Executive Order on ‘Muslim Ban’ – What Do We Know

By Hassan Ahmed

More information will come tomorrow once Trump’s executive order is released. From there, immigration experts around the country will dissect it and be able to tell much more about who it will affect and how.

Buzzfeed reports that a career government official noted that the EO is expected to “institute a blanket suspension of visas issued to certain countries with majority Muslim populations, temporarily suspend the refugee resettlement program, and institute what Trump has called “extreme vetting,” or as one person called it, “a Sharia litmus test.”

Reuters reported “limited immigration for refugees “and some visa holders from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.””

CNN reports that this is only part 1 of a multi-day immigration executive order rollout. The Post reports the impending order may also include toughening of enforcement along the Mexican border.

So: decreased refugee admissions, blanket visa suspension from certain countries, extreme vetting, enhanced enforcement. Just like in the commercials.

FIRST: Be aware of the contours of each proposal-order. Muslim ban, extreme vetting, halting/reducing refugee resettlement are all distinct concepts.

SECOND: Remember that any “list of countries” can be added to, and subtracted from. This has Kobach written all over it.

THIRD: These things have been done before. This is not unprecedented. George Bush halted all refugee admissions after 9/11. Jimmy Carter banned all Iranian immigration after the hostage crisis [Editor’s note: here is more analysis on the differences between Trump’s policies and Carter’s] . Moreover, people from these countries are already rarely granted visas: I hear their stories almost every day. I don’t mean to minimize the monstrosity, only to contextualize. If you go further back into history, you’ll find blatantly racist policies that consistently withstood constitutional scrutiny. The point is: exclusion of certain groups is nothing new.

FOURTH: Lawsuits are a necessary part of any broad resistance strategy, but know that we are up against a stalwart doctrine: plenary power. Courts are extremely reluctant to tell Congress (or the Executive Branch) who they can or cannot let into the country. However, it is not absolutely hands-off; cases such as Zadvydas v. Davis show that there is some extremely limited judicial review. This must be (long-term) amplified across the circuits to expand judicial power, and do away with the plenary power doctrine over immigration (as argued by Prof. Motomura back in 1990). There is virtually NO CHECK on executive power when it comes to immigration. Do you want to see where legalized bigotry begins? In immigration. Because no one is there to stop it.

It may not be the right time to sue broadly – the plenary power is vast, and deeply embedded in our law. The proposed orders are a tame exercise of executive power. I say we wait until they cross a line – any line.

FIFTH: That leaves attacking the SOURCE of these policies, which smells like white nationalism. The administration’s cozy relationship with groups like Federation for American Immigration Reform (FAIR) [Julie Kirchner, the former executive director of the anti-immigrant hate group, FAIR, has been named chief of staff at U.S. Customs and Border Protection (CBP), the largest federal law enforcement agency of the United States Department of Homeland Security (DHS). Since its founding in 1979, FAIR has push an agenda centered on a complete moratorium on all immigration to the United States and defined by vicious attacks on non-white immigrants. Its founder was white nationalist John Tanton, an avowed eugenicist who created the modern anti-immigrant movement in the United States.] which were founded and grew up in white nationalism gives ample anecdotal evidence. This investigation into white nationalism must happen before it becomes accepted as the status quo. We need to haul these advisors in to testify before Congress, make them show their foul ideology: no more secrets. We need to make it politically expensive for anyone to be seen within 100 yards of them. It is no coincidence that FAIR tried to seal boxes of their founder Dr. Tanton’s papers until 2035.

You know that old repeated line about first they came for the Muslims? This is the beginning of it. I’m calling out to my black brothers and sisters. I’m calling out to my Latino brothers and sisters. I’m calling out to allies across the board who don’t believe in the genetic superiority of one race. This is a different flavor ice cream, but it comes out of the same box.

SIXTH: Since the Women’s March, the administration has attacked science, facts, and the right to clean water. Now this. There is a drastic need to take this to the streets. The administration is obviously trying to stack the three branches of government in its favor: 114 federal judicial vacancies (including one on SCOTUS), and they already control the legislative and executive. We are witnessing the birth of policies that will outlast Trump. Demonstrations do matter, and they do change the course. We might not get good policies – but we can make sure to slow down the creation of bad ones.

SEVENTH: If you are an immigrant, and are already here, it remains to be seen how these policies will affect you. You must use the existing law (and what remains of it) to the maximum possible extent. I met today with someone who now has an issue with their green card application who could have filed for TPS but didn’t. Last week a Yemeni whom I had to beg to do the same thing. Others who never bothered to “extremely vet” themselves before filing for a green card or citizenship. Others who figure it’s easier to disappear into the undocumented population. The importance of correct, sound, and targeted advice has never been more important. This visa revocation and charge under INA 212(a)(7)(A)(1) is nothing new…just happening ramped up. The right advice for people is to seek counsel. Every case is different. A 589 may be the right choice…but not for everyone. If already in the US a person might be eligible file an extension of B-2 status or change of status to F-1, E-2, or may qualify for an L-1A.

The best advice is to be prepared before you travel. Don’t be lulled into a false sense of security because your visa always worked before.

On a more personal note: My mind is racing back to my hundreds of Muslim clients from these countries. I’ve played with their children and eaten shwarma and drank chai with them. Misery-laughed with them over heightened scrutiny, Muslim Processing Time, and debating whether advising to shave the beard would be legal advice or not.

It’s on.

Hassan is the founder and principal of the HMA Law Firm.  Licensed to practice in Maryland and Virginia, fluent or proficient in eight languages besides English, known and respected among his peers for his knowledge of the law, research and writing ability, trial skills, and having earned a reputation among his peers as the “go-to” attorney in matters of immigration law, Hassan is an aggressive, dynamic and knowledgeable lawyer who passionately believes in fighting for his clients.