1/28/17, "Most claims about Trump’s visa Executive Order are false or misleading," Legal Insurrection, William A. Jacobson
"Debunking the supposed “Muslim Ban” and other accusations-gone-wild."
"Yesterday Donald Trump signed an Executive Order on refugees and visa entry procedures.
You should read the actual EO, because most of the media and leftist pundits either have not or are lying if they have.
There are some stark policy differences about immigration and
refugees over which people can disagree — those were argued at length
during the election season. But the hyperbole and frenzy being exhibited
in the media and by leftist pundits is hyperbole at best, fakery and
lying at worst.
CNN is on overdrive, something appreciated by Clinton loyalist and Democrat operative Peter Daou....
I’ll go over key features of the EO and address the main accusations being peddled.
There is no Muslim Ban, even though the Twitter hashtag #MuslimBan is being used by opponents of the EO....
There is a postponement of entry from 7 countries (Iraq, Syria, Iran,
Libya, Somalia, Sudan and Yemen) previously identified by the Obama
administration as posing extraordinary risks. That they are 7
majority Muslim countries does not mean there is a Muslim ban, as most
of the countries with the largest Muslim populations are not on the list
(e.g., Egypt, Indonesia, Malaysia, India, Pakistan, Bangladesh, Turkey,
Nigeria and more).
Thus, the overwhelming majority of the Muslim world is not affected.
Moreover, the “ban” is only for four months while procedures are
reviewed, with the exception of Syria for which there is no time limit.
There is a logic to the 7 countries. Six are failed states known to
have large ISIS activity, and one, Iran, is a sworn enemy of the U.S.
and worldwide sponsor of terrorism.
And, the 7 countries on the list were not even so-designated by
Trump. Rather, they were selected last year by the Obama administration
as posing special risks for visa entry, as even CNN concedes in passing:
"The order bars all people hailing from Iraq, Syria, Iran,
Libya, Somalia, Sudan and Yemen. Those countries were named in a 2016
law concerning immigration visas as “countries of concern.” The executive order also bans entry of those fleeing from war-torn Syria indefinitely."
has an excellent analysis of this Obama administration background to
the list. Please read the whole thing. The short version is that the Obama administration selected those countries — whose names are not mentioned in Trump’s EO.
Franztman provides this image of visa waiver categories, US Customs and Border Protection,* based on the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015:
"DHS remains concerned about the risks posed by the
situation in Syria and Iraq, where instability has attracted thousands
of foreign fighters, including many from VWP countries. Such individuals
could travel to the United States for operational purposes on their own
or at the behest of violent extremist groups. The U.S. Congress shares this concern, and on December 18, 2015, the
President signed into law the Consolidated Appropriations Act 2016,
which includes the Visa Waiver Program Improvement and Terrorist Travel
Prevention Act of 2015 (the Act). The Act, among other things,
establishes new eligibility requirements for travel under the VWP. These
new eligibility requirements do not bar travel to the United States.
Instead, a traveler who does not meet the requirements must obtain a
visa for travel to the United States, which generally includes an
in-person interview at a U.S. Embassy or Consulate.
(added) Sarah Harvard at Mic also recounts the history:
"So, in a nutshell, Obama restricted visa waivers for
those seven Muslim-majority countries — Iran, Iraq, Syria, Sudan,
Somalia, Libya and Yemen — and now, Trump is looking to bar immigration
and visitors from the same list of countries."
Frantzman notes that no one complained when the Obama administration selected these countries:
"What? So there was a Terrorist Travel Prevention Act of
2015 two years before Trump? There was a kind of “Muslim ban” before the
Muslim ban? But almost no one critiqued it in 2015 because it was
Obama’s administration overseeing it. So for more than a year it has been US policy to discriminate
against, target and even begin to ban people from the seven countries
that Trump is accused of banning immigrants and visitors from. CNN even
hinted at this by noting “those countries were named in a 2016 law
concerning immigration visas as ‘countries of concern.’” But why didn’t
CNN note that the seven countries were not named and that in fact they
are only on the list because of Obama’s policy? …Because mainstream media has been purposely lying, either due to
ignorance or because of unwillingness to read the document and ask
questions and because they are too ready to accept “facts” without
investigating. They want to blame Trump for a “Muslim ban” because they
were ready with that script since last year."
Trump Business Connections
An offshoot of the “Muslim ban” claim is the claim that Trump deliberately excluded countries in which he does business. This argument is made in order to claim Muslims are targeted even though most of the Muslim world is not affected....
The problem, of course, is that Trump worked off of the Obama
administration’s list of particularly risky countries for visa entry. To
lay the blame on Trump’s business interests is a lie, or as Frantzman
puts it, fake news:
"Most disingenuous, truly bordering on fake news, are the
reports that claimed the seven countries were connected to Trump
business interests, as if Obama’s DHS picked them because of Trump?"
It’s an Absolute Ban
The “ban” is not without exceptions. There are categories of visa holders who still may enter even from those 7 countries:
"Sec. 3(c) To temporarily reduce investigative burdens on
relevant agencies during the review period described in subsection (a)
of this section, to ensure the proper review and maximum utilization of
available resources for the screening of foreign nationals, and to
ensure that adequate standards are established to prevent infiltration
by foreign terrorists or criminals, pursuant to section 212(f) of the
INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and
nonimmigrant entry into the United States of aliens from countries
referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12),
would be detrimental to the interests of the United States, and I hereby
suspend entry into the United States, as immigrants and nonimmigrants,
of such persons for 90 days from the date of this order (excluding those
foreign nationals traveling on diplomatic visas, North Atlantic Treaty
Organization visas, C-2 visas for travel to the United Nations, and G-1,
G-2, G-3, and G-4 visas)."
Also, the EO allows exceptions on a case by case basis from those 7 countries:
"Sec.3(g) Notwithstanding a suspension pursuant to
subsection (c) of this section or pursuant to a Presidential
proclamation described in subsection (e) of this section, the
Secretaries of State and Homeland Security may, on a case-by-case basis,
and when in the national interest, issue visas or other immigration
benefits to nationals of countries for which visas and benefits are
This Ends Refugees Coming to the U.S.
There is a halt to refugee processing, but it is temporary, for 120
days. Moreover, for people already going through the process, this is
merely a delay not an ending, because they can resume processing once
the system restarts in 120 days:
"Sec. 5. Realignment of the U.S. Refugee Admissions
Program for Fiscal Year 2017. (a) The Secretary of State shall suspend
the U.S. Refugee Admissions Program (USRAP) for 120 days. During the
120-day period, the Secretary of State, in conjunction with the
Secretary of Homeland Security and in consultation with the Director of
National Intelligence, shall review the USRAP application and
adjudication process to determine what additional procedures should be
taken to ensure that those approved for refugee admission do not pose a
threat to the security and welfare of the United States, and shall
implement such additional procedures. Refugee applicants who are already
in the USRAP process may be admitted upon the initiation and completion
of these revised procedures. Upon the date that is 120 days after the
date of this order, the Secretary of State shall resume USRAP admissions
only for nationals of countries for which the Secretary of State, the
Secretary of Homeland Security, and the Director of National
Intelligence have jointly determined that such additional procedures are
adequate to ensure the security and welfare of the United States."
There are accusations that one particular provision discriminates. It
gives preference to those fleeing religious persecution in countries in
which they are a religious minority:
"Sec. 5(b) Upon the resumption of USRAP admissions, the
Secretary of State, in consultation with the Secretary of Homeland
Security, is further directed to make changes, to the extent permitted
by law, to prioritize refugee claims made by individuals on the basis of
religious-based persecution, provided that the religion of the
individual is a minority religion in the individual’s country of
nationality. Where necessary and appropriate, the Secretaries of State
and Homeland Security shall recommend legislation to the President that
would assist with such prioritization."
This is being referred to as a de facto discrimination against Muslims because it mostly applies to Christians.
Well, that’s because Christians are the most persecuted religion in
the Middle East, by Muslims. If there were a country in which Muslims
were persecuted by another majority religion, they would get preference.
In fact, this religious persecution test has long been the case in
refugee cases, but has been twisted to discriminate against
Christians, as this September 2016 column by Elliott Abrams explained:
"The headline for this column—The U.S. Bars Christian, Not Muslim, Refugees From Syria—will strike many readers as ridiculous.
But the numbers tell a different story: The United States has
accepted 10,801 Syrian refugees, of whom 56 are Christian. Not 56
percent; 56 total, out of 10,801. That is to say, one-half of 1 percent.
The BBC says that 10 percent of all Syrians are Christian, which
would mean 2.2 million Christians. It is quite obvious, and President
Barack Obama and Secretary John Kerry have acknowledged it, that Middle
Eastern Christians are an especially persecuted group.
So how is it that one-half of 1 percent of the Syrian refugees we’ve
admitted are Christian, or 56, instead of about 1,000 out of 10,801—or
far more, given that they certainly meet the legal definition?
The definition: someone who “is located outside of the United States;
is of special humanitarian concern to the United States; demonstrates
that they were persecuted or fear persecution due to race, religion,
nationality, political opinion, or membership in a particular social
Somewhere between a half million and a million Syrian Christians have fled Syria, and the United States has accepted 56. Why?
“This is de facto discrimination and a gross injustice,” Nina Shea,
director of the Hudson Institute’s Center for Religious Freedom, told
Fox News. Fox notes another theory: The United States takes refugee
referrals from the U.N. refugee camps in Jordan, and there are no
The EO does apply to dual nationals, but not in the way people imply, suggesting U.S. citizens would be barred from reentry. Dual nationals who are U.S. citizens are not affected. The EO only
applies to dual nationals from the 7 countries who travel on the
passport of another (non-U.S.) country. The Wall Street Journal explains:
"It also applies to people who originally hail from those
countries but are traveling on a passport issued by any other nation,
the statement [by the State Department] notes. That means Iraqis seeking
to enter the U.S. on a British passport, for instance, will be barred,
according to a U.S. official. British citizens don’t normally require a
visa to enter the U.S.
“Travelers who have nationality or dual nationality of one of these
countries will not be permitted for 90 days to enter the United States
or be issued an immigrant or nonimmigrant visa,” the statement said.
“Those nationals or dual nationals holding valid immigrant or
nonimmigrant visas will not be permitted to enter the United States
during this period. Visa interviews will generally not be scheduled for
nationals of these countries during this period.”
Green Card Holders
There are reports that holders of Green Cards from those 7 countries
may not enter the U.S. This is partially true, but it will be handled on
a case-by-case basis, according to CBS News:
"Senior administration officials told CBS News Saturday
that for permanent American residents — those holding green cards — from
the listed countries, their readmittance to the U.S. will be done on a
“case by case exemption process.”
[Update: On Sunday morning, White House Chief of Staff Reince Priebus stated
that the EO temporary preclusion for the 7 countries “doesn’t include
green card holders going forward”
but “you’re going to be subjected to
There are anecdotal reports of people being detained while trying to
enter the U.S., or pulled off planes, or not allowed to board. It’s hard
to know whether these reports — if true — are the result of policy or
confusion. As with any large bureaucratic endeavor, there seems to be
administrative confusion, as the NY Times reported in a story recounting some of these reports:
"But the weekold administration appeared to be
implementing the order chaotically, with agencies and officials around
the globe interpreting it in different ways."
It is true that Syrians seeking refugee status are barred entry, and
that there is no current time limit on that. Rather, resumption will
take place only after security assurance are in place:
"Sec. 5(c) Pursuant to section 212(f) of the INA, 8 U.S.C.
1182(f), I hereby proclaim that the entry of nationals of Syria as
refugees is detrimental to the interests of the United States and thus
suspend any such entry until such time as I have determined that
sufficient changes have been made to the USRAP to ensure that admission
of Syrian refugees is consistent with the national interest."
This is consistent with what Trump said during the campaign.
Conclusion: Policy Differences Don’t Justify Fake News
It is possible to criticize the EO and Trump visa/refugee policy
without hyperbole and fakery. That opponents feel the need to make false
and misleading accusations is a signal that they fear losing the policy
argument on its merits."
"[* the wording of this sentence was changed and the quote added after publication to clarify the source of the image]"
Related post, Federal Court issues temporary partial stay of Trump Executive Order (Update: Copy of Order)
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