Immigration Executive Order – Foreign Terrorism

The White house did not provide on its website the full text of its Executive order related to foreign terrorism, but they did share it with media outlets. The full text to Protecting the Nation From Foreign Terrorist Entry Into the United States is available the New York Times via the embedded link. Again, I will highlight portions that I think are worthy of discussion.

Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

It’s true that there was a major failing with regard to the individuals involved in the 11 September 2001 terror attacks here in the US, as identified by the 9-11 Commission. The problems stemmed from inability to identify fraudulent documents to a lack of follow up when individuals violated the terms of their visas (such as enrolling in flight school while on a tourist visa) or overstayed their visas. Since then, there have been both policy modifications and technological innovations that make the visa process more secure. Since the September 11 attacks, there have been no major terror incidents remotely approaching the magnitude of what transpired that day. Additionally, the overwhelming majority of thwarted and executed attacks have been due to radicalization that took place while the culprit was in the US, as opposed to entering with a clear intent to do harm. This opening identifies a real concern, but overstates the threat by implication through its lack of detail and context.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

Numerous is deliberately vague. It is factual that “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001.” It is also true that numerous native-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001. Neither of these statements provides a proper context for assessing a potential threat.

In the not too distant past I performed analytical work (among other duties) for the Citizenship and Immigration Services (CIS), a component of the Department of Homeland Security (DHS). One of my functions was to critically evaluate analytical products from the field. A memorable product (provided at the unclassified level) attempted to identify programs most associated with Homegrown Violent Extremism (HVE). There is an obvious problem with the premise; in an HVE case the subject becomes radicalized while in the US. That being the case, the method of entry is immaterial in and of itself.

The analyst further provided data points to support the analytical conclusion, which is a good thing to do when trying to convince senior leadership that there is a particular threat from a specific program. The fist data point had to do with instances of HVE over a period of time. The data was sourced to “think-tanks” – specifically the Heritage Foundation and New America – and since I can no longer access DHS data I will defer to the numbers cited and assume their relative accuracy. From September 2001 to December 2014 the number of US-based individual implicated in terrorism was 260. Of that 260, 54% -or about 140 – were US citizens at birth. That only leaves 120 foreign-born individuals over that 13-year period involved in either the plotting or execution of a terror attack.

I do not have data on the total number of immigrants and non-immigrant entries during that period. For the purpose of my rebuttal to the analysis, I focused on refugees. (This was the group that had the largest number of terror offenders for the period covered.) During the period from January 2002 to December 2014 there were 714,457 refugees admitted. During the period from September 2002 to December 2014 there were 41 refugees involved in planning or carrying out terror attacks. Obviously the two periods do not perfectly align, but they are close enough to make the point about statistical likelihood of radicalization. Running these number as they are – not accounting for the fact that the periods are slightly out of sync and that those involved in terror attacks may not have immigrated during the specific period in question – we find that 0.0057% or 1 out of every 17,426 refugees became radicalized after that fact. This is inconsistent with a presentation of a rampant problem.

The notion of vigilance in issuing visas or granting immigration benefits is itself reasonable. The implication that the US offices charged with issuing visas and granting immigration benefits are not vigilant is inaccurate, as is the direct statement that “[d]eteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States.” Terrorists may look for opportunities based on deteriorating conditions, but analysis suggests that they are unlikely to focus their efforts on infiltrating systems with long wait times and low probabilities of success.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

It’s interesting that the Executive Order frequently cites Immigration and Nationality Act (INA) Section 212 [8 U.S.C. 1182] , but the author seems to have had little familiarity with what INA 212 actually states.The section is titled General Classes of Aliens Ineligible to Receive Visas and Ineligible for Admission; Waivers of Inadmissibility, and it covers most if not all of these concerns. There are additional acts (such as the Violence Against Women Act) that apply to immigration cases as well, to make sure all of the gaps are covered. The language of this portion of the Executive Order  implies that these concerns and criteria for inadmissibility are not already in places, when they clearly are.

As with the last brief discussion of an executive order (dealing with illegal immigration via the Southern border), the specific details on the order are predicated on misunderstandings and misinformation. Because the issue is never correctly identified the proposed solutions will have little impact of the stated concern, which is to keep people in the US safe from terrorism. Some of the specific points bear highlighting, however.

Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

This presumes that our agencies do not already know what information is required to vet an applicant, or that they do not have a vetting program in place. Such a presumption is incorrect.

(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

This is an interesting request. A failed state or a state embroiled in a violent civil war, from which people would logically be fleeing, is unlikely to have any sort of information provision for refugees. For regular visa issuance this might be a realistic concern, but in the case of refugees, which are also covered by Section 3, this could have the effect of ensuring that we routinely refuse benefits. This would completely defeat the purpose of the Refugee Admissions Program.

(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).

We know the countries targeted by this order are Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. With the exception of Somalia, no immigrants from these countries have been implicated in any terror plots in the US. As before, the available data on terror attacks by immigrants does not reveal a significant threat (especially given that the total number is lower than that of terror attacks planned or conducted by native-born citizens). The minuscule threat that might exist does not emanate from the countries identified,so that puts that value of this order in question with relating to its stated intent. This portion further implies that there is not currently a process for identifying potential threats, which is incorrect.

More significantly, the language is broadly applied to immigrants and non-immigrants, meaning any non-citizen can be impacted. People who already live and work here could be denied re-entry if they travel abroad, to include Lawful Permanent Residents (LPR). CNN reports that DHS originally interpreted the order to be inapplicable to LPRs, but that the administration mandated that LPRs would be covered by this order, and that DHS could allow permanent residents entry on a case-by-case basis only.

(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 otherwise blocked.

This is a significant paragraph. this allows DHS and State to issue visas and immigration benefits when in the “national interest.” That is vague guidance, and could allow DHS to admit most people, depending on who approves each case. The specific “case-by-case” approval process is not provided in this section.

(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.

The above paragraph is from Section 5 – Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. One might infer that this is meant to include Christian minorities only, as has been indicated by some other public statements; while the plain language does not identify any religion, the targeted countries are majority Muslim. It can reasonably therefore be interpreted as deliberately disfavoring Muslim refugees.

These excerpts are not the only portions worthy of review, but a line-by-line examination of the entire document is not warranted here. The order is predicated on dubious assertions, and fails to narrowly target its applicability to persons, programs, or areas of legitimate concern, and generally overstates  a risk that is easily outweighed by benefits to our economy and international goodwill.

I encourage you to read the full document and contact your representatives regarding implementation of the order – especially the use of exceptions to allow fully vetted immigrants and visitors into the country.