NOTE: This executive order has now been superseded by a new executive order, 3/6/2017.
It can be hard to sort out reality from rumor, and it seems like whoever we’re talking to at the moment thinks our news sources are either too liberal or too conservative. Coupled with this, the rhetorical traditions and contexts of newspapers (liberal or conservative) don’t include the same conventions of citation that I depend on in order to evaluate claims (more on that another time). So what are the original sources that everyone’s reporting on and interpreting? I’ve decided that tracking down these primary sources makes a pretty good hobby for a librarian, so here’s what I’ve collected so far on the topic of Trump’s Executive Order on immigration.
But first, two caveats: 1) Not all knowable things are knowable using official, original published sources, but that’s the limit I’ve set for myself even when that’s inconvenient or frustrating, and 2) I am a librarian trained in tracking down and evaluating sources — nothing more or less than that. I’m doing my best to find the most authoritative version of the primary sources behind the news, and I welcome suggestions and corrections. If you or someone you know would like to add to my collection of primary sources, please let me know.
I will update this post as more information becomes available (and note any updates clearly).
Who does the Executive Order restrict from entering the United States, and for how long?
The Executive Order “Protecting the Nation From Foreign Terrorist Entry Into the United States” (January 27th, 2017) suspends the U.S. Refugee Admissions Program for 120 days. [Edited to add: Here is information from the State Department on the U.S. Refugee Admissions Program.]
It also suspends visas and entry of immigrants and nonimmigrants from Syria indefinitely and “from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)” for 90 days. The paragraph concludes: “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).” So which countries are referred to, specifically?
- Section 277(a)(12) of the INA, 8 U.S.C. 1187(a)(12) is part of the Visa Waiver Program for Certain Visitors. This particular section states that the Visa Waiver Program does not apply to people who have been to “Iraq, Syria, or any other country or area of concern,” regardless of these people’s nationality, since March 1, 2011 (meaning that people who have been to these countries would need visas to enter the United States). Countries or areas of concern will be decided by the Secretary of State.
- In January 2016, when the Department of Homeland Security began implementing updates to the Visa Waiver Program (H.R. 158 – Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which had passed the House but then got rolled into H.R. 2029 – Consolidated Appropriations Act of 2015 and was signed into law that way on December 18th, 2015). At that time, DHS announced that Iran and Sudan were officially added to Iraq and Syria as countries of concern, bringing the total to 4.
- In February 2016, the Department of Homeland Security announced that Libya, Somalia, and Yemen had been added to the list of countries of concern, bringing the total to 7.
After the Executive Order was signed, further official documents provided clarification and updates.
- On January 27th, 2017 The Deputy Assistant Secretary for Visa Services, Edward Ramotowski, issued an internal memo, which says: “I hereby provisionally revoke all valid immigrant and nonimmigrant visas of nationals of Iraq, Iran, Libya, Sudan, Syria, and Yemen, subject to the exceptions discussed below.” Those exceptions are: “the following nonimmigrant classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas” and “any visa exempted on the basis of a determination made by the Secretaries of State and Homeland Security” on a “case-by-case basis.” (This memo was made public as part of the Louhghalam et al v. Trump case 1:17-cv-10154 (D. Mass.). Information about that case, including links to all available primary sources associated with the case, are available through the University of Michigan Law School’s Civil Rights Litigation Clearinghouse.)
- On January 29th, 2017, DHS Secretary John Kelly announced: “I hereby deem the entry of lawful permanent residents to be in the national interest,” making green cards a “dispositive factor” in the case-by-case analysis of immigrant and nonimmigrant entry into the United States.
As of February 3rd, 2017 the main provisions of this Executive Order have been halted by Judge Robart’s Temporary Restraining Order.
- [Update 2/4/2017] As of February 4th, the State Department announced that it is complying with Judge Robart’s Temporary Restraining Order and allowing visa holders to travel.
- [Update 2/5/2017] The 9th Circuit Court has created a website on which they are posting official documents related to this case, including Sunday’s denial of Trump administration request for an emergency stay of Judge Robart’s Temporary Restraining Order.
- [Update 2/16/2017] Today the Department of Justice indicates that the President intends to rescind this Executive Order and draft a new one. They say, “Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns” (Supplemental Brief, page 4)
Are Muslims banned?
The Executive Order does not mention specific religions in its current restrictions.
The only mention of religion as a factor in executing the provisions of this order comes in section 5(b), where it says that after the 120 day suspension of the U.S. Refugee Admissions Program, when that program resumes, the Secretary of State should “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.” The CIA World Factbook includes official statistics on religious affiliation by country, which indicates that Muslims from these countries seeking refugee status will not be allowed to make their claims on the basis of religious-based persecution since Islam is not a minority religion in any of these countries.
[Update 2/4/2017] The class action lawsuit Al-Mowafak v. Trump, case 3:17-cv-00557 ( N.D. Cal. ) is explicitly testing the idea of the “Muslim ban” by using Trump’s tweets in conjunction with his Executive Order.
[Update 2/11/2017] The States of Washington & Minnesota v Trump case 2:17-cv-00141 (W.D. Wash.) is explicitly testing this question as well.
Is the Executive Order Legal?
Two sections of the United States Code deal with this question, one giving the President broad authority in this area and the other setting limits.
8 U.S. Code § 1182 – Inadmissible aliens (enacted in 1952) reads:
(f) Suspension of entry or imposition of restrictions by President Whenever 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, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
8 U.S. Code § 1152 – Aliens and Nationality (enacted in 1965) reads:
(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
Many court cases are currently testing the legality of the Executive Order and its ramifications. Official documents associated with these cases are available through the University of Michigan Law School’s Civil Rights Litigation Clearinghouse (which is useful because many legal documents are otherwise only available for a fee, even though PACER). Of particular note:
- On February 3rd, 2017, Judge Robart issued a Temporary Restraining Order as part of the States of Washington & Minnesota v Trump case 2:17-cv-00141 (W.D. Wash.). This order says that the federal government is not allowed to enforce sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order. The order is nation-wide and in effect until we hear otherwise.
- On February 3rd, 2017, White House Press Secretary Sean Spicer issued a statement via Facebook saying that the White House will block Judge Robart’s Temporary Restraining Order “at the earliest possible time” and citing 8 U.S. Code § 1182 as the legal grounds for the Executive Order. (Yes, Facebook was the official announcement vehicle. I triple checked.)
- [Added 2/5/2017] The Al-Mowafak v. Trump case 3:17-cv-00557 ( N.D. Cal. ) is explicitly testing the question of whether Trump’s Executive Order is a “Muslim ban” and, because of that, its constitutionality. The complaint in this class action suit draws on Trump’s tweets to make its claims.
Is this Executive Order Like Obama Administration Immigration changes?
Legislative documents are searchable at Congress.gov, and official government documents of many kinds (including those of the Executive branch) are searchable via the Federal Register. I did a search of all bills immigration legislation from 2009 through 2016 and that mentioned immigration, aliens, refugees, or visas and that became law. I also did a search of all documents from Obama’s Executive Office of the President that mentions immigration, aliens, refugees, or visas. Sifting through the results, here are the items that stood out potentially relevant (if I missed anything, please let me know):
- July 24th, 2011 Presidential Proclamation “Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions” bars entry for any individual alien affected by the United Nations’ travel ban and any individual alien who meets the criteria of various previous executive orders (listed in Annex B).
- August 9th, 2011 Presidential Proclamation “Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Participate in Serious Human Rights and Humanitarian Law Violations and Other Abuses” bars “entry into the United States, as immigrant or nonimmigrant” any individual alien who has been involved with terrorism or war crimes.
- April 22nd, 2012 Executive Order “Blocking the Property and Suspending Entry Into the United States of Certain Persons With Respect to Grave Human Rights Abuses by the Governments of Iran and Syria via Information Technology” blocks individual aliens who have provided goods or services to Iran or Syria that were likely to contribute to those two countries committing human rights violations.
- May 1st, 2012 Executive Order “Prohibiting Certain Transactions With and Suspending Entry Into the United States of Foreign Sanctions Evaders With Respect to Iran and Syria” blocks individual aliens who have violated economic sanctions against Iran and Syria.
- April 3rd, 2014 Executive Order “Blocking Property of Certain Persons With Respect to South Sudan” blocks individual aliens who have violated sanctions against South Sudan.
- November 26th, 2014 Presidential Memo “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century” directs stakeholders including DHS to improve visa processing systems.
- November 26th, 2014 Presidential Memo “Creating Welcoming Communities and Fully Integrating Immigrants and Refugees” creates a task force to investigate visa processing systems and make recommendations for changes.
- December 18th, 2015, H.R. 2029 – Consolidated Appropriations Act of 2015, which included many previously separate bills. Of specific interest, it included the language of H.R. 158 – Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. This language exempts people who have been to”Iraq, Syria, or any other country or area of concern” from the Visa Waiver Program (i.e. it requires that individuals who have been to those countries must apply for visas rather than being allowed to enter the U.S. without visas under certain circumstances).
[Update 2/14/2017] Notable among Obama’s actions is the emphasis on “individual aliens” who have been found to violate laws or sanctions. This maintains the 14th Amendment‘s Due Process rights, which the courts have ruled apply to non-citizens as well as citizens. (See for example Hague v CIO: “Freedom of speech and of assembly for any lawful purpose are rights of personal liberty secured to all persons, without regard to citizenship, by the due process clause of the Fourteenth Amendment.” And, “It has been explicitly and repeatedly affirmed by this Court, without a dissenting voice, that freedom of speech and of assembly for any lawful purpose are rights of personal liberty secured to all persons, without regard to citizenship, by the due process clause of the Fourteenth Amendment.”)
Costs associated with this Executive Order
Other useful sources on immigration and refugees
- To see immigration statistics over time and by country, see the Yearbook of Immigration Statistics.
- To see visa statistics over time and by country, see The Report of the Visa Office.
- The Refugee Processing Center provides refugee statistics.
Notes about updates:
- 2/5/2017 – updated “State of Washington v Trump” to “States Washington & Minnesota v Trump” in keeping with the updated official name of the case.