By Doug Rand, J.D.
The White House is touting its Jan. 31 expansion of President Donald Trump’s immigration ban as a powerful tool of diplomacy. According to the newly issued Proclamation 9983, an undisclosed (but presumably large) number of U.S. foreign policy officials have been busy for the past year identifying governments that are not complying with an undisclosed (but presumably large) number of criteria related to “national security and public-safety threats.” In turn, the United States has used the threat of U.S.-imposed immigration restrictions to extract enhanced information-sharing and passport technology from those governments.
But this makes no sense as a bargaining tactic. Once a country is placed on the blacklist — as Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania just were — the primary victims are not errant foreign governments, but U.S. citizens.
The new immigration ban expansion will prevent nearly all husbands, wives, children, parents, and siblings of U.S. citizens from moving to the United States and obtaining permanent residency (usually called having a “green card”). Green card holders already living here won’t be able to unite with their own husbands, wives, and young children, whose eligibility for permanent residency is otherwise uncontroversial. The other blocked immigration categories are would-be employees of U.S. companies (mostly from Nigeria) and families applying for Diversity Visas (mostly from Sudan).
There is no rational connection between the alleged national security risk and a policy of punishing U.S. citizens, permanent residents, and companies. Indeed, the administration doesn’t even try to assert such a connection; instead, the proclamation baldly states that its goal is “incentivizing those foreign governments to improve their practices.”
U.S. diplomats and national security officials have plenty of other tools at their disposal to persuade foreign governments to share information. Immiserating U.S. citizens should not be one of them.
None of this is to suggest that, whatever human suffering it imposes, the immigration ban would actually improve national security; it fails to do so on practical terms, as well. If national security were the real animating concern, then why block only people seeking permanent residency (“immigrant visas”), but not the far larger number of temporary visitors (“nonimmigrant visas”)? Anyone applying for permanent residency goes through far more vetting than we require of tourists, business travelers, and temporary residents.
In fact, why would the administration block permanent residents in the first place? Even the coronavirus travel ban—issued on the same day—includes an exemption for family members of U.S. citizens and permanent residents. Let that sink in for a moment: Our government acknowledges that even during an emerging global health crisis, we shouldn’t prevent families from reuniting, but if you happen to have a family member in one of a dozen countries with less-than-ideal passport technology, then the danger is somehow too great for them to immigrate.
What National Security Benefit?
The selection of those dozen countries also defies any consistent national security argument. The latest proclamation acknowledges that Iraq and another unnamed country (clearly Afghanistan) are noncompliant, but nonetheless keeps them off the banned list because of “a close cooperative relationship between the United States and the democratically elected government,” “the strong United States diplomatic presence,” “the significant presence of United States forces,” and the country’s “commitment to combating the Islamic State of Iraq and Syria (ISIS).”
All of these factors also apply to Nigeria, where U.S. special operations forces are training and assisting partner troops fighting the ISIS-aligned terrorist group Boko Haram. What possible national security concern justified including Nigeria in the administration’s new immigration ban? Why was the Nigerian government “blindsided” by this decision, when five other unnamed countries were given an extra six months of compliance time due to “critical counterterrorism cooperation with the United States” and “strategic importance in countering malign external actors?” Both considerations are certainly true of Nigeria, which also happens to have the largest Muslim population in sub-Saharan Africa and the largest population continent-wide.
The only compelling explanation is purely political. The White House wanted a big policy announcement to mark the three-year anniversary of its first travel ban, a celebration surely calculated to appeal to his base and not to the majority of the electorate, which was appalled by the chaos and cruelty unfolding at airports across the country. Trump has called for a “shutdown of Muslims entering the United States,” strict limits on so-called “chain migration,” and the end of the Diversity Visa program. And the new immigration ban allows him to make headlines and take a victory lap on all three.
That explains the proclamation’s timing, though not its logic. It is not irrelevant that Trump once lamented that Nigerian immigrants will never “go back to their huts,” that he expressed a preference for immigration from Norway instead of “sh-thole countries” in Africa, and that he tasked U.S. Ambassador to the European Union Gordon Sondland with developing a proposal to “fast track” immigration from Europe. Stephen Miller, the architect of the administration’s immigration policies, has privately endorsed talking points from white supremacist websites and publicly praised the Immigration Act of 1924, which all but shut America’s doors to immigrants outside Northern Europe and completely excluded immigrants from Asia.
Straining to Look Legitimate
With the newly expanded immigration ban alone, the administration could succeed in blocking more than 5 percent of immigrants worldwide from ultimately becoming U.S. citizens — all of them from Asian and African countries. The entire U.S. foreign policy apparatus has now been coopted in this effort, and is straining to make it all look legitimate. This is the result of the Supreme Court giving the Trump administration carte blanche to exclude entire nationalities, based on the fig leaf of formally neutral national security criteria.
All of this should deeply concern anyone who cares about the national security of the United States and the capacity of our government to protect us. Potentially hundreds of civil servants and Foreign Service Officers are now wasting time and resources on an opaque bureaucratic exercise designed to deliver White House talking points. As a federal public defender recently said in a different context, seeing Department of Justice, Department of Homeland Security, and State Department officials strive to extradite an Iraqi refugee to near-certain death in the face of overwhelming exculpatory evidence, “I hope we can recover from it. I hope we can regain institutional integrity in some of these agencies.”
And there is an important lesson here for any future administration, as well: Nationality-based restrictions are the wrong tool to promote public safety and national security. It was a Democratic president who ordered internment camps for U.S. citizens of Japanese ancestry, out of a baseless fear of sabotage. Then, as now, collective punishment is as morally abhorrent as it is ineffective. Restricting student visas from China, for example, would have done nothing to prevent recently-arrested Harvard chemistry professor Charles Lieber from allegedly helping the Chinese government to abuse the U.S. academic research system. Nationality-based immigration restrictions are not an appropriate or effective tool for law enforcement, which should focus on deterring and punishing actual lawbreakers.
In the meantime, as the expanded immigration ban freezes green card applications in their tracks and thrusts families into years of undeserved separation and misery, let’s remember: It is simply un-American to prevent U.S. citizens from living with their spouses, children, siblings, or parents, just because of where these loved ones happened to be born.
Originally published by the Just Security, 02.07.2020, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.