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This comment has been updated an revised as of February 3, 2017, 9:25 pm:
Could the following hostile, intrusive, questions contained in a letter from a state legislator that has been received by hundreds of Muslim leaders in Texas become a template for "extreme vetting" of Muslim visa applicants (those who are not already banned from applying for visas because of their nationality, that is) under the guidelines set forth in Trump's Muslim ban executive order discussed below?
See questions listed in the following report:
My original comment appears below.
Donald Trump's January 27 executive order banning immigration from seven Muslim countries and by refugees world-wide is being presented by its drafters as merely a temporary measure, pending review of immigrant screening standards and procedures, in order to make these procedures more effective for national security. This sounds harmless enough.
But what if this seemingly reasonable measure, ostensibly aimed at making America more secure against those who would want to harm our citizens, is in fact much more than that?
What if it is actually the prelude to a one-man takeover of our entire immigration system, in which the rules for admission to the United States, or even granting of immigration benefits for foreign citizens who are already in the United States, are determined solely by presidential decree, without any input from, or even knowledge by, Congress or the affected agencies of the executive branch?
What if Trump's January 27 order is the prelude to a Constitutional crisis, one which may already have begun, in which the president or executive branch agencies under his control set themselves above the law by openly defying or ignoring court orders? This appears to be the rule, rather than the exception in the case of Trump's Muslim ban order, according to a Slate report entitled:
Trump is violating the court orders against his Muslim ban
(Link to be provided if available.)
And what if the order was intended by its drafters to be the first step in setting off a "conflict of civilizations" which could increase the danger of an actual shooting war in both the Middle East and East Asia in which the United States would be involved? See:
At first glance, it would be tempting to dismiss all of these possibilities as merely products of an over-active imagination - hyperbole used in service of a "straw man" argument against the president, or in the words of a federal judge ruling against then governor and now Vice President Mike Pence in a Syrian refugee case: "a nightmare scenario".
But on a closer look at the actual language of the order and the circumstances surrounding it, the ominous implications mentioned above may be more realistic than one would like to think.
Let us now begin to take that closer look:
Trump's January 27 order begins, not surprisingly, with an opening pro forma claim that the purpose of the order is to protect against terrorism.
This is despite the fact that news reports indicate that national security officials, including possibly even DHS chief John Kelly, were kept in the dark about the order until it was issued, and the Muslim ban order has been condemned by national security experts outside the administration as a "huge mistake", which will make America less safe.
Despite its opening references to national security, the order does not take long to show that it is also concerned with a much broader concern, namely, determining what kinds of immigrants are to be allowed into the United States in general, even apart from specific national security considerations.
Section 4 of the order, to be discussed in more detail in a forthcoming comment, has already created so much concern among the immigration bar that even the leader of FAIR a prominent anti-immigrant organization, has cautioned that parts of the order should not be read literally.
This section provides in relevant part, directs the heads of the agencies involved (DOS, DHS, National Intelligence and the FBI to develop a program for a
"...uniform screening standard and procedure, such as...a process to evaluate the applicant's likelihood of becoming a positively contributing member of society and the applicant's ability to make contributions to the national interest"
This provision is utterly mind-boggling in its implications. By imposing a requirement that every applicant for admission to the US has to meet the "national interest" test, one of the most difficult and specialized standards to meet in the entire INA, this part of the order would effective close America's borders to the entire world.
It would give one man, Donald Trump, the power to put a virtual end to immigration in America.
Just in case anyone thinks that the qualifications to enter the US are governed by a statute which some people may have heard of, and which happens to be known as the Immigration and Nationality Act (INA), we now learn from Trump's January 27 order that these issues are from now on to be determined by one man and one man only - by the name of Donald Trump:
The order provides:
"The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law."
This would appear reasonable at first glance, as advocating overthrow of the US government by force and violence has long been part of our law as grounds for inadmissibility to the US, Kleindienst v. Mandel, 1972)
However, this sentence could also reflect to views of avowed Islamophobes within the administration such as Stephen Bannon, who thinks that the "Judeo-Christian" West is in an ideological struggle with the Muslim world that could lead to all out war (see below), and Michael Flynn, who believes that Islam as and ideology and a "cancer", not a real religion.
But using entry into the US or the right to receive immigration benefits as a means of thought control, will not be limited to people suspected of terrorism, or even Muslims in general, according to Trump's order, which continues:
"In addition, the United States should not admit those who engage in acts of bigotry or hatred (including 'honor' killings, other forms of violence against women, or the persecution of those who practice religions different from their own), or those who would oppress American of any race, gender, or sexual orientation.
This portion of the order raises an interesting question:
If someone who promotes bigotry or hatred, or persecutes people of a different religion from his own, were to be inadmissible to the United States for that reason alone, would Donald Trump himself (if he were a foreign citizen seeking entry) not be barred from coming to the United States himself on the basis of his numerous attacks on Muslim, Mexicans, and other minorities during his campaign and after the election, including but certainly not limited to, his seven Muslim country ban executive order and his companion order to begin construction of the Mexican border Wall?
And even if Trump himself (as a hypothetical foreign citizen) were somehow able to get a visa and pass through airport inspection, would his openly and unabashedly Muslim-hating advisers, Steve Bannon and Michael Flynn, be able to qualify for visas under the above standard (again on the hpothesis that they were foreign citizens trying to enter the United States)?
Again, while there is certainly nothing new in excluding people who have committed murder or other violent crimes, for whatever motives, from the United States, the reference to "honor" killings and persecution of other religions also appears to be an effort to single out and stigmatize Muslims in general as allegedly supporting these despicable practices, given that a small number of Muslims in fact do participate in these atrocities.
But is it also the Trump administration's intention to bar people who engage in persecution against Muslims on religious grounds, such as authorities in Burma and other Southeast Asian countries who persecute the Muslim Rohingyas, from the United States?
We will probably not hear much about that from the Trump administration.
But the hypocrisy of Trump and those in his inner circle who issued this order, is clearest of all in the last phrase of the above extract:
"...those who would oppress Americans of any race, gender or sexual orientation".
This would appear to exclude most of the members of the North Carolina legislature which passed that state's notorious bathroom transgender law, for example, if they were foreign citizens seeking visas to enter the US.
Vice President Mike Pence, who supported and then was forced to withdraw his state's law allowing private business to discriminate against LGBT's, when he was governor of Indiana would also have a problem in getting a visa under this standard.
It could also bar state legislators in a number of states (as well as their inspiration, Trump adviser Kris Kobach), who have been active in drafting voter suppression laws against minority US citizens.
But beyond the obvious, self-serving hypocrisy of the above section of Trump's January 27 order, is the bigger danger - that of a president making up his own rules about who can enter the United States, without regard to the standards which are in fact part of our immigration laws as they exist.
While INA Section 212(f) admittedly gives the president broad power to exclude immigrants from the United States, there is nothing in either the language or history of the statute that gives the president power to tear up the rest of the INA and substitute his own untrammeled will instead.
I will continue this discussion in a forthcoming comment.
Attorney at Law
Updated 02-04-2017 at 10:39 AM by ImmigrationLawBlogs