Travis Weber, J.D., LL.M.
March 13, 2017
This is Part 3 of a 3-part series. Here are Parts 1 and 2.
On March 6, President Trump signed a revised executive order restricting entry to the United States from certain countries, which followed heated controversy and legal battles arising from the initial executive order temporarily halting entry to the United States for certain groups of people. In light of the new order, and in the wake of the controversy surrounding the issue more broadly, it’s helpful to separate the multiple issues—often conflated with one another—playing a part in this discussion. One of these issues is the impact of the orders on refugees—who, though only one of the multiple groups affected—have occupied much of the discussion.
Issue #3: On Refugees – Good Arguments Require Precision
Putting aside the media hysterics and negligent or willful abuse of Scripture, there are many who are attempting to engage in well-meaning discussion of these orders and the immigration issue more broadly. Unfortunately, many people protesting President Trump’s actions do not really understand how the immigration system actually works, or what they would recommend if asked how to fix its security concerns. We all would benefit from learning before speaking into the haze and fog of this debate, and should go back to the actual sources. In this case, that is the initial executive order, and the new executive order.
What do the orders say?
Section 3 of the initial order covered the suspension of all visas to individuals from certain countries, and Section 5 covered the suspension of the refugee program. The other sections direct various actions to improve immigration security generally. Exactly what among these provisions is objectionable (and how) is often quickly lost in this discussion, and consequently, is often lost on many who seem to generally oppose the order.
The new order removes Iraq from the list of countries, removes the indefinite ban on Syrian refugees, and takes out language which prioritized those for admission who were persecuted for their faith. It also doesn’t ban lawful U.S. permanent residents, or prevent people from entering the United States traveling on valid visas already issued. The new order also lays out policy reasons for why this action has been taken.
Aside from the removal of protections for religious minorities (which would have been helpful to leave in—for the United States already considers religion in refugee law, and these minorities are in dire need of our help), the refugee admissions provisions remain virtually unchanged between the two executive orders.
Use of the term “refugee”
Throughout this immigration debate, the term “refugee” is often used carelessly. But it has a precise meaning in U.S. law. Individuals entering the United States can do so under a number of visa programs or claim asylum. Entering as a refugee is covered by a specific program, and this program is covered only by Section 5 of the initial order and Section 6 of the new order (the other provisions of the orders cover other avenues of entry). When we speak of “refugees” legally, we refer to people entering through this program. This does not include immigrants entering through other programs, crossing the border illegally, or even showing up at our border to claim asylum.
While many may agree that other elements of the orders and the immigration system overall (to include student and worker visas) certainly need scrutiny, there is a debate as to whether the refugee program alone can be improved, or whether we will achieve quite minimal gains from restricting access through this program while at the same time harming those who need our protection. There are arguments for and against the refugee restrictions in the orders.
Arguments for the refugee restrictions
It is clear that some Muslims with terrorist ties have entered the United States through our refugee program (and the new order notes that more than 300 people who entered the United States as refugees are currently under terrorism investigations by the FBI). Additionally, while vetting for refugees is already rigorous, the Obama administration accelerated the number of people who entered the country near the end of the term. In these circumstances, it’s a reasonable approach to ask how that was done. Some may claim that the vetting is already as strict as possible, and there is always the risk that terrorists slip through. New developments call for new assessments; we are aware, for instance, that Yezidi girls who have been rescued from ISIS captivity are still in touch with their captors due to Stockholm Syndrome. Have we accounted for the risk that one of them might maintain contact once given safe haven in the United States? It is a reasonable position for a U.S. citizen to want to continue to assess security risks until they are addressed.
Moreover, we must be prudent and remain aware of the motivations of different actors. Some large refugee assistance groups may see funding cut under the orders, and it is understandable if they feel pressure to oppose them for that reason in addition to their convictions regarding refugees. At a minimum they have a conflict of interest on this point.
Additionally, we should be careful of a mentality which assumes that large-scale immigration is most helpful to people. Many displaced persons overseas want to stay in their countries. Solutions which help create peace and stability where they live are just as helpful, if not more so, than uprooting them to bring them to a different culture in the United States. Those arguing for widespread and aggressive immigration on grounds of compassion should ensure they are not assuming it is the only compassionate solution.
Arguments against the refugee restrictions
While the executive orders contain many provisions that will improve security overall in the visa-granting process, those halting the refugee program may do little to improve security, while stunting an important program for those fleeing persecution. The United States is currently vulnerable to terrorists seeking to exploit different avenues of entry: H1Bs, student visas, and claims to asylum, for instance. The refugee program, in which vetting occurs outside the country, is the last place terrorists would go if they were trying to enter the United States.
While Europe has experienced difficulty due to increasing numbers of refugees, the situation is not analogous to that of the United States, as the way refugees enter the United States mitigates many of those risks Europe faces. The term “refugee” has been applied to those flooding into Europe but it is inaccurate to think of those same people as refugees to the United States—a point I discuss above. If these people flooded our shores like they’ve done to Europe’s, they would be asylum seekers, not refugees covered by the United States Refugee Admissions Program (USRAP). To enter the United States through the USRAP, a potential refugee first has to go to a country where he or she can apply through the United Nations, go through the UN process, then be chosen by the UN to be resettled in the United States (the UN picks their country of resettlement, not the refugee). This process often takes four years. Thus, if people are concerned about “refugees” arriving and “flooding” our shores, they are not really concerned about refugees as that term is used in law and policy (and the USRAP), but are concerned about other types of entrants—either asylum seekers, or those entering illegally.
While the risk of a terrorist entering through the USRAP is not zero, compared to other avenues of entry, it’s much more difficult and terrorists are much less likely to use it. A significant area of risk is the database system used to assess refugees, which could be bolstered and improved; but fixing this may not require a pause in the USRAP program as the orders require. While we obtain a bare minimum of security gains by restricting the USRAP, the argument goes, we cause significant suffering to those who do need our help. In Lebanon, for instance, Christian Syrian women are prostituting themselves and selling their daughters into child marriages to survive. These people need our help, and we shouldn’t shut off their lifeline when the security risks of that lifeline are already minimal. We should address any security risk as soon as possible so we can get our refugee program back up and running so it can help those it is meant to help.
The initial executive order was not without its problems. It seems that the roll out and implementation could have been accomplished more smoothly. There were reports of lawful permanent residents and U.S. military translators being held up; these matters should have been addressed before the order was issued to avoid confusion. By now, certain steps have been taken to smooth out some of these bumps, but they could have been addressed from the beginning. Thankfully, the new executive order does not bar holders of valid visas or lawful permanent residents from entering the United States, and the new order will take effect on March 16 (hopefully allowing for smooth roll out and implementation), as opposed to the initial order which took effect immediately.
These changes in the new order go a long way toward fixing some of the problems in the initial one, though obviously many will still disagree about immigration policy more broadly. At the end of the day, we should acknowledge that reasonable people (including fellow Christians) may disagree about immigration policy and the executive orders (including their refugee provisions).
Reaching that conclusion alone would go a long way toward promoting rational discourse and easing the emotional gridlock in the public debate on this and other issues.