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'A Closing of America'

A draft of an executive order President Trump is reportedly considering would immediately impose a 30-day ban on entry of individuals from certain Muslim-majority countries, reform the visa process and suspend refugee admissions.

January 26, 2017
 

A draft executive order that President Trump is reportedly considering signing would suspend and shrink refugee admissions and temporarily bar nationals of certain countries in the Middle East and Africa from entering the U.S.

The draft order, published Wednesday by The Washington Post and The New York Times, can be read in light of Trump’s campaign promise to temporarily suspend visa processing from certain countries “that have a history of exporting terrorism” and put new, more “extreme” vetting procedures in place. The draft order, if signed, would:

  • Direct a review of visa policies culminating in the creation of "a list of countries recommended for inclusion on a presidential proclamation that would prohibit the entry of foreign nationals." The list would consist of countries that are determined to share inadequate information about visa applicants with the U.S. government.
  • Order an immediate 30-day suspension of entry of individuals from countries designated by a section of the 2016 Consolidated Appropriations Act -- a list that the Post and Times report includes the Muslim-majority countries Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
  • Direct the development of "uniform screening standards and procedures, such as in-person interviews; the creation of 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 positive 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."
  • Suspend the Visa Interview Waiver Program.
  • Direct a 120-day suspension of the U.S. Refugee Admissions Program and an indefinite suspension of the processing of refugee applications from Syria.
  • Order the secretaries of state and homeland security to process and admit a total of 50,000 refugees during fiscal year 2017, which is less than half the target of 110,000 refugees set by the Obama administration.

The draft order, framed as a counterterrorism measure, asserts that changes made to the visa issuance process after the Sept. 11 attacks have been insufficient in preventing attacks by foreign nationals. It specifically references a terrorism risk posed by foreign-born individuals entering the U.S. on student visas -- though two analyses by the RAND Corporation and New America found that the vast majority of known jihadist terrorists in the U.S. were citizens or permanent residents.

"Hundreds of foreign-born individuals have been convicted or implicated in terrorism-related crimes since Sept. 11, 2001, including foreign nationals who entered the United States after claiming asylum; after receiving visitor, student or employment visas; or through the U.S. refugee resettlement program," the opening section of the draft order asserts. "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 our country," the text of the draft order 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."

"As we get into the implementation of that executive order we’ll have further details, but I think the guiding principle for the president is keeping this country safe," the White House press secretary, Sean Spicer, said when asked about reports of the planned order at a Wednesday press briefing.

The draft order, if signed in its published form, would have immediate implications for higher education institutions bringing students and scholars from the Middle East and Africa. Figures from the Institute of International Education's annual Open Doors survey show that Iran sent 12,269 students to the U.S. in the 2015-16 academic year, making it the 11th-leading country of origin for international students in the United States, right after Mexico. Iran also sent 1,891 visiting professors or researchers to the U.S. that year, according to Open Doors figures.

Scholars and Students Hosted by U.S. Universities, 2015-16

  Number of Students Number of Professors or Researchers
Iran 12,269 1,891
Iraq 1,901 171
Libya 1,514 49
Somalia 35 0
Sudan 253 32
Syria 783 145
Yemen 599 19

Source: Institute of International Education.

Figures for the other countries affected by the possible immediate 30-day entry ban are smaller (per the chart above), but universities have over the past decade made deliberate efforts to assist students and scholars from Iraq and, more recently, Syria. Iraq and Libya have both sent sizable numbers of students to the U.S. on government scholarship programs.

Esther D. Brimmer, the CEO of NAFSA: Association of International Educators, said that though the executive order has not been signed, "given the outlines that are already evident, we have significant concerns."

"First off, it’s not at all clear that this will actually accomplish its objective. There’s no evidence that any of these actions will make the U.S. any safer. In fact, it will actually undermine our relationships with countries where we're trying to build better relationships," Brimmer said.

Brimmer said the order, if signed as drafted, would have "profound" and "immediate" effects on higher education.

"As many as 17,000 students or their families who are currently studying in the U.S.A. are affected," she said. "You might have students who went home for the holidays, who went out of the country. They might in effect be trapped and denied re-entry to the U.S. immediately after this order is signed. We could have scholars who would come to conferences this spring who would be denied entry." At one of NAFSA's member institutions, she said, a student inquired about whether family members would be able to attend his graduation.

“What’s striking to me is that there are already important, strong measures in place, and the executive order as drafted does not seem to take into account the existing measures," Brimmer said. "International students are already the most tracked visitors to the United States." Syrian refugees also go through an extensive screening process.

Robert Quinn, executive director of the Scholars at Risk Network, which assists threatened scholars and advocates for academic freedom globally, said via email that based on the provisions related to visas, universities "can at least expect rising delays in processing and very possibly an increase in denials."

"If these are excessive, we risk turning away students, scholars and other highly skilled individuals who have contributed so much to U.S. higher education, business/entrepreneurship and culture," Quinn said. "They may simply go elsewhere. Similarly, the requirement of creating new questions aimed at exposing fraud and malicious, criminal or terrorist intent, while perhaps benign enough in intent, if implemented badly, could create an even greater bias in favor of denials as individuals may be asked to prove a negative (that is, that they do not have such intent)."

Quinn added, "For my work at Scholars at Risk, I am most concerned about the impact on those fighting for freedom of thought, inquiry and expression, and human rights generally, in conflict zones, insecure states and authoritarian or repressive regimes. These individuals risk everything for values that America has traditionally stood up for, and they represent America's natural allies in promoting a more just and peaceful order.

"Their bravery is in stark contrast to the draft order, which operationalizes fear and distrust of the procedures and U.S. personnel already in place and charged with vetting admissions; I am not aware of any data since the post-9/11 reforms justifying this."

Keith David Watenpaugh, a professor and director of the human rights studies program at the University of California, Davis, said that his university has "been working very hard to bring, in cooperation with the [IIE] Scholar Rescue Fund, a dissident economist from Iran to spend time with our students and our faculty and to help us understand the situation. We’ll keep working to bring him, but this kind of policy robs the American people and our young people of an opportunity to understand the world better, and also to provide help and assistance to those people who are trying to improve repressive societies like Iran."

"I find it cruel and un-American what has just been proposed," said Watenpaugh, who has studied Syrian refugees and their access to higher education. "It's a closing of the American mind and a closing of America to the world, is what it is.”

The national executive director of the Council on American-Islamic Relations, Nihad Awad, described the draft executive order as constituting a ban on Muslims in disguise. As a presidential candidate, Trump called for "a total and complete shutdown of Muslims entering the United States."

“Make no mistake -- whatever language is used in President Trump’s executive orders on refugees, immigration and visa programs -- Muslims are the sole targets of these orders,” Awad said in a statement.

“These orders are a disturbing confirmation of Islamophobic and un-American policy proposals made during the presidential election campaign.”

Stephen Yale-Loehr, a professor of immigration law practice at Cornell University's Law School, said that Section 212(f) of the Immigration and Nationality Act gives the president broad authority to indefinitely bar the entry of people he deems detrimental to U.S. interests.

"Presidents in the past have done that for small groups of people, such as dictators and their family members, etc., but we’ve never done it on the scale that seems to be contemplated in this executive order," he said.

"It may be legally possible, but I think it’s also policy-wise inadvisable," Yale-Loehr said. "It sends the wrong message -- we’re trying to get other countries to agree with our way of life. If we’re shutting the door, that makes them more anti-American, which raises the specter of terrorism. It does not diminish it."

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