How Trump’s Executive Order Harms Refugees

I’ve worked with refugees and asylum seekers since 1991. I can’t even tell you how many I have had the privilege to represent, yet I believe that I have only encountered two cases of fraud in more than 20 years. I have never encountered even a single client with any links to terrorism. The refugees and asylum seekers who I have met have been fleeing for their lives – sometimes, in fact, from terrorists.

The Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” signed on January 27, 2017 not only overreaches executive branch powers (under the plenary power doctrine, immigration policy is shared between the legislative and executive) but aspects of the order are both unconstitutional and violate our international legal obligations under the Refugee Convention (which we ratified in 1980). This at a time when there are more forcibly displaced persons (65+ million) than ever before in human history.

Here are some of the reasons why this Executive Order is bad policy that should not be enforced:

  •  Suspension of U.S. Refugee Admissions Programs (USRAP).
    • The order suspends all refugee admissions for 120 days.  Why?  Even after the terrorist attacks of 9/11, refugee admissions were suspended for less than 3 months.  Refugees are perhaps the most thoroughly vetted individuals who enter the U.S.  Refugee processing often takes up to 36 months and includes background checks, biometrics, medical screenings, and interviews with several federal agencies. I’ve met many people stuck in limbo in refugee camps, waiting to be cleared to join immediate family members in the U.S.  The refugees impacted by this aspect of the order includes many children –  the UN High Commissioner for Refugees estimates that 51% of refugees are under the age of 18.
    • Under the order, exceptions can be made on a case-by-case basis for national interest, if the person does not pose a risk, and the person is a religious minority facing religious persecution OR diplomats OR if the person is already in transit and denying admission would cause a hardship. It does not appear that clear instructions regarding implementation were conveyed to the Border & Customs Protection people who actually had to enforce the order this weekend, leading to chaos and lawsuits.
    • The order reduces the number of refugee admissions by more than half, to 50,000. The refugee admission number is set each year by the President, in consultation with Congress.  Historically, the number of admissions has fluctuated in response to the human rights crises in the world that produce refugee emergencies.  Frankly, the U.S had dropped pretty low in our history in refugee resettlement due to the overall lower number of refugees worldwide prior to the Syrian conflict. President Obama does not deserve accolades for many aspects of his immigration policy regarding refugees, particularly in regard to family detention and the “rocket docket” for Central American women and children fleeing violence.  But last year he finally did authorize an increase in the number of refugees the U.S would accept in response to the worldwide refugee crisis. The goal this fiscal year was to admit 110,000 refugees.  The government’s fiscal year began on October 1, so we have already admitted 29.895 as of January 20, 2017.  Under this new executive order, we will admit only about 20,000 additional refugees before the end of the fiscal year on September 30. That means that 60,000 refugees who have already been vetted will remain in vulnerable situations.  —
    • Once resumed, the U.S. will prioritize the religious persecution claims of minority religious groups.  Purportedly, this is to prioritize the claims of persecution on account of Christian minorities but the fact is that Muslims are also a persecuted minority in countries such as India. What does this mean for them?
    • The order suspending USRAP for 120 days also directs Department of Homeland Security to determine how state and local jurisdictions can have greater involvement in determining placement resettlement in their district.  This aspect of the order has not received a lot of media coverage yet, but it would allow states and cities unprecedented authority to say that they will not resettle any Muslim refugees. Bills have already been introduced in states such as North Dakota and South Dakota to ban all resettlement unless approved by the state legislatures.
  • Ban on Syrian refugees. The order halts the processing and admission of all Syrian refugees. Indefinitely. Syria is one of the worst human rights crises on the planet. Over the past few years, millions of people have fled from both the forces of President Bashar al-Assad (supported by Russian airstrikes) and ISIS.  It is worth noting that the U.S. finally stepped up last year and accepted 10,000 refugees – but that number is far, far less than most Western countries.  To date, the majority of refugees resettled from Syria to the U.S. have been women and children. 
  • And then there’s the ban on entry of nationals of Muslim-Majority countries.
    • Both non-immigrants (tourist, student, etc.) and immigrants (including legal permanent residents – although Priebus later said that, actually we didn’t mean THEM and a “waiver” process was subsequently added) from seven countries (some friends, some foe) – Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen – are banned from entry for at least 90 days. The order also notes that other countries and immigration benefits may be added to the banned list later. Courts have already temporarily blocked the implementation of part of this order, the concern being the First Amendment Establishment Clause (which prohibits the government from preferring or disfavoring a religion) and the Fourteenth Amendment Equal Protection clause.
    • But part of the order also calls for the exclusion of individuals who “would place violent ideologies over American law” or “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 for their own..” That is incredibly vague and potentially discriminatory.  But the truth is that there has been enhanced screening for everyone coming from countries with high levels of terrorism since 9/11. We’re already doing the highest level of vetting that can be done. I can’t help but think that you and me and the American public are being played here – to the great loss of everyone from these 7 countries.
  • In-Person interviews for most nonimmigrant visas.  The order suspends the Visa Interview Waiver Program (VIWP), which was primarily used by people who had been vetted already, were considered a low-security risk and were on renewable employment-based visas. The requirement for in-person interviews for nonimmigrant visa applications will create huge backlogs at embassies and consulates and slow down the process for anyone applying for a visa (including family members of legal immigrants, asylees and refugees).  Many of our asylum clients come to the U.S. on visitor or student visas and this processing backlog will thus prevent people like them from escaping persecution in their countries and leave them in vulnerable and insecure situations.
  • Screening of all for Immigration benefits.  While screening standards are already in place for identifying fraud etc.,  agencies are now directed to create a process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest”.  These are entirely new and subjective standards so it is not clear how anyone could even implement them.  More importantly, they are NOT statutory requirements for any immigration benefit (except a national interest visa). This is policy by fiat, going beyond Congressional authority. And did I mention the backlog we already have for processing any immigration matter?
  • Biometric Entry-Exit.  The order directs agencies to complete the implementation of the biometric entry-exit system that Congress mandated in 1996.  The Department of Homeland Security implemented biometric entry in 2006 but the exit system has proved logistically challenging.  Congress appropriated up to $1 billion in the FY2016 budget for implementing the biometric exit program but the Department of Homeland Security has noted that a comprehensive entry-exit system at all ports of entry will require additional resources.
The Executive Order signed on Friday, January 27, 2017 violates our Constitution, as well as our international obligations under the Refugee Convention to ensure that 1) refugees not returned to a place where they will be persecuted (non-refoulement), 2) there is an individualized determination of persecution on account of one of the 5 grounds (race, religion, nationality, membership in a particular social group or political opinion – NOT just religion); and 3) refugees are not discriminated against.
This Executive Order is public policy based on myth instead of doing what is best for our country and our security. Every Department of Homeland Security professional that I have ever met has said that the problem is lack of resources rather than the need for new laws or regulations. Every refugee I know is a true American patriot, one who tears up when saluting the flag or appear at jury duty because they know – better than me – the true price of freedom.
Educate yourself (reading this post is a good start).  Call your Congressional, state and local representatives.  Volunteer to help refugees and asylum seekers in your hometown.  Remember that Einstein was a refugee – and so were the Pilgrims.  Providing a safe haven for those who are forced to flee persecution is a core American value.  This Executive Order will not make us safer but it will erode our moral standing as leader of the free world.

Serious Concerns About Lack of Access to Counsel for Asylum Seekers

Child from Honduras

U.S. Senator Al Franken has called on Secretary of Homeland Security Jeh Johnson to ensure access to counsel for asylum seekers held in family detention centers. Joined by 18 Senate colleagues, Sen. Franken raises serious concerns regarding reports that U.S. Immigration Customs and Enforcement (ICE) is interfering with the ability of asylum-seeking mothers and children to access legal representation. Recently, individual volunteer attorneys, who had travelled to the privately-owned prison in Dilley, Texas where approximately 2000 Central American refugee women and children are detained,were barred from entering to provide  pro bono representation.

Access to counsel can be the difference between life and death for asylum seekers in the United States. Asylum seekers who have lawyers are more than three times as likely to be granted asylum as those who do not.  Having an attorney is “the single most important factor” affecting the outcome of the case. Yet individuals in immigration detention face the biggest challenge in obtaining legal representation.  The American Bar Association estimates that a whopping 84% of immigration detainees nationwide were unrepresented in their removal proceedings.

At the international level, The Advocates for Human Rights drew attention to the appalling lack of access to counsel for asylum seekers during the UN reviews for U.S. compliance with its obligations under the International Covenant on Civil and Political Rights, the Human Rights Council’s Universal Periodic Review, and the Convention Against Torture.  Most recently, The Advocates raised the continuing failure of the U.S. to recognize asylum seekers from Central America’s northern triangle in its statement to the UN Human Rights Council during a September 28 interactive dialogue on the impact of the world drug problem on the enjoyment of human rights:

As an NGO that provides free legal services to asylum seekers in the United States, we would particularly like to draw attention to an issue that we see on a daily basis: the impact that violent transnational criminal gangs in Central America, fueled by profits from the trade in illegal drugs, have on the lives Central Americans, forcing thousands of women and children to flee and seek safety in the U.S.

Transnational gangs extort, threaten, and forcibly recruit people living in strategic drug trafficking corridors. States in the region are ill-equipped to deal with crimes by these gangs, leaving victims unprotected from serious harm, including torture, disappearance, sexual violence, and murder. And the violence continues to grow, as gangs seek to solidify their control over valuable drug trafficking routes.

For example, gang members threatened to kill one of our clients, who I’ll call “Teresa”, after her family could no longer afford to pay protection money for the family business. Armed gang members abducted her, threw her into a truck, and took her to the leader’s house, where he beat and raped her. Left with no choice but to flee, she sought asylum in the U.S.

Yet the U.S. violates the fundamental rights of asylum seekers like Teresa by failing to recognize victims of transnational criminal gangs as refugees, even when such gangs operate as quasi-state actors that routinely torture, rape, and kill those who resist support or recruitment.

Asylum seekers face other violations, including arbitrary detention and prosecution for illegal entry. Mothers and their children are detained in difficult conditions pending preliminary credible fear determinations in two privately-owned prisons where attorneys have been denied access to clients and even summarily barred from the facilities.

The Advocates for Human Rights calls upon:

  • the Human Rights Council to include this issue in the discussion about the impact of the world drug problem on human rights;

  • the United Nations member States to ensure that their national drug policies consider the impact on the human rights of affected individuals and their countries; and

  • the U.S. to end family immigration detention and expedited removal procedures and to treat all asylum seekers in accordance with international standards.

See The Advocates’ volunteer Dr. Bill Lohman deliver the oral statement to the Human Rights Council:

In July, The Advocates launched a bilingual National Asylum Help Line to connect families released from U.S. immigration detention centers like the one in Dilley with free legal services. Migrants are encouraged to call the Help Line at 612-746-4674 to receive basic legal screening, information about the legal process, and referrals to agencies in areas in which they live.

By Michele Garnett MacKenzie, The Advocates for Human Rights’ Director of Advocacy, and Deputy Director Jennifer Prestholdt

Originally published at theadvocatespost.org on October 29, 2015.