tag:theconversation.com,2011:/uk/topics/seven-countries-ban-35480/articlesSeven countries ban – The Conversation2017-02-10T14:52:40Ztag:theconversation.com,2011:article/726482017-02-10T14:52:40Z2017-02-10T14:52:40ZTrump loses appeal, but travel ban fight isn’t over yet<p>Thursday’s <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf">appellate court opinion</a>, which denied President Donald Trump’s appeal concerning his immigrant ban executive order, was unsurprising. It cautiously declined to upset the status quo, temporarily continuing the prevention of the executive order’s enforcement nationwide. But it also allowed for further briefing and argument. </p>
<p>As a constitutional law professor and former Justice Department litigator, I see the court’s reasoning as suggesting deep skepticism of Trump’s position and, at the same time, spotlighting the main issues for the further appeals that will inevitably follow. </p>
<h2>The order, then the ban</h2>
<p>Among other things, <a href="https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states">the executive order</a> bans for 90 days the entry of any nationals from seven majority Muslim countries. It imposes a 120-day ban on admitting refugees, and an indefinite ban on Syrian refugees. Further, priority is to be given to members of minority religions in their home state once the ban on admitting refugees runs out. This would have the effect of favoring Christians.</p>
<p>After a Seattle federal judge <a href="http://www.seattletimes.com/seattle-news/politics/federal-judge-in-seattle-halts-trumps-immigration-order/">ordered</a> a nationwide halt to enforcing the executive order on Feb. 3, the <a href="http://www.npr.org/2017/02/06/513794175/doj-files-brief-in-challenge-to-reinstate-trumps-immigration-executive-order">Trump Justice Department petitioned</a> the three-judge appeals court to lift the injunction. The case went up on appeal on an emergency, preliminary basis. </p>
<h2>Violating due process</h2>
<p>In its Feb. 9 opinion, the panel of the Ninth Circuit Court of Appeals found it likely that the states of Washington and Minnesota had legal standing to sue, and that the executive order violated the due process rights of at least some of those it affected. It reserved the question of whether the executive order violated the separation of church and state, but noted these are “serious allegations” that raise “significant constitutional questions.”</p>
<p>However, because it was an emergency appeal by the government to immediately undo a temporary lower court order, the government had a heavy legal burden. The court’s preliminary decision that the government failed to meet that heavy burden doesn’t necessarily mean the court couldn’t change its mind later. Nonetheless, the tenor of the opinion sounded skeptical of the Trump position. </p>
<p>Almost half the opinion dealt with the government’s procedural objections about whether the case even belongs in court.
<a href="http://caselaw.findlaw.com/us-supreme-court/268/510.html">Citing</a> <a href="https://supreme.justia.com/cases/federal/us/427/160/case.html">Supreme Court cases</a>, the appeals court ruled that the state universities represented by the state government lawyers could indeed sue on behalf of foreign-born students, faculty and staff who could not study, teach or work because of the travel ban. And, while the appellate judges acknowledged that courts should show deference to the president on <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf">national security and immigration issues</a>, they sharply rejected the Trump administration’s gutsy and novel argument that the courts had no power to review the executive order, citing <a href="https://www.law.cornell.edu/supct/html/06-1195.ZS.html">several</a> <a href="https://www.supremecourt.gov/opinions/11pdf/10-699.pdf">recent</a> Supreme Court <a href="http://caselaw.findlaw.com/us-supreme-court/533/678.html">cases</a>.</p>
<p>On the merits, the panel came down most strongly on due process issues. The Constitution’s <a href="https://www.law.cornell.edu/constitution/fifth_amendment">due process clause</a> says that before the government can restrict someone’s freedom of action, it must give affected persons advance notice and a hearing. </p>
<p>Even noncitizen aliens have due process rights, <a href="https://supreme.justia.com/cases/federal/us/553/723/opinion.html">if they are in the U.S.</a>. The appeals court stated that the executive order most <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf">clearly violates due process</a> because it affects holders of lawful visas and “green cards” who are present in the U.S., or who have been in the U.S. and are only temporarily abroad.</p>
<p>Lawyers for the government attempted to argue that the executive order didn’t really apply to green card holders, or even, ultimately, visa holders. They argued there was no need for a court order against enforcement. But the judicial panel was having none of it. In a hint of skepticism toward the administration’s reliability, the court expressed doubt that anyone other than the president had the authority to change the effect of the executive order. It said it couldn’t be sure the government lawyers’ take on the executive order would “persist” for long, “in light of the government’s shifting interpretations of the Executive Order.”</p>
<p>More fundamentally, the appeals court ruled, even people who the government clearly views as falling under the executive order – like those present in the U.S. illegally – <a href="http://caselaw.findlaw.com/us-supreme-court/533/678.html">still have due process rights</a>. </p>
<p>The panel was more cautious regarding the establishment clause claim, where the state governments argued the ban clearly targeted Muslims, thus violating <a href="https://supreme.justia.com/cases/federal/us/456/228/case.html">separation of church and state</a>. It did say it was proper to give weight to the “numerous statements by the president about his intent to implement a ‘<a href="http://fortune.com/2016/06/28/donald-trump-muslim-ban/">Muslim ban</a>,’” but it was not prepared to say much more at this early stage of the proceedings.</p>
<p>Crucially, the appeals court declined to narrow the nationwide scope of the Seattle judge’s injunction against enforcing the executive order. </p>
<p>In a “sauce for the goose is sauce for the gander” moment, the judges noted the recent case where a single federal judge had <a href="https://www.law.yale.edu/yls-today/news/ny-dreamer-challenges-nationwide-immigration-injunction">controversially blocked</a> enforcement nationwide of an Obama <a href="https://casetext.com/case/texas-v-united-states-13">executive order on immigration</a>. The conservative appellate panel in that 2015 case had ruled that a court order covering only that court’s part of the country would lead to an unwise “fragmented” immigration scheme rather than a “uniform immigration law and policy.”</p>
<h2>Left unsaid</h2>
<p>The opinion is also notable for what it did not discuss. </p>
<p>At <a href="http://www.realclearpolitics.com/video/2017/02/07/listen_live_oral_arguments_for_state_of_washington_v_trump.html">oral argument</a>, the parties had raised the possibility of remanding the case back to the trial court for the taking of more evidence. There was no mention of this in the final opinion. </p>
<p>Oral argument also dealt with a <a href="https://www.law.cornell.edu/uscode/text/8/1152">federal statute</a> barring discrimination based on national origin regarding visas. I <a href="https://theconversation.com/the-best-legal-arguments-against-trumps-immigration-ban-72196">recently argued</a> this was the strongest argument against the executive order, but the opinion contains no discussion of it. This might be because that legal claim would not affect non-visa holders like refugees and persons with green cards. </p>
<p>Ultimately, this is a clear defeat for the Trump administration. But, given the necessarily preliminary nature of these emergency proceedings, it may not be a permanent one. </p>
<p>Trump can continue to argue before this three-judge panel, appeal their decision to the full <a href="http://www.ca9.uscourts.gov/content/view_seniority_list.php?pk_id=0000000035">29-judge-strong</a> Ninth Circuit Court of Appeals, and, ultimately and predictably, move on to the Supreme Court. Given its fast-track nature, the case will likely reach the Supreme Court before the current vacancy is filled.
</p><img src="https://counter.theconversation.com/content/72648/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Mulroy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The court’s reasoning suggests deep skepticism of Trump’s position and spotlights the main issues for the further appeals that will surely follow.Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of MemphisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/716102017-02-10T04:15:23Z2017-02-10T04:15:23ZWhy Trump needs the civil servants he wants to fire: Lessons from abroad<p>Like most Republicans, President Donald Trump has made it clear he intends to “<a href="https://www.nytimes.com/2017/01/02/opinion/donald-trump-bureaucracy-apprentice.html?_r=0">fix</a>” the federal government by “draining the swamp.” Traditionally, the GOP has aimed to <a href="http://www.rollcall.com/news/policy/gop-readies-cuts-federal-workforce-trump">cut the size</a> of the federal government. The president’s freeze on <a href="http://www.nbcnews.com/politics/white-house/trump-issues-executive-orders-freezing-federal-hiring-targeting-trade-n710886">hiring federal employees</a> is a first step in that direction. And he might go a step more.</p>
<p>The administration is showing signs that it views the bureaucracy as primarily implementers, not creators, of policy.</p>
<p>Evidence of this shift in approach can be seen in White House Press Secretary Sean Spicer’s response to a <a href="https://www.bostonglobe.com/news/politics/2017/01/31/state-department-dissent-letter-draws-signatures/bAoEtqeqEwyfUQoC2uzDgL/story.html">letter of dissent</a> signed by nearly 1,000 State Department employees against Trump’s travel ban to the U.S. from seven Muslim majority countries. He <a href="https://www.washingtonpost.com/news/post-politics/wp/2017/01/30/spicer-diplomats-opposed-to-immigration-ban-should-either-get-with-the-program-or-they-can-go/?utm_term=.9915a87def0b">said</a> they should “either get with the program or they can go.”</p>
<p>Trump abruptly ended Sally Yates’ term as attorney general for <a href="http://www.cnbc.com/2017/01/30/acting-us-attorney-general-tells-doj-lawyers-not-to-defend-trumps-travel-ban.html">refusing</a> to defend the order.</p>
<p>This demand for obedience is most often seen in competitive authoritarian regimes, which I <a href="https://adnankrasool.files.wordpress.com/2017/02/rasoolfairbanks-working-paper-version-2.pdf">study</a>. Such regimes often look like democracies, but don’t actually function like them. Think Turkey and Malaysia, for example.</p>
<p>Such a confrontation between leaders and civil servants leaves the system gridlocked and in chaos. It’s worth understanding the vital role bureaucracies play in the smooth functioning of a government by looking at examples from other countries.</p>
<h2>Lessons from Japan and Turkey</h2>
<p>After the second World War, Japan made efforts to rebuild its economy and revamp its pre-war institutions. Leaders sought to better serve a new democratic country with significantly limited global influence. Civil service reform was a crucial part of this rebuilding process. As a result of these reforms, starting in the 1960s, Japan was effectively <a href="http://www.tokyofoundation.org/en/articles/2008/the-bureaucratic-role-and-party-governance-symposium-report-3">governed</a> by a bureaucracy, while the Liberal Democratic Party ruled.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/156313/original/image-20170210-8631-9oubjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/156313/original/image-20170210-8631-9oubjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/156313/original/image-20170210-8631-9oubjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/156313/original/image-20170210-8631-9oubjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/156313/original/image-20170210-8631-9oubjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/156313/original/image-20170210-8631-9oubjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/156313/original/image-20170210-8631-9oubjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Japanese Prime Minister Eisaku Sato’s third Cabinet is inaugurated in Tokyo on Jan. 14, 1970.</span>
<span class="attribution"><span class="source">AP Photo/T. Sakakibara/H. Huet</span></span>
</figcaption>
</figure>
<p>Prime Minister Eisaku Sato, who was in power most of the ‘60’s and early '70’s, empowered bureaucrats at government departments. For example, under his leadership, the responsibilities of the Ministry of International Trade and Industry were expanded to include building an export-oriented economy that created jobs. This work built the foundations for the modern Japanese economy. </p>
<p>Politicians were able to take credit for economic programs that worked, and distance themselves from those that were unpopular, but necessary. The LDP <a href="http://www.newsweek.com/how-did-ldp-hold-so-long-79091">deflected criticism</a> of unpopular budget cuts, and the restructuring of basic public services implemented by the Ministry of International Trade and Industry. </p>
<p>This division of responsibility allowed nonelected officials to conduct the day-to-day tasks of governing and delivering public services. Meanwhile, party leaders focused on the big-ticket populist items, such as resisting China’s acceptance into the U.N., and committing to a nonnuclear Japan. This allowed the regime to focus on promises that helped win reelection. Civil servants had the autonomy to run their departments in the most efficient way without political blow-back. </p>
<p>The case of Turkey is more complex. It also went through a similar period during the 1980s in which its government – both in authoritarian and democratic forms – relied on the bureaucracy to lead industrialization and development <a href="https://www.wsws.org/en/articles/2000/09/turk-s27.html">efforts</a>.</p>
<p>In the late '70’s, Turkey was on the verge of civil war triggered by economic collapse. Democratic government led by Suleyman Demeril unsuccessfully tried to launch a last ditch series of economic reforms which left Turkey unable to buy even the <a href="http://documents.worldbank.org/curated/en/651731468761064368/pdf/multi0page.pdf">basic commodities</a>. At risk of complete economic breakdown, General Kenan Evren seized power and put in place an authoritarian regime to rule Turkey in 1980.</p>
<p>The new regime pushed a series of <a href="http://www.merip.org/mer/mer122/turkeys-economy-under-generals?ip_login_no_cache=f28c0c3d54a20b0853ae553827d0540c">sweeping changes</a>, including banning unions, controlling wages, banning political parties and removing agricultural subsidies. The push for industrialization was the cornerstone of this strategy. What the regime failed to do was effectively implement the strategy and trust state institutions to do their work. The policies had little input from the bureaucrats who expected to implement them. As a result, real wages were depressed and farming communities suffered losses without subsidies. </p>
<p>In state-sanctioned elections of 1983, Turgat Ozal was elected as prime minister against President Evren’s preferred candidates. Ozal was able to roll back the harsh economic policies and actively push for industrialization. He was able to bring back the professionalization of the bureaucracy by giving them a larger role in policy creation and implementation. Buoyed by the new mediator, newly independent government institutions <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010748">pushed austerity measures</a> that cut government spending and incentivized foreign investment. Heavy government subsidies for large industries in new economic opportunity zones stabilized and spurred growth in Turkey’s economy.</p>
<p>Meanwhile President Evren, who had <a href="https://www.ft.com/content/02b4a6e4-f6ef-11e4-a9c0-00144feab7de">advocated against</a> this approach to governance approach between 1980 and 1983, seemed to be ready to <a href="http://journals.sagepub.com/doi/abs/10.1177/03058298900190020601">take credit</a> for it by the time 1987 rolled around.</p>
<p>The common pattern observed in the cases of Turkey and Japan is the government’s reliance on an independent civil service, especially in times of political turmoil. </p>
<h2>Ruling and governing: Marriage of convenience?</h2>
<p>The new administration in the U.S. is challenging the autonomy of the civil service by limiting its role in policy creation and implementation. Trump’s election mandate, with significant support from Congress, is to “change things up” in Washington and push for stable economic growth. To achieve this, the administration will need to find a way to work with the civil service and allow it to do its job, not impede it. </p>
<p>Like in Turkey and Japan, the bureaucracy evolves in times of political change. Especially in times of severe political partisanship, reliance on bureaucracy to deliver on campaign promises increases. Trump’s administration needs the technical policy making expertise of bureaucrats to deliver on those promises.</p>
<p>But what is becoming increasingly clear with the <a href="https://theintercept.com/2017/02/01/homeland-security-inspector-general-opens-investigation-of-muslim-ban-rollout-orders-document-preservation/">inefficient rollout</a> of Trump’s travel ban is that his administration may lack willingness to work with relevant bureaucrats to <a href="https://www.nytimes.com/2017/02/05/us/politics/trump-white-house-aides-strategy.html?_r=0">implement its vision</a>. </p>
<p>If the administration continues down this path, we may witness more botched implementation of orders like the travel ban. The quicker the administration reformulates its strategy to work with civil servants, the faster we can expect meaningful policies and their implementation.</p><img src="https://counter.theconversation.com/content/71610/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adnan Rasool does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Trump administration may do well to make a friend of the federal bureaucracy it’s so intent on gutting, according to an expert who studies the role of civil servants in government.Adnan Rasool, Ph.D. Candidate, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/723262017-02-09T03:47:17Z2017-02-09T03:47:17ZSyrian refugees ‘detrimental’ to Americans? The numbers tell a different story<p>President Donald Trump wants to close the door on Syrian refugees, barring them indefinitely from settling in the U.S. </p>
<p>In an <a href="https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states">executive order</a> signed on Jan. 27, the president wrote: </p>
<blockquote>
<p>“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.”</p>
</blockquote>
<p>USRAP stands for United States Refugee Admissions Program.</p>
<p>In light of the president’s executive order and the continued debate over the status of refugees in the U.S., I’d like to <a href="https://theconversation.com/syrian-refugees-next-door-56111">reexamine</a> two questions: What are the chances that a Syrian refugee might live in your community? And what is the risk that he or she would be a terrorist?</p>
<h2>Details of the executive order</h2>
<p>First, let’s consider what the president’s executive order would do.</p>
<p>In addition to ending the settlement of Syrian refugees in the U.S. indefinitely, the president’s order would stop any refugee from entering the U.S. for 120 days. </p>
<p><a href="http://www.unrefugees.org/what-is-a-refugee/">A refugee</a> is someone who has been forced to flee their home by violence or war. </p>
<p>The <a href="https://www.dhs.gov/news/2017/01/29/protecting-nation-foreign-terrorist-entry-united-states">order blocks</a> the entry of citizens from seven majority Muslim countries for a minimum of 90 days and caps admissions of refugees from all countries for 2017 at 50,000. That’s a decline of nearly 30 percent from 2015 when 70,000 refugees were settled and a decline of 41 percent from 2016 when 85,000 refugees were admitted.</p>
<p>The order gives no timeline concerning how the USRAP will be updated and made more secure. </p>
<p>There have been protests and <a href="http://freepressonline.com/Content/Home/Homepage-Rotator/Article/A-Collection-of-Responses-to-President-Trump-s-Executive-Order-Banning-Refugees-Muslim-Immigrants/78/720/50287">several legal challenges</a> to the order. </p>
<p>The Ninth Circuit Court in San Francisco rejected an appeal by the Department of Justice to <a href="https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html?_r=0">restore the order</a> on Feb. 3, thus upholding an earlier decision by the Federal District Court in Seattle. </p>
<p>Nevertheless, the administration’s characterization of <a href="http://www.independent.co.uk/news/world/americas/donald-trump-muslim-ban-judge-suspended-reacts-big-trouble-tweet-immigration-bob-ferguson-a7562671.html">refugees as “dangerous”</a> and tweets by Trump that warn of “bad people” freely pouring over the border continues to cloud an emotionally charged debate. </p>
<p>So what are the facts?</p>
<h2>Why are people fleeing?</h2>
<p>Syrians are being displaced by a civil war that has dragged on for more than five years. A major destabilizing factor in their country has been the spread of IS into Syria from Iraq. Airstrikes to take territory back from IS have leveled many Syrian cities. </p>
<p>According to the <a href="http://www.unhcr.org/en-us/news/latest/2016/6/575e79424/unhcr-report-sees-2017-resettlement-needs-119-million.html">UNHCR,</a> the numbers of people pushed out of their homes continues to outpace the resources available to support resettlement. </p>
<p>Since 2011, Turkey has accepted more than <a href="https://www.amnesty.org/en/latest/news/2016/02/syrias-refugee-crisis-in-numbers/">2.7 million Syrian refees</a>. However, Syrian refugees are increasingly turning away from Turkey and choosing instead to travel first to Libya and then risk crossing the Mediterranean Sea in hopes of finding <a href="http://www.pewresearch.org/fact-tank/2016/11/02/italy-on-track-to-surpass-greece-in-refugee-arrivals-for-2016/">security in Italy</a>. This may be a way to avoid the difficulties created by <a href="http://www.migrationpolicy.org/news/paradox-eu-turkey-refugee-deal">Turkey’s agreement with the EU</a> to manage the flow of refugees into Europe. </p>
<p>Finding a place for all of these people to resettlement is critical. Writing for the <a href="http://www.unhcr.org/en-us/news/latest/2016/6/575e79424/unhcr-report-sees-2017-resettlement-needs-119-million.html">UNHCR</a>, Leo Dobbs notes “Resettlement does not only provide Syrian refugees with a durable solution but has often been a critical and life-saving intervention for refugees with urgent protection needs and compelling vulnerabilities.” </p>
<h2>How many Syrians are in the US?</h2>
<p>From the beginning of the Syrian conflict in 2011 through November 2015, a total of 2,174 Syrian refugees were settled in the U.S. <a href="http://www.acf.hhs.gov/programs/orr/resource/refugee-arrival-data">according to the Office of Refugee Resettlement</a>. They represented fewer than 0.0007 percent of the U.S. population. </p>
<iframe src="https://datawrapper.dwcdn.net/7KTtA/1/" frameborder="0" allowtransparency="true" allowfullscreen="allowfullscreen" webkitallowfullscreen="webkitallowfullscreen" mozallowfullscreen="mozallowfullscreen" oallowfullscreen="oallowfullscreen" msallowfullscreen="msallowfullscreen" width="100%" height="642"></iframe>
<p>In 2016, an additional <a href="http://www.vox.com/world/2017/1/30/14432650/global-refugee-crisis-refugee-ban-trump-9-questions">12,587 Syrian refugees</a> were resettled in the U.S. While it was a record number for this country, for comparison, Germany settled nearly <a href="http://www.unhcr.ie/about-unhcr/facts-and-figures-about-refugees">half a million</a> refugees in the same year. By the end of 2016, the total number of Syrian refugees settled in the U.S. was 12,587 + 2,174, or 14,761, about .0046 percent of the country’s population. </p>
<p>In other words, the chances that a Syrian refugee would move next door to you are statistically zero. That’s true with or without Trump’s ban.</p>
<p>To put the small number of Syrian refugees who have been settled in the U.S. in context, the Mariel boatlift resettled approximately <a href="http://www.migrationpolicy.org/article/cuban-immigrants-united-states">125,000 Cubans</a> in 1985. And between 1975 and 1995, <a href="http://www.unhcr.org/3ebf9bad0.html">about 2 million Vietnamese refugees were relocated to the U.S.</a>. </p>
<h2>Is any too many?</h2>
<p><a href="https://www.theatlantic.com/international/archive/2017/01/trump-immigration-ban-terrorism/514361/">Not one Syrian refugee </a>in the U.S. has been arrested or deported on terror related charges. </p>
<p>This may be because Syrian refugees face intense scrutiny before they are allowed to enter the U.S. They <a href="https://www.whitehouse.gov/blog/2015/11/20/infographic-screening-process-refugee-entry-united-states">are vetted</a> in a process that can take up to <a href="https://www.washingtonpost.com/posteverything/wp/2017/02/01/refugees-are-already-vigorously-vetted-i-know-because-i-vetted-them/?utm_term=.55d9133a5923">18 months</a>. Once registered as a refugee by the UN, refugees face several rounds of interviews that include the U.S. State Department and the Department of Homeland Security as well as background checks, fingerprinting, health screening and <a href="https://www.nytimes.com/interactive/2017/01/29/us/refugee-vetting-process.html?_r=0">classes in American culture</a>. </p>
<p>After careful vetting, refugees are settled by one of nine agencies: <a href="http://cwsglobal.org/">Church World Service</a>, <a href="http://www.ecdcus.org/">Ethiopian Community Development Council</a>, <a href="http://www.episcopalmigrationministries.org/">Episcopal Migration Ministries</a>, <a href="http://www.hias.org/">the Hebrew Immigrant Aid Society</a>, <a href="http://www.rescue.org/">International Rescue Committee</a>, <a href="http://lirs.org/">Lutheran Immigration and Refugee Service</a>, <a href="http://refugees.org/">US Committee for Refugees and Immigrants</a>, <a href="http://www.usccb.org/about/migration-and-refugee-services/">United States Conference of Catholic Bishops/Migration and Refugee Services</a>, and <a href="http://refugeecrisis.worldrelief.org/">World Relief</a>. </p>
<p>No refugee is randomly placed into a community. Rather, agencies settle refugees in planned, <a href="http://www.migrationpolicy.org/article/refugee-resettlement-metropolitan-america">predetermined cities and urban centers</a>. They also minimize difficulties by keeping refugees as close as possible to family and friends. </p>
<p>A 2016 report from the <a href="https://www.cato.org/">Cato institute</a>, a think tank “dedicated to the principles of individual liberty, limited government, free markets and peace” <a href="https://www.cato.org/publications/policy-analysis/terrorism-immigration-risk-analysis#full">stated</a>: “The hazards posed by foreign-born terrorists are not large enough to warrant extreme actions like a moratorium on all immigration or tourism.”</p><img src="https://counter.theconversation.com/content/72326/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey H. Cohen does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ban or no ban, finding a Syrian refugee in the U.S. isn’t easy.Jeffrey H. Cohen, Professor of Anthropology, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/723292017-02-03T09:50:20Z2017-02-03T09:50:20ZLife in an Arab-American community under Trump’s ‘Muslim ban’<figure><img src="https://images.theconversation.com/files/155329/original/image-20170202-28018-1tqeiro.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">New Jersey is home to one of the US's largest Muslim populations.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/ackniculous/17361920851/in/photolist-ssdobX-saMP9r-avoto1-c8jMwo-q4XHnJ-nTWkNP-GqP1nb-jhRxw-oECECf/">B.C. Lorio via Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>Life goes on for the parents who drop off their children at homework club, or those rushing in late for embroidery class. As usual, the community centre where I’m doing my fieldwork in northern New Jersey is filled with the piercing screams of toddlers trying to keep up with the older kids. But something in the atmosphere is different.</p>
<p>At the front desk, a pile of letters from an immigrant rights group explain the terms of the executive order in English and Arabic, brutally stating in capital letters that those affected “SHOULD NOT TRAVEL OUTSIDE THE UNITED STATES for any reason”.</p>
<p>Standing by the community centre’s front desk is Zainab, a Syrian refugee. Her husband’s aunt, a green card-holder born in Iraq, is currently flying from Dubai to Newark Airport; her fate is unknown. The air of uncertainty and confusion surrounding the executive order and its practical implementation by federal agencies obscures any clear prediction of what will happen to her. Will she meet the same fate as two Yemenis who arrived in the US on January 28, who were reportedly talked into <a href="https://www.theguardian.com/us-news/2017/jan/30/trump-travel-ban-yemenis-coerced-relinquish-green-card">signing away their green cards</a> and put on the next flight back? </p>
<p>Yet, Zainab exudes an air of resigned optimism. As her relative hurtles towards the US, she says there is little to do other than wait and hope.</p>
<p>Unlike Zainab and her aunt, the majority of the community centre’s patrons are Muslim Palestinian-Americans. As most are American citizens, and have ties to Palestine and Jordan – not included in the ban – the executive order doesn’t directly affect them. But for those I speak to, this is the most shocking and scary moment since Trump entered the presidential race, perhaps aside from his election victory. The letters piled at the entrance remind those who enter that this is no longer a time of primaries and debates, of rhetoric and promises.</p>
<p>Just by signing the order, Abdullah tells me incredulously, Trump immediately turned more than 100 airplane passengers from valid visa and green card holders into illegal travellers, welcomed not by friends and family but by detention and coercion. “Have you ever seen political bureaucracy work so fast?”, he asks me. In the <a href="https://twitter.com/Remroum/status/825212566750244864?ref_src=twsrc%5Etfw">words</a> of Palestinian-American poet and activist Remi Kanazi, “with a pen stroke, a wedding is missed, a eulogy isn’t spoken, a job is not taken, a family is left broken, safety isn’t found”.</p>
<p>For members of the community, the ban is unprecedented – not because it targets Muslims and Arabs, and (green card-holding) Muslim- and Arab-Americans, but because of its open and unabashed intention to do so.</p>
<h2>Flying while Muslim</h2>
<p>The Arab-American community has endured decades of government infringements on their civil liberties: as far back as 1972, President Nixon launched <a href="http://english.al-akhbar.com/node/15474">Operation Boulder</a>, a clandestine FBI operation that spied on thousands of Arab-Americans. But the sharpest uptick, of course, came in the aftermath of 9/11. </p>
<p>Almost immediately after the events of that day, Arab-Americans quickly found themselves collectively punished with detention, deportation and surveillance – in spite of the fact that none of their number were involved in the attacks. (One Palestinian-American tells me, half-joking, that in the months after 9/11, there were more FBI agents than real customers in the Arab restaurants in this New Jersey town.) </p>
<p>In terms of international travel, many have experienced first hand the humiliating difficulties of what they call “flying while Arab” and “flying while Muslim”, and the enhanced security attention this entails. In past years, several airplane passengers simply speaking, reading or writing in Arabic have been <a href="http://www.telegraph.co.uk/news/2016/12/22/prankster-kicked-flight-speaking-arabic-delta-airlines-defends/">pulled off flights</a> in the US and Europe.</p>
<p>Yet this order is not secret or unofficial: it is meant to be seen. Photos and videos of Trump sternly signing the necessary papers in the Oval Office, then holding them up for cameras, have been endlessly circulated (and <a href="https://twitter.com/trumpdraws">mocked</a>) over the past week. The spectacle of Trump’s executive orders is part and parcel of his <a href="https://theconversation.com/trumps-travel-ban-is-nothing-to-do-with-national-security-72170">performative politics</a>.</p>
<p>It’s not lost on the young children who come to homework club. As their attention span expires, they rush to the lectern standing empty at the front of the room and begin to imitate their president. “I am Donald Trump, and I hate Muslim people,” says one child in Arabic. Between fits of self-conscious giggles, another declares: “I will not let Muslim people into this country.” A final Trump impressionist takes his homework up to the podium and signs it with great concentration – and then holds his giant signature up for the audience: “Here is my signature for not letting people in!”</p>
<p>Older members of the centre find comfort in sharing stories of small acts of kindness from other Americans. A fellow tutor relates an encounter over the weekend: walking alone in the street wearing a hijab, a large man approached her. She expected the worst – but instead, he offered words of support and protection.</p>
<p>During a meeting that evening, several participants discussed how a neighbour, a colleague or a boss had knocked on their door, phoned them, or sent them an email of support and friendship. One tells me that they are fortunate to live in northern New Jersey, a diverse urban area with few Trump supporters and in a state with one of the <a href="http://www.pewresearch.org/fact-tank/2016/01/06/a-new-estimate-of-the-u-s-muslim-population/">largest Muslim populations</a> in the US. Muslim- and Arab-Americans elsewhere in the country might not be so fortunate.</p><img src="https://counter.theconversation.com/content/72329/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tom Brocket does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A New Jersey neighbourhood is coming to terms with a shocking new imposition from the government.Tom Brocket, PhD Candidate in Geography, UCLLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/721962017-01-31T23:54:59Z2017-01-31T23:54:59ZThe best legal arguments against Trump’s immigration ban<p>Is President Trump’s recent executive order on immigrants and refugees legal? </p>
<p>It’s a surprisingly tricky question. </p>
<p>The order arguably violates both a federal statute and one or more sections of the Constitution – depending on whether the immigrant is already in the U.S. In the end, opponents’ best hope for undoing the order might rest on the separation of church and state. </p>
<p>Trump’s <a href="https://www.nytimes.com/2017/01/27/us/politics/refugee-muslim-executive-order-trump.html">order</a> bars the entry of any refugee for 120 days, and Syrian refugees indefinitely. It also bans citizens of Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen from entering the U.S. for 90 days. This order potentially affects more than <a href="http://www.unhcr.org/en-us/news/press/2017/1/588f78ee4/unhcr-alarmed-impact-refugee-program-suspension.html">20,000 refugees</a>, along with <a href="https://fivethirtyeight.com/features/trumps-immigration-order-could-affect-thousands-of-college-students/">thousands of students nationwide</a>. Depending on how it is enforced, it could also impact as many as hundreds of thousands of <a href="http://www.vox.com/2017/1/28/14425150/green-card-ban-muslim-trump">green card holders,</a> or immigrants with permanent residency.</p>
<p><a href="http://www.politico.com/blogs/under-the-radar/2017/01/broad-lawsuit-filed-challenging-trump-immigration-order-234314">Many opponents</a> <a href="https://www.aclu.org/blog/speak-freely/aclu-and-other-groups-challenge-trump-immigration-ban-after-refugees-detained">have challenged</a> the order in court. </p>
<p>A U.S. District Court judge in Brooklyn, New York, issued <a href="http://www.politico.com/f/?id=00000159-e83b-d7d2-a97f-fcbbcbd80000">a ruling</a> that halted the enforcement of Trump’s executive order the day after he signed it. Judges in at least <a href="http://www.reuters.com/article/us-usa-trump-immigration-courts-idUSKBN15D0XG">four other states</a> followed suit. </p>
<p>Trump’s supporters defend the order’s legality based on a <a href="https://www.law.cornell.edu/uscode/text/8/1182">federal immigration statute</a> passed in 1952 that allows the president to suspend the U.S. entry of “any class of aliens.” But, as a former U.S. Justice Department lawyer and a law professor, I believe there are at least four possible arguments challenging the legality of the order.</p>
<h2>Anti-discrimination statute</h2>
<p>There is, critically, <a href="https://www.law.cornell.edu/uscode/text/8/1152">another federal statute</a> that outlaws discriminating against a person regarding issuing visas based on the person’s “nationality, place of birth, or place of residence,” which Trump’s order clearly does. This second statute was passed in 1965 and is more specific than the 1952 statute. What’s more, <a href="http://law.justia.com/cases/federal/district-courts/FSupp/891/650/1667545/">courts</a> have enforced this anti-discrimination ban strictly. This is the strongest legal argument against President Trump’s order. </p>
<p>But Congress can amend or repeal the 1965 statute, as it can any law. A Republican-controlled Congress might do that, although concerns raised by <a href="https://qz.com/897532/the-very-short-list-of-republican-congressmen-who-are-publicly-condemning-president-trumps-muslim-ban/">some GOP lawmakers</a> may make that <a href="http://www.chicagotribune.com/news/nationworld/politics/ct-republicans-trump-travel-ban-20170128-story.html">unlikely</a>. </p>
<h2>Due process and equal protection</h2>
<p>The recent court orders halting enforcement of the Trump order relied on a legal argument that it violated <a href="https://www.law.cornell.edu/wex/fifth_amendment">due process or equal protection</a> under the Constitution. Due process means that people get procedural safeguards–like advance notice, a hearing before a neutral decision-maker and a chance to tell their side of the story–before the government takes away their liberty. Equal protection means the government must treat people equally, and can’t discriminate on the basis of race, alien status, nationality, and other irrelevant factors. </p>
<p>As the Supreme Court has said, even immigrants who are <a href="https://www.law.cornell.edu/supct/html/99-7791.ZS.html">not citizens</a> or green card holders have due process and equal protection rights, if – and only if – they are <a href="https://supreme.justia.com/cases/federal/us/553/723/opinion.html">physically here</a> in the U.S. That’s why the recent court orders on due process and equal protection help only individuals who were in the States at the time the court ruled. </p>
<p>Given the <a href="http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban">rushed, chaotic manner</a> in which the recent order was drafted and enforced, with no set chance for affected individuals to plead their case, maybe there are some valid due process arguments against the ban. But presumably, those can be fixed by slowing down and letting people have their say. Once that’s done, the remaining issue is whether the executive order violates equal protection by intentionally discriminating against Muslims.</p>
<p>Trump denies the order is a “Muslim ban,” even though he called for exactly that <a href="http://www.independent.co.uk/news/world/americas/donald-trump-muslim-ban-travel-immigration-restrictions-latest-news-a7553106.html">during the campaign</a>, and each of the seven countries subject to the ban is majority Muslim. In explaining why those seven countries were chosen, <a href="https://www.nytimes.com/2017/01/27/us/politics/refugee-muslim-executive-order-trump.html">the order itself</a> cites <a href="https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html">the Obama-era law</a> stating that persons who in recent years have visited one of these seven terrorism-prone nations would not be eligible under a <a href="https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html">“visa waiver”</a> program. Similarly, says Trump, the defining characteristic here is <a href="http://thehill.com/homenews/administration/316784-trump-my-first-priority-will-always-be-to-protect-and-serve-our">terrorist danger</a>, not religion. That’s why only seven of more than 40 majority Muslim countries are affected. (Note that the Obama-era rule isn’t based on nationality, but rather on whether someone of any nationality visited the danger zone since 2011 – a criterion not outlawed by the 1965 statute.)</p>
<p>One problem with Trump’s argument is that the order also seems to prioritize admitting Christian refugees. It does this by saying that once the 120-day ban on all refugees expires, priority goes to those of “a minority religion in the individual’s country.” </p>
<p>Supporters can rightly argue this “minority religion” language is neutral. It never mentions Muslims or Christians. But, as that neutral language interacts with the country-specific ban targeting seven Muslim countries, the two can’t help but disproportionately help Christians. Indeed, just days before signing the order, Trump told the Christian Broadcasting Network he intended to <a href="http://www.usatoday.com/story/news/politics/onpolitics/2017/01/28/trump-christian-refugees-priority/97175800/">prioritize Christian refugees</a>. </p>
<h2>Separation of church and state</h2>
<p>That brings us to the final legal argument against the president’s order. By picking favorites among religions, it violates the separation of church and state under the Constitution’s <a href="https://www.billofrightsinstitute.org/founding-documents/bill-of-rights/">Establishment Clause</a> of the First Amendment. Though Establishment Clause law is <a href="https://www.oyez.org/cases/2004/03-1500">often murky</a>, one clear point is that the government can’t favor one <a href="https://supreme.justia.com/cases/federal/us/456/228/case.html">religious denomination over another</a>. </p>
<p>This may be the most important of the constitutional theories involved in this case because it may have the broadest scope. </p>
<p>The due process and equal protection arguments only help persons who are already in the United States. Theoretically, a court ruling on those arguments might invalidate the order only as it applies to such persons. But if the order violates the Establishment Clause by making a statement favoring Christianity, a court could strike it down entirely.</p><img src="https://counter.theconversation.com/content/72196/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Mulroy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A constitutional scholar considers the legal arguments that could undo Trump’s executive order barring travel by residents of seven Muslim majority countries.Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of MemphisLicensed as Creative Commons – attribution, no derivatives.