Understanding the immigration ban

Dear Wharton,

We are grateful that the President’s executive order on immigration was temporarily blocked by a federal district court in Seattle last Friday and that the Court of Appeals for the Ninth Circuit refused to reinstate it. As we await a final decision by the Ninth Circuit (and likely subsequent review by the Supreme Court), we write this letter to stand in solidarity against the immigration ban and to provide more information about the ban, which has already affected hundreds of immigrants, green card holders, and refugees—including many of our friends here at Wharton who hold student visas. (See below for FAQs.)

Although the stated purpose of the ban is to protect against terrorism, the Cato Institute notes that foreign nationals from the restricted countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—have killed zero Americans in terrorist attacks on U.S. soil during 1975-2015. Indeed, the annual chance of an American dying in a terrorist attack committed by a refugee is one in 3.6 billion. Moreover, in the aftermath of 9/11, terrorist attacks by anti-government and white supremacists have killed nearly twice as many people as those by jihadist extremists. (Note: We cite these statistics to show that the immigration ban lacks a legitimate factual basis—not to imply that an immigration ban would be permissible for a country that does have terrorist affiliations.)

This executive order is not based upon fact—it merely amplifies xenophobia and Islamophobia. In attempting to justify the immigration ban, the administration cited the killing of six Muslims mid-prayer by a white terrorist to support its fallacious narrative that the immigration ban will reduce radical jihadist terrorism. We condemn the administration’s use of an Islamophobic attack on Muslims to justify an Islamophobic ban against Muslim-majority countries. We urge each of you to continue actively seeking out the truth and resisting attempts to obscure the truth.

The executive order also does not withstand legal scrutiny. Discrimination on the basis of nationality is prohibited by the Immigration and Nationality Act of 1965. We cannot repeat the United States’s long and shameful history of enacting immigration bans on the basis of nationality. See, e.g., the Chinese Exclusion Act of 1882, the Asiatic Barred Zone Act of 1917, the rejection of thousands of Jewish refugees fleeing Nazi Germany, and Executive Order 9066 interning Japanese Americans during World War II.

The administration’s claim that President Obama first identified these seven countries for immigration restrictions is misleading. The Obama administration required greater visa scrutiny (not a ban) of individuals who had traveled to these seven countries, and specifically rejected a nationality-based restriction. The law was enacted to address credible concerns about individuals who had become radicalized after traveling to those seven countries, like the Belgian national who masterminded the Paris attacks after traveling to Syria.

The claim that President Obama had previously issued a similar ban against Iraqi nationals is also inaccurate and misleading. In 2011, the Obama administration slowed the issuance of Special Immigrant Visas (SIVs) to Iraqi applicants after two Iraqi immigrants in Kentucky were arrested on suspicion of ties to an insurgent group. Unlike the Trump order, which imposes a ban on all non-diplomatic visas from seven countries without a legitimate factual basis, the Obama order required enhanced review (not a ban) of a single type of visa from a single country in response to a specific, credible threat. Moreover, unlike the Trump order, which bans all refugees, the Obama order did not impose any ban on refugees. The administration’s attempt to equate the two executive orders is flatly wrong.

As some of our classmates recently noted, the University of Pennsylvania’s motto is “Laws without morals are useless.” We find that the President’s executive order is morally bankrupt and must be rescinded.

With love and in solidarity,
Middle East North Africa Club (MENA)
Muslim Students Network (MSN)
Wharton Africa Student Association (WASA)
Return on Equality (ROE)

Frequently Asked Questions (FAQs)

1. Who is included in the (currently suspended) immigration ban?

Issued on January 27, 2017, the executive order suspended the entry of all refugees to the United States for 120 days, barred Syrian refugees indefinitely, and blocked entry for 90 days for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The ban included all visa holders from these seven restricted countries—including Wharton international students holding student visas, with the exception of  individuals traveling on diplomatic, NATO, or UN visas.

The immigration ban did not include naturalized U.S. citizens from these seven restricted countries, green card holders (i.e., permanent residents), and dual citizens who present a passport from a non-restricted country.

2. Is the immigration ban illegal?

Very likely. In 1965, Congress passed the Immigration and Naturalization Act (INA), prohibiting discrimination “in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8 U.S.C. § 1152. The President relies on Section 212(f) of the INA, which provides an exception “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.” 8 U.S.C. § 1182. A Congressional Research Service (CRS) report acknowledges that there are no “firm legal limits” on the president’s authority, citing case law on Section 212(f) and its extensive use by the last five presidents, including 19 instances by President Obama. However, the Cato Institute notes that “no president has ever barred an entire nationality of immigrants without exception.”

Both liberals and conservatives agree that the immigration ban is illegal. Senator Jeff Flake (R-Ariz.) denounced the executive order as “unacceptable,” adding that “[e]nhancing long-term national security requires that we have a clear-eyed view of radical Islamic terrorism without ascribing radical Islamic terrorist views to all Muslims.” Senator John McCain (R-Ariz.) also voiced his concern that the ban would “give ISIS some more propaganda.” Former President Barack Obama criticized the ban, warning that “core values may be at stake.” Meanwhile, Justin Trudeau, Prime Minister of Canada, tweeted, “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith.

The immigration ban also violates a number of international treaties ratified by the U.S. The United Nations Refugee Convention requires the U.S. not to return refugees to a country where they face serious threats to their life or freedom. The International Convention on the Elimination of All Forms of Racial Discrimination requires the U.S. to “guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.” The International Covenant on Civil and Political Rights requires that even in a “time of public emergency which threatens the life of the nation,” the U.S. cannot discriminate “solely on the ground of race, colour, sex, language, religion or social origin.”

3. What legal action is being taken to reverse the immigration ban?

Judicial action: Last Friday, February 3, a federal judge in Seattle blocked the entire executive order nationwide. The Court of Appeals for the Ninth Circuit denied the DOJ’s request to immediately restore the ban, and the matter remains pending before the Ninth Circuit. Earlier judicial actions include:

  • Federal judges in New York and Virginia blocking deportations of green card holders and all arrivals with valid visas or refugee status;
  • Federal judges in Boston imposing a seven-day restraining order against the executive order in its entirety (which has since expired);
  • Sixteen state attorneys general issuing a joint statement condemning the ban and promising to “fight this unconstitutional order;” and
  • Former Acting Attorney General Sally Yates instructing the Department of Justice (DOJ) not to defend the executive order (the President fired Yates shortly afterwards).

Legislative action: On Monday, January 30, Senator Dianne Feinstein (D-CA) introduced two bills to rescind the executive order and limit executive authority under the Immigration and Nationality Act. The bills have been referred to the Senate Judiciary Committee.

4. The ban may affect me personally. How can I protect myself?

Note: Please contact an immigration lawyer for all legal questions. See this decision chart (English, Arabic, and Farsi) prepared by the CUNY School of Law before the ban was temporarily suspended.