President Trump's executive order limiting travel and immigration from certain countries was made possible under a bill signed into law by President Obama in 2015.
On 27 January 2017 President Donald Trump issued an unnumbered Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” widely described as a “Muslim ban” targeting travelers to the U.S. from seven specific Muslim-majority countries. The order prompted controversy and protests across the United States amid widespread confusion about its contents and the manner in which it might be enforced.
An article by Seth J. Frantzman asserted countries affected by the order were not selected by President Trump and were in fact pinpointed as areas of concern in late 2015, during the administration of President Barack Obama:
According to most reports Trump was banning “nationals of seven Muslim-majority countries from entering the United States for at least the next 90 days.” This bars people from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. US Senator Elizabeth Warren said “Let’s be clear: A Muslim ban by any other name is still a Muslim ban,” and Senator Chris Murphy claimed “Trump has now handed ISIS a path to rebirth.” Media, such as Vox and the Independent, compared the ban to banning Jews from entry during the Holocaust and bashed Trump for signing the order on Holocaust memorial day. World leaders are “condemning Trump’s Muslim ban,” according to headlines.
I had to see for myself, so I read the executive order. The order does seek “to protect the American people from terrorist attacks by foreign nationals admitted to the United States.” It says that it seeks “Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.” It also says “I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order.” And it targets Syrians specifically. “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.”
But, wait a sec. According to the reports “The order bars all people hailing from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.” Critics had attacked Trump for selecting these seven countries and not selecting other states “linked to his sprawling business empire.” Bloomberg and Forbes bought into this.
But, wait a sec. I read the order and Iraq, Iran, Libya, Somalia, Sudan and Yemen are not mentioned in it.
Go back and read it again. Do a “ctrl-f” to find “Iraq”. Where is “Iraq” in the order. It’s not there. Only Syria is there. So where are the seven nations? Where is the “Muslim ban”? It turns out this was a form of fake news, or alternative facts. Trump didn’t select seven “Muslim-majority” countries. US President Barack Obama’s administration selected these seven Muslim-majority countries.
Frantzman was correct (as was Mic.) about the absence of the names of seven countries from President Trump’s order: Iraq, Iran, Libya, Somalia, Sudan and Yemen were not specifically cited in President Trump’s 27 January 2017 Executive Order, which held:
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
President Trump’s order appeared to have roots in the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015,” the passage of which was reported in late 2015 and early 2016 as a response to shootings and terrorist attacks in San Bernardino and Paris in November 2015. Although President Obama did in fact sign the bill into law in December 2015, it was attached as a rider on the Consolidated Appropriations Act of 2016, an omnibus spending bill:
[Following] on widespread anxiety and fear following the Paris terrorist attacks and the San Bernardino shooting … Congresswoman Candice Miller slid the H.R. 158 rider into the must-pass budget bill, the Omnibus Appropriations Bill 2015 … this bill was passed almost unanimously in the House and signed into law by President Obama on December 16 . While the media heralded the relatively painless passage of the Omnibus Appropriations Bill, coverage of H.R. 158 remains conspicuously absent.
H.R. 158 did not actually block travel or immigration by residents or citizens of any particular countries; rather, it terminated travel privileges afforded persons previously covered under the Visa Waiver Program, as described in a letter sent by the American Civil Liberties Union (ACLU) to members of Congress objecting to the bill:
The VWP is a long-established program that permits nationals of certain countries to enter the U.S. as visitors (tourists or business) without a visa, for up to 90 days.
H.R. 158 terminates travel privileges for all citizens of VWP countries who are dual nationals of Iraq, Syria, Iran, or Sudan. This revocation of VWP privileges would apply to all nationals of Iraq, Syria, Iran, or Sudan even if they have never resided in or traveled to Iraq or Syria.
By singling out these four nationalities to the exclusion of other dual nationals in VWP countries, H.R. 158 amounts to blanket discrimination based on nationality and
national origin without a rational basis
An article about the bill from the Center for Immigration Studies (CIS) also noted that it didn’t bar entry to the U.S. by persons traveling from certain areas of concern; it merely changed the process by which they must apply for visas:
Generally, [H.R. 158] prohibits natives of, or travelers to Syria or Iraq (or other countries that have been designated by the secretaries of State or Homeland Security as state supporters or sponsors of terror, such as Sudan and Iran) anytime from March 1, 2011, onward, from participating in the VWP, requiring instead that they seek visas through interviews by American consular officers. Exceptions are carved out for VWP nationals who served in military or civilian government capacities in Syria, Iraq, or other designated countries; the DHS secretary may issue waivers for others.
[These new restrictions] will likely prevent few aliens from entering via the VWP when their pasts are, at least on the surface, a blank slate. However if, after entry using the VWP, it’s discovered that an alien did visit Syria or Iraq, the fact that this was withheld provides federal immigration authorities the hook to arrest and expeditiously remove the individual for having been ineligible to enter under the program to begin with. Understand clearly, though, that is after the fact.
On 18 February 2016 the Department of Homeland Security (DHS) identified three additional countries (bringing the total to seven) that would also be covered by the limitations on Visa Waiver Program travel:
The Department of Homeland Security announced that it is continuing its implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 with the addition of Libya, Somalia, and Yemen as three countries of concern, limiting Visa Waiver Program travel for certain individuals who have traveled to these countries.
The three additional countries designated today join Iran, Iraq, Sudan and Syria as countries subject to restrictions for Visa Waiver Program travel for certain individuals … Individuals impacted will still be able to apply for a visa using the regular immigration process at our embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to provide visa interview appointments on an expedited basis. The new law does not ban travel to the United States, or admission into the United States, and the great majority of Visa Waiver Program travelers will not be affected.
As of November 2016 (before President Trump’s 20 January 2017 inauguration), a U.S. Customs & Border Protection FAQ page affirmed that travel restrictions remained in place for those specific seven countries but also noted that those “restrictions do not bar travel to the United States”:
[O]n December 18, 2015, the President signed into law the Consolidated Appropriations Act 2016, which includes the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). The Act, among other things, establishes new eligibility requirements for travel under the VWP. These new eligibility requirements do not bar travel to the United States. Instead, a traveler who does not meet the requirements must obtain a visa for travel to the United States, which generally includes an in-person interview at a U.S. Embassy or Consulate.
President Trump’s 27 January 2017 executive order mentioned only Syria by name; the six other countries associated with it were ones that had been identified by DHS as “of concern” as early as December 2015.
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