On March 6, 2017, President Trump issued the executive order “Protecting the Nation from Foreign Terrorist Entry into the United States”, effective March 16, 2017. This order revokes the previous executive order issued on January 27, 2017 under the same name, which has been the subject of numerous lawsuits. President Trump’s press secretary, Sean Spicer, stated the new order should promote the administration’s goals and end litigation regarding the January 27th order. Some claim the order is a just a watered-down Muslim ban and others praise the order. Either way, it did clarify a few points that caused much of the chaos in the roll out of the January 27th order.
The new order explains that permanent residents, dual citizens, and those holding valid visas will be allowed to enter or remain. In addition, it restores visas revoked because of the first order. These were the people who were stuck in airports and caused public outraged and mobilized immigration attorneys across the country.
Iraqis were removed from the list of countries subject to the travel ban but are still subject to additional scrutiny. The refugee suspension will only be for 120 days for Syrians rather than indefinitely and it applies to all refugees from the seven countries rather than the U.S. refugee program. The order will only effect those nationals or citizens from the six countries who are outside the US on the effective date of this order, which is March 16th, that didn’t have a valid visa on January 27th, or was a refugee scheduled for transit.
Waivers are still allowed on a case-by-case basis on national security or public interest grounds. The differences are that the Secretaries of State and Homeland Security do not have to jointly determine the case-by-case waivers; and, they must determine it’s in the national interest – before the Secretaries had complete discretion.
Interestingly, the new order removes language about prioritizing refugees based on religious persecution when the individual’s religion is in the minority. Many had argued this was a preference for Christians and evidence the order was a Muslim ban. Similarly, the litigation surrounding the January 27th order claimed the order discriminated against Muslims. The current order explicitly states it did not provide a basis for discrimination against or for members of any particular religion.
What Does the Order Propose to Do
The order states screening and vetting protocols for visa-issuance and the United States Refugee Admissions Program (USRAP) need to be improved to protect citizens from terrorist attacks.
In order to implement this policy, it creates a 90-day period to allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals, and a 120-day period to review screening procedures to ensure refugees admitted in the future do not pose a security risk to the US.
What is notably missing from this order as well as the January 27th order is what part of the vetting process for visas and refugees is lacking. The March 6th Memorandum for the Secretary of State, the Attorney General, and the Secretary of Homeland Security directs these branches of government to implement protocols and procedures to enhance screening and vetting for visas and all immigration benefits. And they should focus on preventing foreign nationals who may aid, support, or commit violent, criminal, or terrorist acts. It also directs them to properly collect information to evaluate all grounds of inadmissibly or deportability, or other negative factors in evaluating any immigration application.
New Court Challenges
There is already talk and movement to amend court documents in the Washington State (Minnesota joining), Hawaii, Massachusetts, Michigan, Oregon, California, and Virginia cases to include the March 6th executive order. The new order, as well as the old, at a minimum, must withstand the rational review standard – government must show it is rational and furthers some legitimate government goal. Some argue the burden is even higher because the travel ban still constitutes religious discrimination. This would require strict scrutiny. In essence, it would require the government to actually show the ban will prevent terrorists from entering and there is no other less-restrictive way to prevent them from entering.
Current Vetting Processes
The current refugee vetting process can take up to two years. It is a nine-step process and provides extensive vetting at every step. Less than 1% of the global refugee population gets past step one. Click to see the full process — https://obamawhitehouse.archives.gov/blog/2015/11/20/infographic-screening-process-refugee-entry-united-states.
The current visa vetting process for tourists, for example, entails an online application asking for a lot of biographical and background information. The information is run through the US terrorism watch lists and database. Then the interview happens. If there are any red flags, the application is forwarded to a specially-trained State Department consular officer and that officer will conduct the interview. During the interview, the officer asks questions to determine if the applicant would be a threat to the US and whether they will return. If the officer approves it, photographs and fingerprints are taken. This information is analyzed by officials there and at the National Targeting Center in Virginia. When the person arrives in the US, a Customs and Border Protection officer queries and analyzes potential threats to the US and takes fingerprints again.
What Can Be Improved
President Trump and his supporters argue we need “extreme vetting” to keep America safe. Still, some believe the US has a vetting system that works and no system will be 100% foolproof. Those individuals state adding “extreme vetting” will not make the US any safer but serve as a recruitment tool for terrorist organizations. Neither President Trump nor anyone from his administration has indicated what “extreme vetting” would include.
Arguably there is one thing that could be improved. The government can make sure there is sufficient information sharing between government agency databases during each step of any visa vetting process and have the Department of Homeland Security and the Department of State’s database interface in ways that make sharing information easy. This is a simple technical solution.
In the end…
There is doubt it’s a balancing act to make sure adequate screening is in place to protect Americans without creating an expensive and burdensome process that hurts the American economy. But that question will be answered only after the passage of time.