The Travel Ban is Just for Show—The Real Threat is from Individual Officials Who Can Act on its Discriminatory Message

By Angela D. Morrison*

The administration’s revised travel ban represents only the most visible part of the administration’s discriminatory immigration policy.

The U.S. immigration system has a sexist and racist history. The travel ban, along with many of the administration’s other immigration policies, builds on that legacy. Because the administration has been so apparent in its discriminatory motives for the travel ban, lawyers challenging the ban have an unusual opportunity. Advocates can now challenge a category of actions—the consular processing of visas and inadmissibility decisions at the border—that historically has been unreviewable.

But even if immigrant rights advocates win this battle, the administration’s racist and anti-Muslim message to individual immigration officials remains. If courts enjoin the revised ban, individual officials will still be able to operationalize the administration’s message.

 

The Travel Ban

The Executive Order purports to protect the United States from “terrorist activities by foreign nationals admitted to the United States.” There are two main components to the travel ban portion of the Executive Order—a 90-day suspension on the admission of nationals from designated countries and a 120-day suspension of the refugee admissions program.

First, the ban suspends the “unrestricted” entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days. The ban applies only to nationals of the six countries who do not have a visa and are outside of the United States on March 16, 2017—the effective date of the order. Further, it entitles anyone whose visa the government marked as revoked or canceled because of the January 27 travel ban to a new travel document and prohibits that as a basis for an inadmissibility finding.

It also excepts several categories of noncitizens from the ban, including: lawful permanent residents; parolees; dual nationals traveling on a passport used by a non-designated country; individuals traveling on diplomatic or other related visas; individuals who have been granted asylum; admitted refugees; and individuals who have received protection pursuant to various International treaties.

The order also allows consular and Customs and Border Protection (CBP) officers to issue a visa to and admit nationals of the designated countries on a case-by-case basis. Officers can grant a waiver to individuals who have previously worked or studied in the United States; who have significant ties to the United States through family, work, or study; who are infants, young children, adoptees, or individuals needing urgent medical care; and who belong to other categories related to U.S. international obligations.

Second, the ban suspends refugee admissions for 120-days. The suspension does not apply to refugees whom the State Department already scheduled for transit. DHS and the State Department may admit refugees on a case-by-case basis during the ban. The agencies must determine that the refugee does not pose a threat to national security or welfare, and that (1) the refugee’s admission lets the United States meet its international obligations or (2) the denial of admission would result in undue hardship.

 

The Legal Challenges to the Ban

As others have written, the administration’s actions and all available evidence call into question the purported justification for the ban. The administration’s delayed implementation of the ban, the exceptions to the ban, and the lack of evidence that nationals of the listed countries have engaged in terroristic activities, highlight that the administration’s justification is a pretext.

Moreover, the administration has provided plenty of evidence that the ban was motivated by anti-Muslim sentiment. Hawai‘i is the first party to challenge the revised travel ban, primarily on that basis.

 

Lurking Below the Surface – the Discriminatory Exercise of Discretion

The Supreme Court’s unwillingness to review individual immigration officials’ decisions means that there are few remedies for noncitizens denied visas or entry at the border. As a result, officials who are emboldened by the travel ban’s message and are better able to hide their discriminatory motives will succeed where the administration’s travel ban has failed.

When the Court has been willing to review State Department and CBP officials’ discretionary decisions, the Court has done little beyond determining whether the noncitizen received the process required by Congress. In Kerry v. Din and Kleindienst v. Mandel, the Court refused to look beyond whether the immigration official cited a facially legitimate reason for denial or exclusion. In Din, the Court determined the State Department official only needed to provide a citation to the statute that stated the ground of inadmissibility and did not have to provide any other explanation or support for the decision.

If all officials must do is cite to the statutory provision, officials can easily hide their discriminatory motive. Unfortunately, it will prove difficult, if not impossible, for noncitizens denied visas or entry to show that it was for an impermissible reason. That means officials who take the administration’s message to heart are the threat lurking below the surface.

 

*Angela D. Morrison is an associate professor at Texas A&M University School of Law. She researches in the areas of employment and immigration law. Professor Morrison formerly taught at UNLV School of Law as a visiting assistant professor. Her previous positions include the Legal Director of the Nevada Immigrant Resource Project, a trial attorney for the U.S. Equal Employment Opportunity Commission, and a law clerk for the Honorable Philip M. Pro (retired), U.S District Court for the District of Nevada.



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