The revised executive order signed by President Trump on March 6, 2017 temporarily suspending new entries of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen under the justification that such admissions would be “detrimental to the interests of the United States” represents a significant narrowing of a January 27 executive order that provoked chaos at U.S. airports and sparked a number of successful legal challenges. Still, as with the earlier version, the executive order signed on March 6 sharply cuts refugee resettlement this fiscal year, reducing the program to 50,000 from its earlier 110,000 target, and pauses refugee admissions for 120 days.
The new executive order, which takes effect March 16, restricts nationals of the six countries from entering the United States unless they have visas that were valid as of January 27. This is a significant departure from the prior order, which included Iraq in the group of listed countries, banned the entry of nationals who already had valid visas—including legal permanent residents— and indefinitely suspended the resettlement of Syrian refugees. It allows nationals of the six countries to apply for case-by-case waivers and includes broad examples of appropriate circumstances for such waivers, such as individuals who had previously established significant contacts within the United States or who are seeking to visit an immediate family member who is legally in the United States. The new order also retreats from the administration’s attempt to prioritize the resettlement of minority-religion refugees.
The new executive order rescinds the earlier one, which was blocked nationally first by a district court in Washington State and then an appellate panel of the 9th U.S. Circuit Court of Appeals.
This commentary offers information on immigrants, temporary admissions, and refugees from the six banned countries; briefly examines the history of country-specific immigration bans; reviews current vetting procedures for nationals from the six countries; and discusses the potential fates of the two travel bans as court proceedings move forward.
Contemporary History of Admissions from the Travel-Ban Countries
Because the March 6 executive order bans the entry of future would-be nonimmigrants and immigrants, it is impossible to predict the numbers who could be excluded. However, a look at the current populations of nationals from these countries and their recent admissions to the United States could provide a general sense of the ban’s impact.
Nationals from the six designated countries make up 1.5 percent of the U.S. foreign-born population, totaling slightly more than 656,000 individuals. Not all would be affected by the executive order, because many of these have become naturalized citizens, are legal permanent residents, or have nonimmigrant visas obtained before the January 27 cutoff date.
Table 1. Travel-Ban Country Share of Foreign-Born Population in United States, FY 2015
Note: The Libyan foreign-born population is too small to estimate. Source: U.S. Census Bureau, 2015 American Community Survey, www.census.gov/programs-surveys/acs.html.
As written, the ban would end the admission of new legal permanent residents (LPRs) from these countries, with about 28,000 green cards issued annually in recent years. It is unclear, however, whether the ban will prevent individuals already legally within the United States from adjusting to LPR status. According to data from the Department of Homeland Security (DHS), 58 percent of green cards granted in 2014 to nationals of the six countries were to individuals already in the United States.
Table 2. Annual Grants of Legal Permanent Residence to Nationals of Travel-Ban Countries, FY 2010-15
Source: Data from Department of Homeland Security (DHS), Yearbook of Immigration Statistics (Washington, DC: DHS Office of Immigration Statistics, 2015), www.dhs.gov/immigration-statistics/yearbook/2015.
Nationals from the six designated countries also made up more than 64,000 nonimmigrant admissions in FY 2015, in categories such as H-1B or international student visas. Indeed, individuals from the travel-ban countries represent 1.5 percent of foreign students studying in the United States, with more than 15,000 such students during the 2015/16 school year. Any nationals from the six designated countries who had valid visas issued by January 27 will not be included in the ban.
Table 3. Annual Nonimmigrant Admissions to United States from the Travel-Ban Countries, FY 2010-15
Note: These numbers represent admissions, not individuals. Source: DHS, Yearbook of Immigration Statistics, multiple years.
Refugee resettlement of nationals from the six designated countries is also temporarily barred under the executive order for 120 days. In FY 2016, refugees from the six countries made up 27 percent of overall refugee admissions, totaling more than 23,000 refugees.
Table 4. Annual Refugee Admissions to United States from Travel-Ban Countries, FY 2010-16
Notes: There were no Yemeni admissions in 2011 and 2012; the data for 2014 were withheld to limit disclosure. Sources: Migration Policy Institute (MPI) analysis of Department of State, Worldwide Refugee Admissions Processing System (WRAPS) data, http://ireports.wrapsnet.org.
Historical Precedent for the Bans on Nationals from Particular Countries
As a strategy to proactively restrict the admission of certain nationalities, the Trump executive order has no contemporary comparison. In recent U.S. history, suspensions or major restrictions on immigration from specific countries were reactions to direct threats.
For example, in response to the Iranian hostage crisis, the Carter administration in 1980 took a series of economic and political steps, including suspending admissions from Iran. The goal was to increase diplomatic pressure on Iran to release the 52 Americans held hostage at the U.S. embassy in Tehran.
After the September 11, 2001 terrorist attacks, the Bush administration significantly restricted—but did not entirely bar—immigration of nationals from certain countries. Under the National Security Entry-Exit Registration System (NSEERS) male noncitizens and visitors over the age of 16 who were nationals of one of 24 Arab- or Muslim- majority countries (as well as North Korea) were required to enter and depart the United States at certain designated airports and be fingerprinted, photographed, and, in some cases, interrogated. Afterwards, they were required to regularly check in with immigration officials and notify them of any address change. Noncitizens subject to NSEERS who were already within the country were required to report for registration and interviews. Between September 2002 and the end of September 2003, 13,799 individuals were placed in removal proceedings as a result of these interviews.
The legal justification Trump has used for the current travel ban is a provision from the Immigration and Nationality Act of 1952. Under section 212(f), the president has the authority to suspend the entry of all or certain groups of foreign nationals if he finds that their entry would be “detrimental to the interests of the United States.” This provision has been used by many presidents in the past, but never as broadly as has been the case with the Trump administration. Instead, it was invoked as a response to specific events or threats. For example, in 2007, in reaction to severe internal fighting in Lebanon, President George W. Bush suspended entries of certain government officials from Lebanon, as well as others who benefitted from the country’s instability.
Rather than a response to hostile acts, the Trump order harkens back to a time when country-specific bans were anticipatory. The proliferation of exclusionary immigration laws in the late 19th and early 20th centuries included the Chinese Exclusion Act of 1882. Now seen as a disgraceful chapter in U.S. history, the law ordered a ten-year suspension of all Chinese labor-based immigration. The suspension was in response to fears about rising unemployment and declining wages, attributed at that time to Chinese immigrants, who were viewed as racially inferior. The suspension was continued by a series of laws until 1943, when the Magnuson Act lifted the ban, but limited Chinese immigration to 105 individuals per year.
The Chinese Exclusion Act foreshadowed a series of nationality-based restrictions, including the National Origins Act of 1924, under which the immigration of any nationality was limited to 2 percent of its foreign-born population within the United States at the time of the 1890 census. The goal was to prevent people of color from migrating to the United States in great numbers and give greater favor to those principally from Northern European countries and, in particular, the British Isles.
The nationality-specific exclusions were based on discriminatory fears about immigrants and their potential effect on the United States. The national-origins quota system was eventually abolished by the Immigration Act of 1965, which eliminated race, ancestry, or national origin as a basis for denying immigration to the United States.
Current Vetting
Nationals from the six countries designated under the Trump executive order already undergo greater scrutiny and vetting than those from other countries. Beyond the identity checks against criminal, terrorist, and immigration databases, and the fingerprinting and photographs that all foreign travelers to the United States undergo, nationals from the listed countries are required to pass further heightened security procedures. None of the listed countries are part of the Visa Waiver Program, which allows nationals of 38 designated countries to travel to the United States for tourism or business stays of 90 days or less without first obtaining a visa. In addition, under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, nationals from Iran, Sudan, and Syria, and recent travelers to all six countries, are excluded from visa-free travel even if they hold citizenship in a participating country, such as the United Kingdom.
Nationals from Iran, Syria, and Sudan also faced increased scrutiny because the countries have been designated by the State Department as state sponsors of terrorism. This scrutiny includes a review by the Justice Department and other appropriate agencies to determine if a national security threat exists before a nonimmigrant visa can be issued.
Court Proceedings Going Forward
A U.S. district judge in Seattle, responding to a legal challenge filed by Washington State, issued a nationwide temporary injunction halting the original executive order a week after its implementation. The restraining order halted certain parts of the travel ban, including its suspension of entries into the United States of citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days; the pause of the U.S. refugee resettlement program for 120 days; the indefinite halt of entries of Syrian refugees; and the prioritization of religious minorities for refugee resettlement. On February 9, 2017, a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously denied the government’s attempt to lift the restraining order. By revoking that contested order in the one signed March 6, the administration has rendered any ongoing court challenges, including the one in the 9th Circuit, moot.
Individuals in the Trump administration have said the new executive order is designed to overcome some of the legal hurdles encountered by the prior one, especially in the 9th Circuit. In their February 9th ruling, the three judges on the 9th Circuit panel expressed doubts about whether the original executive order was in line with the Constitution, especially as it failed to provide due process, such as notice and a hearing, prior to restricting the ability of individuals to travel within the United States. The court also indicated that the executive order may violate the First Amendment by discriminating against a particular religion. It concluded that the court may consider evidence beyond the four corners of the challenged document when deciding if there was such a discriminatory intent, including statements by Candidate Trump on his plan to implement a “Muslim ban.”
Whether the revisions made in the new order are sufficient to overcome these or other legal challenges will become evident in the weeks ahead.
The Revised Trump Travel Ban: Who Might Be Affected from the Six Targeted Countries?
The revised executive order signed by President Trump on March 6, 2017 temporarily suspending new entries of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen under the justification that such admissions would be “detrimental to the interests of the United States” represents a significant narrowing of a January 27 executive order that provoked chaos at U.S. airports and sparked a number of successful legal challenges. Still, as with the earlier version, the executive order signed on March 6 sharply cuts refugee resettlement this fiscal year, reducing the program to 50,000 from its earlier 110,000 target, and pauses refugee admissions for 120 days.
The new executive order, which takes effect March 16, restricts nationals of the six countries from entering the United States unless they have visas that were valid as of January 27. This is a significant departure from the prior order, which included Iraq in the group of listed countries, banned the entry of nationals who already had valid visas—including legal permanent residents— and indefinitely suspended the resettlement of Syrian refugees. It allows nationals of the six countries to apply for case-by-case waivers and includes broad examples of appropriate circumstances for such waivers, such as individuals who had previously established significant contacts within the United States or who are seeking to visit an immediate family member who is legally in the United States. The new order also retreats from the administration’s attempt to prioritize the resettlement of minority-religion refugees.
The new executive order rescinds the earlier one, which was blocked nationally first by a district court in Washington State and then an appellate panel of the 9th U.S. Circuit Court of Appeals.
This commentary offers information on immigrants, temporary admissions, and refugees from the six banned countries; briefly examines the history of country-specific immigration bans; reviews current vetting procedures for nationals from the six countries; and discusses the potential fates of the two travel bans as court proceedings move forward.
Contemporary History of Admissions from the Travel-Ban Countries
Because the March 6 executive order bans the entry of future would-be nonimmigrants and immigrants, it is impossible to predict the numbers who could be excluded. However, a look at the current populations of nationals from these countries and their recent admissions to the United States could provide a general sense of the ban’s impact.
Nationals from the six designated countries make up 1.5 percent of the U.S. foreign-born population, totaling slightly more than 656,000 individuals. Not all would be affected by the executive order, because many of these have become naturalized citizens, are legal permanent residents, or have nonimmigrant visas obtained before the January 27 cutoff date.
Table 1. Travel-Ban Country Share of Foreign-Born Population in United States, FY 2015
Note: The Libyan foreign-born population is too small to estimate.
Source: U.S. Census Bureau, 2015 American Community Survey, www.census.gov/programs-surveys/acs.html.
As written, the ban would end the admission of new legal permanent residents (LPRs) from these countries, with about 28,000 green cards issued annually in recent years. It is unclear, however, whether the ban will prevent individuals already legally within the United States from adjusting to LPR status. According to data from the Department of Homeland Security (DHS), 58 percent of green cards granted in 2014 to nationals of the six countries were to individuals already in the United States.
Table 2. Annual Grants of Legal Permanent Residence to Nationals of Travel-Ban Countries, FY 2010-15
Source: Data from Department of Homeland Security (DHS), Yearbook of Immigration Statistics (Washington, DC: DHS Office of Immigration Statistics, 2015), www.dhs.gov/immigration-statistics/yearbook/2015.
Nationals from the six designated countries also made up more than 64,000 nonimmigrant admissions in FY 2015, in categories such as H-1B or international student visas. Indeed, individuals from the travel-ban countries represent 1.5 percent of foreign students studying in the United States, with more than 15,000 such students during the 2015/16 school year. Any nationals from the six designated countries who had valid visas issued by January 27 will not be included in the ban.
Table 3. Annual Nonimmigrant Admissions to United States from the Travel-Ban Countries, FY 2010-15
Note: These numbers represent admissions, not individuals.
Source: DHS, Yearbook of Immigration Statistics, multiple years.
Refugee resettlement of nationals from the six designated countries is also temporarily barred under the executive order for 120 days. In FY 2016, refugees from the six countries made up 27 percent of overall refugee admissions, totaling more than 23,000 refugees.
Table 4. Annual Refugee Admissions to United States from Travel-Ban Countries, FY 2010-16
Notes: There were no Yemeni admissions in 2011 and 2012; the data for 2014 were withheld to limit disclosure.
Sources: Migration Policy Institute (MPI) analysis of Department of State, Worldwide Refugee Admissions Processing System (WRAPS) data, http://ireports.wrapsnet.org.
Historical Precedent for the Bans on Nationals from Particular Countries
As a strategy to proactively restrict the admission of certain nationalities, the Trump executive order has no contemporary comparison. In recent U.S. history, suspensions or major restrictions on immigration from specific countries were reactions to direct threats.
For example, in response to the Iranian hostage crisis, the Carter administration in 1980 took a series of economic and political steps, including suspending admissions from Iran. The goal was to increase diplomatic pressure on Iran to release the 52 Americans held hostage at the U.S. embassy in Tehran.
After the September 11, 2001 terrorist attacks, the Bush administration significantly restricted—but did not entirely bar—immigration of nationals from certain countries. Under the National Security Entry-Exit Registration System (NSEERS) male noncitizens and visitors over the age of 16 who were nationals of one of 24 Arab- or Muslim- majority countries (as well as North Korea) were required to enter and depart the United States at certain designated airports and be fingerprinted, photographed, and, in some cases, interrogated. Afterwards, they were required to regularly check in with immigration officials and notify them of any address change. Noncitizens subject to NSEERS who were already within the country were required to report for registration and interviews. Between September 2002 and the end of September 2003, 13,799 individuals were placed in removal proceedings as a result of these interviews.
The legal justification Trump has used for the current travel ban is a provision from the Immigration and Nationality Act of 1952. Under section 212(f), the president has the authority to suspend the entry of all or certain groups of foreign nationals if he finds that their entry would be “detrimental to the interests of the United States.” This provision has been used by many presidents in the past, but never as broadly as has been the case with the Trump administration. Instead, it was invoked as a response to specific events or threats. For example, in 2007, in reaction to severe internal fighting in Lebanon, President George W. Bush suspended entries of certain government officials from Lebanon, as well as others who benefitted from the country’s instability.
Rather than a response to hostile acts, the Trump order harkens back to a time when country-specific bans were anticipatory. The proliferation of exclusionary immigration laws in the late 19th and early 20th centuries included the Chinese Exclusion Act of 1882. Now seen as a disgraceful chapter in U.S. history, the law ordered a ten-year suspension of all Chinese labor-based immigration. The suspension was in response to fears about rising unemployment and declining wages, attributed at that time to Chinese immigrants, who were viewed as racially inferior. The suspension was continued by a series of laws until 1943, when the Magnuson Act lifted the ban, but limited Chinese immigration to 105 individuals per year.
The Chinese Exclusion Act foreshadowed a series of nationality-based restrictions, including the National Origins Act of 1924, under which the immigration of any nationality was limited to 2 percent of its foreign-born population within the United States at the time of the 1890 census. The goal was to prevent people of color from migrating to the United States in great numbers and give greater favor to those principally from Northern European countries and, in particular, the British Isles.
The nationality-specific exclusions were based on discriminatory fears about immigrants and their potential effect on the United States. The national-origins quota system was eventually abolished by the Immigration Act of 1965, which eliminated race, ancestry, or national origin as a basis for denying immigration to the United States.
Current Vetting
Nationals from the six countries designated under the Trump executive order already undergo greater scrutiny and vetting than those from other countries. Beyond the identity checks against criminal, terrorist, and immigration databases, and the fingerprinting and photographs that all foreign travelers to the United States undergo, nationals from the listed countries are required to pass further heightened security procedures. None of the listed countries are part of the Visa Waiver Program, which allows nationals of 38 designated countries to travel to the United States for tourism or business stays of 90 days or less without first obtaining a visa. In addition, under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, nationals from Iran, Sudan, and Syria, and recent travelers to all six countries, are excluded from visa-free travel even if they hold citizenship in a participating country, such as the United Kingdom.
Nationals from Iran, Syria, and Sudan also faced increased scrutiny because the countries have been designated by the State Department as state sponsors of terrorism. This scrutiny includes a review by the Justice Department and other appropriate agencies to determine if a national security threat exists before a nonimmigrant visa can be issued.
Court Proceedings Going Forward
A U.S. district judge in Seattle, responding to a legal challenge filed by Washington State, issued a nationwide temporary injunction halting the original executive order a week after its implementation. The restraining order halted certain parts of the travel ban, including its suspension of entries into the United States of citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days; the pause of the U.S. refugee resettlement program for 120 days; the indefinite halt of entries of Syrian refugees; and the prioritization of religious minorities for refugee resettlement. On February 9, 2017, a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously denied the government’s attempt to lift the restraining order. By revoking that contested order in the one signed March 6, the administration has rendered any ongoing court challenges, including the one in the 9th Circuit, moot.
Individuals in the Trump administration have said the new executive order is designed to overcome some of the legal hurdles encountered by the prior one, especially in the 9th Circuit. In their February 9th ruling, the three judges on the 9th Circuit panel expressed doubts about whether the original executive order was in line with the Constitution, especially as it failed to provide due process, such as notice and a hearing, prior to restricting the ability of individuals to travel within the United States. The court also indicated that the executive order may violate the First Amendment by discriminating against a particular religion. It concluded that the court may consider evidence beyond the four corners of the challenged document when deciding if there was such a discriminatory intent, including statements by Candidate Trump on his plan to implement a “Muslim ban.”
Whether the revisions made in the new order are sufficient to overcome these or other legal challenges will become evident in the weeks ahead.
MPI Resources on Trump Executive Orders