Lawfare breaks down the problems with Trump's executive order on Muslim immigration

[714562]

Malevolence Tempered by Incompetence: Trump’s Horrifying Executive Order on Refugees and Visas

It's long, I'll summarize the key points.

First, quoting CNN:

Administration officials weren't immediately sure which countries' citizens would be barred from entering the United States. The Department of Homeland Security was left making a legal analysis on the order after Trump signed it. A Border Patrol agent, confronted with arriving refugees, referred questions only to the President himself, according to court filings.

. . .

It wasn't until Friday -- the day Trump signed the order banning travel from seven Muslim-majority countries for 90 days and suspending all refugee admission for 120 days -- that career homeland security staff were allowed to see the final details of the order, a person with the familiar the matter said.

. . .

The policy team at the White House developed the executive order on refugees and visas, and largely avoided the traditional interagency process that would have allowed the Justice Department and homeland security agencies to provide operational guidance, according to numerous officials who spoke to CNN on Saturday.

Homeland Security Secretary John Kelly and Department of Homeland Security leadership saw the final details shortly before the order was finalized, government officials said.

Friday night, DHS arrived at the legal interpretation that the executive order restrictions applying to seven countries -- Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen -- did not apply to people who with lawful permanent residence, generally referred to as green card holders.

The White House overruled that guidance overnight, according to officials familiar with the rollout. That order came from the President's inner circle, led by Stephen Miller and Steve Bannon. Their decision held that, on a case by case basis, DHS could allow green card holders to enter the US.

Some of the actual implementation problems

• Sec. 3(c) bans "entry"—which to the best of my knowledge has had no meaning in the Immigration and Nationality Act (INA) since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. Pre-IIRIRA law did use the term “entry,” but that is no longer the case.
• Section 3(g) talks of waivers on a case-by-case basis for people who are otherwise denied visas or other benefits under the immigration laws pursuant to the order. If a person needs a waiver to obtain "other benefits," does that mean that nationals of the seven countries are denied any benefit under the INA without a waiver, benefits such as naturalization, adjustment of status, or temporary protected status, even if they are already in the US?
• On its face, the order bars entry of both immigrants and non-immigrants. Again, as entry is not defined, and no one was given any time to draft implementing guidance or to clarify any points, it’s no surprise that Customs and Border Protection doesn’t seem to know how to apply it to lawful permanent residents (LPRs). The INA, at section 101(a)(13)(C), says that green card holders will not be deemed as seeking admission absent the factors enumerated therein—factors that do not include an executive order banning entry. Yet Reuters and The Guardian are both reporting quotations from a DHS public relations official, stating that the order does apply to LPRs. If that interpretation lasts, look for DHS to get its ass handed to it on a platter in federal court—a defeat it will richly deserve.
• Another big mystery is how the order will apply to asylees. Will people even be allowed to apply? On the one hand, the right to seek asylum is right there in the INA. But to apply for asylum, you have to be interviewed by a U.S. Citizen and Immigration Services officer to determine if you have a credible fear of persecution. Is that interview a benefit under the act? And if so, is it barred? From what I hear, right now anyway, Customs and Border Protection is not allowing anyone to claim asylum and have a credible fear interview.

I could go on, but you get the point. This order is a giant birthday present to the ACLU and other immigration litigators. And godspeed to them in going after it—which, as I noted above, they are already succeeding in doing.

But the incompetence actually does not stop at running a process that causes legal chaos and probable manhandling by the federal courts.

Consider, for example, the likely diplomatic fallout. In his first week in office, Trump has managed to create a major rift with Mexico, our peaceable neighbor to the south with whom we have no earthly reason to be spatting and haven’t had bilateral problem this serious since Pancho Villa. Trump’s new order seems certain to raise tensions with other countries too—and not just the countries whose nationals it targets (Iran, for example, which today restricted travel by U.S. nationals in retaliation; a great many U.S. citizens have family in Iran and now can’t visit them).

Because the order applies to dual nationals, where a person is a citizen of one restricted country and one non-restricted country, it appears to bar entry to hundreds of thousands of citizens of the U.K. and Canada—including a British Member of Parliament and a Canadian-Iranian consultant who lives in the United States but now can no longer safely travel to her business’s headquarters in Toronto without being blocked from reentry. British Prime Minister Theresa May wasn’t showing a lot of spine today over the matter, but what happens when she starts getting political blowback at home for the not standing up to the U.S. over its treatment of her nationals?

And then there's the reporting requirement:

In some ways, the most stunning incompetence in the document appears in one of the least discussed sections: The section at the end that mandates reporting on the nefarious terrorist activities of foreigners in the United States. This section requires regular reports from DHS on terrorism-related offenses by foreign nationals, and gender-based violence and honor killings by foreign nationals (because remember, Mexico sends us their rapists and Muslims all kill their daughters when they date Americans).

The White House appears to have included this section because the Trumpists think it will show that large numbers of foreigners are coming to the United States and committing acts of terrorism here. But that is delusional, and the data will not show that—as I suspect someone at DHS would have pointed out had they had the chance. [

...

In other words, the executive order sets up a reporting mechanism that will almost certainly falsify its own premise.

Upholding this abortion of an order suddenly became a litmus test for the new SCOTUS appointee.

 

[88m3]