Bans and Remote Borders: Dissent under Difficult Conditions

Within a week of assuming office in 2017, President Trump took action to make good on his campaign promise of a “total and complete shutdown of Muslims entering the United States.”  Executive Order 13769, issued on January 27, 2017, immediately prohibited the entry of immigrant and nonimmigrant citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemenfor 90 days, all refugee admissions for 120 days, and indefinitely barred Syrian refugees. This order, framed in the language of terrorism, was the first of a number of executive orders rolled out over time that collectively constitute the “Muslim ban,” so-called because of the countries selected, language explicitly or implicitly referencing Muslims, as well as Trump’s frequent anti-Muslim statements. While the President claimed that “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes” since the September 11 attacks, and that the entry of persons from these countries is “detrimental to the interests of the United States,” a report analyzing government data since 2001 by sociologist Charles Kurzman found that “no one has been killed in the United States in a terrorist attack by anyone who emigrated from or whose parents emigrated from Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen” the countries targeted in the ban. The ban thus blocked entire nationalities of persons from entering the United States on the basis of purported threat not substantiated by data. As the Brennan Center for Justice put it, people should be held accountable for their “personal conduct” not their national origin or other identifying trait, and policies should be based on “proof, not prejudice.” The Muslim ban harks back to the days of the 1917 Asia barred zone, enacted by the U.S. Congress for fully racial reasons. It also brings back memories of the years immediately following the 9/11 attacks, when a wide range of sweeping policies was used to surveil, question, register, incarcerate, and deport Arabs and Muslims living in the U.S. More broadly, the ban fits within a cluster of Trump Administration policies — border, asylum, refugee, public charge, and travel bans — that effectively reduce the immigration of brown and black persons to the United States.

Trump’s effort, which targeted among the most vulnerable of would-be Muslim immigrants, faced immediate legal challenges, caused global havoc at airports — as persons with valid U.S. visas were blocked from boarding flights, persons in transit were removed from flights, and U.S. permanent residents were prevented from entering the U.S. — and generated substantial protest. Broad solidarity coalitions, mobilized through social media, immediately launched protests at major airports across the U.S. to express popular dissent with his actions, and were joined by pro bono attorneys ready to defend detained arrivals. Starting with New York’s JFK airport, protests spread to Chicago’s O’Hare, LAX, San Francisco International, Seattle’s SeaTac, Detroit’s Metropolitan, and at least ten others. These nationwide mobilizations represented a change of profound proportions for Arab and Muslim Americans — because their interests were being defended by a wide range of allies, including members of African American, Latinx, Asian American, Jewish American, LGBTQ, and white communities, as well as elected officials. Black Lives Matter Global Network issued a statement that read in part “we know that an attack on any of us is an attack on all of us.” They also represented a profound change because Arab and Muslim Americans, working in tandem with immigrant rights and faith-based groups, participated in the organizing leadership. In prior decades, Arab and Muslim Americans stood largely alone, treated mostly as pariahs by mainstream activists. After 9/11, when they were being hounded by agencies of the US government, they were largely, but not totally, undefended. All that changed in the ensuing years as the US government’s draconian policies uncovered no terrorists — who it had alleged were “hiding” among American communities — laying bare their racialized foundation, and as Arab American civic organizations and Muslim American faith-based associations cultivated shared-interest political alliances, including with groups unimagined just a few years back (e.g., LGBTQ and Jewish Americans groups).

These actions were supplemented by others forms of non-violent dissent, including a one-hour strike organized by New York City’s Taxi Workers Alliance on January 28th, who declared in a statement “Our 19,000-member-strong union stands firmly opposed to Donald Trump’s Muslim ban. As an organization whose membership is largely Muslim, a workforce that’s almost universally immigrant, and a working-class movement that is rooted in the defense of the oppressed, we say no to this inhumane and unconstitutional ban.” On February 2, Comcast employees walked out in multiple locations, and in an unprecedented action, Yemeni American shopkeepers held a bodega strike during which more than 1000 New York area stores were closed for the day, and thousands of shopkeepers marched in protest. The strike and protest were organized through the efforts of a range of Yemeni-American activists and coalesced into the founding of the New York-based Yemeni American Merchants Association.

The Progression of the “Muslim Ban”

Attorneys filed motions in a range of jurisdictions on behalf of those affected by the ban and on February 3 the Executive Order was stayed by a federal judge, blocking its implementation. President Trump issued a revised order (13780) on March 6 which removed Iraq from the ban and exempted U.S. visa holders and lawful permanent residents (also known as green card holders), but otherwise added a further 90 day travel ban on nationals of the remaining 6 countries and a 120 day suspension of the refugee admissions program. Within ten days this order too was stayed in the federal courts. In June (26), the U.S. Supreme Court temporarily lifted the ban for individuals with a “bona fide relationship” to a person or entity in the U.S., allowing family reunification to proceed (in theory at least).

Trump’s third effort, Proclamation 9645, issued on September 24, 2017, was framed in the language of information-sharing and identity management practices instead of terrorism. It argued that the governments of subject countries did not have adequate practices — such as, electronic passports, criminal data sharing, reporting lost/stolen passports, and providing information on known and suspected terrorists — to allow US officials to screen out terrorists. It ordered an indefinite ban on the issuance of immigrant visas, and most nonimmigrant visas, for citizens of Iran, Libya, Somalia, Syria and Yemen; added Chad (later removed), North Korea, and certain Venezuelan diplomats to the ban; overrode the bona fide relationship exclusion; and removed Sudan. Rules pertaining to non-immigrants varied by country.[1] The diversionary inclusion of North Korea and certain Venezuelans, countries with limited migration to the U.S., was not missed by those familiar with President Bush’s 2002 Special Registration program, in which North Korea rounded out a list of 25 subject countries, the other 24 being Muslim majority.

Once again attorneys appealed on behalf of affected groups (e.g., U.S. citizen families, professional associations) and the September 2017 proclamation was stayed by federal courts the day before its effective mid-October date. In response, the Trump Administration applied for Supreme Court action. Based on its request, and without reviewing the order, the U.S. Supreme Court on December 4, 2017 permitted temporary implementation of Proclamation 9645. This Administration strategy represented a “now familiar pattern” said Justice Sotomayor in a recent dissent, eroding a “fair and balanced decision making process” (p.7).

Ultimately, on June 26, 2018, a majority of Supreme Court justices upheld the travel ban, specifically noting that the removal of three Muslim majority countries from the ban proved it was not aimed at Muslims, that the ban allows for numerous exceptions, and that it “creates a waiver program open to all covered foreign nationals” (p. 5). As it turns out, this Supreme Court decision had little impact on would be travelers since the December ruling had already inflicted the damage. Indeed, immigration from some of the affected countries dropped precipitously well before the Supreme Court temporarily approved the ban, even though federal appellate courts had stayed their implementation. In the most striking case, in the midst of war, the number of Yemenis granted U.S. permanent resident status dropped by more than half before the ban was (temporarily) approved, and not due to fewer applications. (See “For Yemenis Fleeing War, the U.S. Muslim Ban Means a High Price and Dangerous Wait.”)Hiding behind these numbers is the tens of thousands of dollars spent on applications and their associated costs by persons working long hours in the US to support their family members here and abroad, money now diverted to the arduous wait for an uncertain visa waiver.

While Trump’s campaign call for a total and complete shutdown of Muslims entering the US is not total or complete, a Cato Institute analysis of State department data found a 91% reduction in Muslim refugees between 2016 and 2018 and a 30% drop in immigrant visas issued to nationals of 49 Muslim majority countries, mostly in family reunification cases. More recently (1/20/20) the Trump Administration added new immigration bans for citizens of countries with significant Muslim populations —Myanmar (Burma), Eritrea, Kyrgyzstan, and Nigeria — and made citizens of Sudan and Tanzania ineligible for U.S. diversity visas, awarded by lottery to qualified persons from countries underrepresented among US immigrants. The ban’s current pretext, that its foundation lies in the capacities of states for information sharing and identity verification, means that persons living under conditions of war or genocide, those who are the most vulnerable and in need of safety, will be the first to be denied entry to the US, as it is under those very conditions that access to information and documentation is at its lowest. The bans of Yemenis and Syrians, and more recent addition of persons from Myanmar/Burma, especially Rohingya Muslims, appear most harsh for these reasons.

POLICY, PROTEST, POSSIBILITIES

The first implementation of the ban directly affected persons arriving at U.S. (among many other) airports, and provided locations for dissent, protest, and media coverage. Since then, the locus of the ban’s impact has shifted to consulates abroad, an action that scholars refer to as “remote control” (coined by political scientist Aristide Zolberg). It is not easy to send U.S. groups to Djibouti, Egypt, Lebanon, Turkey, Somalia or Libya to protest and without protest, the U.S. media are not interested. In a similar way, persons seeking asylum at the U.S. southern border have been moved largely out of the sight of activists and reporters due to the Trump Administration’s remain in Mexico policies. Avenues of popular dissent and non-violent protest are now quite limited.

On the Congressional level, the U.S. House of Representatives convened its first oversight hearing on the Muslim ban (Proclamation 9645) on September 24, 2019, almost two years after it went into effect. There, a State Department representative reported that the waiver process had been considerably sped up by automation, but by the end of August, only 7,679 waivers had been issued, most of them in the past few months, out of more than 72,000 applications (11%). Of these, 4,031 had been issued to Yemenis. Clearly, Congressional oversite, as well as using up to date computer technology (“automation”), matters because more recent data indicate that more than 4000 waivers were issued to Yemenis between October 1st 2019 and January 31st, 2020, bringing the total number of waivers granted to them to 9319 since 12/7/17. In this 4-month period, 77% of Yemeni visa applicants were considered for waivers, of which 72% were approved. Syrians and Iranians did not fare as well. For Syrians, 52% of immigrant and nonimmigrant visa applicants were considered for waivers, with a 35% approval rate. For Iranians, 82% were considered for waivers, with a 17% approval rate. [The State Department’s website ]

More recent protest action has been focused on the NO BAN ACT (National Origin-Based Antidiscrimination for Nonimmigrants Act), a Congressional effort that would limit the President’s authority to suspend or restrict “aliens” from entering the United States, terminate presidential actions implementing such restrictions (such as the Muslim ban), and prohibit religious discrimination in immigration-related decisions. Introduced by Representative Judy Chu in the House (H.R. 2214) and Senator Chris Coons in the Senate (S. 1123), in mid-March the Act had 219 House co-sponsors and 40 in the Senate. According to Muslim Advocates, more than 400 civil rights, faith, national security, and community groups and more than a dozen major corporations support the bill “because separating families is immoral and religious freedom is meant for ALL.” Scheduled for a House vote in mid-March, the Act was recently taken off the table due to the current crisis. As it would limit presidential powers, require consultation with Congress, and demand reporting of the DHS and the State Department, the Act was unlikely to pass in the current Senate. With limited avenues available for expressing opposition, whether through civic protest, the appellate courts, or Congress, what remains for dissenters is the popular vote on election day.

Louise Cainkar, Associate Professor and Director of Peace Studies, Marquette University


[1] For example, Iranians could still enter under valid student (F and M) and exchange visitor (J) visas, but were to be subject to enhanced screening and vetting. The language for Chad, Libya and Yemen stated that nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, were barred. For Syria, all immigrants and nonimmigrants were banned, whereas for Somalia the former were banned and the latter subject to enhanced screening and vetting.