and apply the order on their own, and that not only led to dramatically different outcomes for different foreigners, but conflict with the inexperienced Trump administration. CNN adds that the order was drafted by a White House policy team, skipping over the typical guidance that would be provided by government officials with working knowledge of America’s immigration system. The White House didn’t even release the list of impacted countries until hours after the order had been signed.

By late Saturday afternoon, however, it was clear that Trump’s order would be interpreted by U.S. authorities in the broadest possible terms, with all foreign nationals from the seven countries, including current U.S. visa holders like green-card-carrying lawful permanent residents being unable to enter or board transportation for the U.S.

There were quickly numerous reports from various countries of distraught people with previously valid U.S. immigration documents being barred or removed from flights to the U.S., or being detained at U.S. ports of entry after having already been en route to America when the executive order went into effect.

The New York Times reported Saturday afternoon that an official message had gone out to all American diplomatic posts in the world instructing them to “halt interviewing and cease issuance and printing” of visas to people from the affected countries. Existing visas seem to have already been indefinitely suspended as well. Though it appears that anyone already in the U.S. will be allowed to stay, they may not be able to reenter the country if they travel abroad during the ban. According to the Associated Press, the U.S. Customs and Border Protection agency has also been notifying airlines about passengers whose visas are now suspended, and has told them to keep legal U.S. residents from the ban-listed countries off of U.S.-bound flights, though that instruction may have been a mistake. A Trump administration official then told Politico on Saturday that affected green-card holders who are outside the country will have to go through a review process and apply for reentry waivers on a case-by-case basis, apparently after being allowed to travel to the U.S., though many hadn’t been allowed to make that trip as of Saturday. It is also not clear how long that secondary screening process will take, or if the Trump administration has yet established guidelines or staffing levels to handle it.

As it turns out, CNN reports that the decision to bar legal permanent residents was made by Trump advisors Steve Bannon and Stephen Miller, who seem to have been the driving force behind the order, and who overruled an earlier DHS legal interpretation that permanent residents were exempt from the ban. As a result of the conflict and confusion, mixed messages to the airline companies from confused federal agencies exacerbated the chaos, and agencies and airlines weren’t on the same page until sometime on Saturday.

Propublica reports that hundreds of thousands of legal U.S. residents may be impacted, and could be permanently unable to return to the U.S. should they already be abroad, or choose to leave the country during the ban. According to DHS reports, 500,000 citizens from the seven countries have received green cards from the U.S. over the past decade alone, and 25,000 citizens from the seven countries have been issued temporary employment or student visas in the last few years. Iran and Iraqi nationals, who account for nearly half the green cards over the ten-year period, look to be particularly hard hit by the ban.

Two Iraqi citizens — both refugees who had been granted admission to the U.S. and were already en route to the U.S. when Trump’s ban went into immediate effect — were detained at John F. Kennedy Airport in New York early Saturday morning. One of the Iraqi men, Hameed Khalid Darweesh, had worked for the U.S. Army as an interpreter following the 2003 invasion, and had been targeted by militants as a result. Lawyers for the two men quickly filed a writ of habeas corpus demanding their release, and along with several organizations including the ACLU and the National Immigration Law Center, also filed a motion seeking class certification for all refugees and immigrants who had been suddenly detained at ports of entry on account of Trump’s order. Exactly how many people have been caught in such limbo remains unknown, but the ACLU estimated in court on Saturday night that as many as 200 people had been detained due to the ban. Indeed there were reports from several U.S. cities of numerous other individuals and families being detained or deported, and many of those stories did not have happy endings for the would-be immigrants:

On Saturday afternoon, Darweesh was subsequently released from detention, apparently having been approved for entry via the aforementioned case-by-case scenario. Darweesh told reporters outside J.F.K. that “America is the land of freedom” and celebrated those who came to the airport to support him:

The other Iraqi man, who had been granted a visa to join his wife, who had worked for a U.S. contractor in Iraq, was also released on Saturday evening, but not before a large protest against the detention of immigrants at the airport had amassed and continued into the evening. Similar protests in support of the immigrants, and in opposition to Trump’s order, sprung up at other American airports on Saturday as well.

In addition, the ACLU and others’ case against Trump’s order resulted in an emergency hearing on Saturday night in Brooklyn. During that hearing, Judge Donnelly agreed with ACLU lawyers that deporting the detained immigrants could cause irreparable harm to the travelers, and issued a stay in the case, temporarily blocking the U.S. government from deporting any more of the detained immigrants. This does not mean the immigrants can leave the airport, nor does it permanently block their deportation, but it was a momentary win for opponents of Trump’s order and bought them and the detained immigrants some much needed time. The ruling did not, however, weigh in on the overall constitutionality of Trump’s order.

To that end, the Council on American-Islamic Relations says it will challenge the constitutionality of the executive order, noting that “there is no evidence that refugees — the most thoroughly vetted of all people entering our nation — are a threat to national security,” and insisting that Trump’s act is “based on bigotry, not reality.” It is not clear how Trump’s order will stand up to legal scrutiny as the Immigration and Nationality Act both allows the president to “suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” while also stating that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” CNN reports that the White House never even submitted the order to the Office of Legal Counsel for legal guidance, so if the order has any legal liabilities, the White House may not even be aware of them yet.

As Politico highlights, the sloppiness of the order was also apparent in its imprecise language. For instance, the reference to religious minorities could or could not apply to sects of majority religions, like in the case of Shiite Muslims, who are often persecuted in majority Sunni-Muslim countries. Then there is the citing of “foreign nationals” in the order but not dual-nationals, making it unclear whether or not someone with citizenship to both one of the banned countries and another non-banned country will be allowed into the U.S. The State Department eventually confirmed that no, dual-nationals would not be exempt from the ban, meaning it would affect an even larger set of people.

The executive order also attempts to add an unprecedented religious test to America’s refugee-admission process. Per the order, the secretary of State and DHS secretary are “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.” Looking at President Trump’s comments on the campaign trail, as well as in an interview on the Christian Broadcasting Network on Friday, priority status will be awarded to Christians in Muslim-majority countries. “We are going to help them,” Trump insisted of persecuted Christians in Syria. Trump then falsely claimed that it was “impossible, or at least very tough” for Christians to gain entry into the U.S., but much easier for Muslims, under the previous refugee policy. Neither Trump nor his administration provided any evidence to support that argument.

According to the Pew Research Center, nearly half of the refugees the U.S. admitted in the 2016 fiscal year were Christian (and the rest were mostly Muslim). About one percent of the Syrian refugees that the U.S. admitted were Christian, though there is no clear evidence that Syrian Christians were discriminated against in the process, and Syria’s Muslim majority has faced the brunt of the war’s violence and upheaval. The vast majority of Syrians admitted to the U.S. in 2016 were women and children and already faced the U.S. government’s most intensive and complex background-check process, which typically takes as much as two years to complete.

Unlike an earlier leaked draft of the executive order, the final order signed on Friday did not include any language about establishing safe zones to house Syrian refugees either inside Syria or in another Middle Eastern country — something Trump has promised to do to address the plight of Syrian refugees trying to escape their country’s brutal civil war.

Meanwhile, Iran has now responded in kind, barring U.S. citizens on Saturday from entering the country in retaliation for Trump’s executive order. It remains possible that other countries may follow suit, either making it harder for Americans to obtain visas, or banning them outright. Another possibility is that affected countries will refuse to accept their citizens if and when they are deported by the U.S.

Looking at response from the business community, Google has reportedly told its traveling staff members, abroad for either work or vacation, to return to the U.S. immediately on account of fears over Trump’s order, which may impact nearly 200 Google employees. Facebook president Marc Zuckerberg has also spoken out against the order, and many other companies which rely on foreign talent, particularly in the tech sector, are starting to speak out against Trump’s order.

Dating back to Trump’s numerous Islamophobic comments during his presidential campaign, anti-terrorism analysts have also repeatedly warned that any move by the U.S., or comments from its leaders, that could be interpreted as anti-Islam may become useful fodder for Islamist recruiting efforts, and it’s possible they could damage America’s standing with key Middle East allies as well. In other words, Trump’s order, rather than reducing terrorism against the U.S., as it is supposedly intended to do, may have the opposite effect.

In addition to the legal challenges, condemnation of the executive order has been swift. Senate Minority Leader Chuck Schumer called the order “backward and nasty,” adding that “tears are running down the cheeks of the Statue of Liberty tonight as a grand tradition of America, welcoming immigrants, that has existed since America was founded, has been stomped upon.” Celebrated Pakistani humanitarian Malala Yousafzai, who survived an assassination attempt at the hands of Taliban militants when she was 15, said she was heartbroken that Syrian refugee children were being “singled out for discrimination.”

Numerous advocacy and aid groups are expressing their outrage as well. Oxfam America president Raymond Offenheiser, speaking with the the Times, warned that the refugees affected by the order “are among the world’s most vulnerable people — women, children, and men — who are simply trying to find a safe place to live after fleeing unfathomable violence and loss.” Also, thousands of academics, including 12 Nobel laureates, have signed a petition against the order, calling it “inhumane” and “detrimental to the national interests of the United States” in that it “damages American leadership in higher education and research.” The order, which was signed on International Holocaust Remembrance Day, also angered some Jewish organizations and drew the ire of Anti-Defamation League president Jonathan Greenblatt who called it “tone deaf.”

Asked by reporters for his thoughts about the first full day of the ban after another signing ceremony on Saturday, President Trump dubiously claimed that everything was going according to plan.

“It’s not a Muslim ban, but we were totally prepared,” Trump insisted. “It’s working out very nicely. You see it at the airports, you see it all over.”

Indeed:

This post has been updated throughout to include additional information and context.

Judge Blocks Trump’s Ban on Refugees and Muslim Nationals