Harvard Law & Policy Review

immigration ban

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The Travel Ban is Just for Show—The Real Threat is from Individual Officials Who Can Act on its Discriminatory Message

By Angela D. Morrison*

The administration’s revised travel ban represents only the most visible part of the administration’s discriminatory immigration policy.

The U.S. immigration system has a sexist and racist history. The travel ban, along with many of the administration’s other immigration policies, builds on that legacy. Because the administration has been so apparent in its discriminatory motives for the travel ban, lawyers challenging the ban have an unusual opportunity. Advocates can now challenge a category of actions—the consular processing of visas and inadmissibility decisions at the border—that historically has been unreviewable.

But even if immigrant rights advocates win this battle, the administration’s racist and anti-Muslim message to individual immigration officials remains. If courts enjoin the revised ban, individual officials will still be able to operationalize the administration’s message.

 

The Travel Ban

The Executive Order purports to protect the United States from “terrorist activities by foreign nationals admitted to the United States.” There are two main components to the travel ban portion of the Executive Order—a 90-day suspension on the admission of nationals from designated countries and a 120-day suspension of the refugee admissions program.

First, the ban suspends the “unrestricted” entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days. The ban applies only to nationals of the six countries who do not have a visa and are outside of the United States on March 16, 2017—the effective date of the order. Further, it entitles anyone whose visa the government marked as revoked or canceled because of the January 27 travel ban to a new travel document and prohibits that as a basis for an inadmissibility finding.

It also excepts several categories of noncitizens from the ban, including: lawful permanent residents; parolees; dual nationals traveling on a passport used by a non-designated country; individuals traveling on diplomatic or other related visas; individuals who have been granted asylum; admitted refugees; and individuals who have received protection pursuant to various International treaties.

The order also allows consular and Customs and Border Protection (CBP) officers to issue a visa to and admit nationals of the designated countries on a case-by-case basis. Officers can grant a waiver to individuals who have previously worked or studied in the United States; who have significant ties to the United States through family, work, or study; who are infants, young children, adoptees, or individuals needing urgent medical care; and who belong to other categories related to U.S. international obligations.

Second, the ban suspends refugee admissions for 120-days. The suspension does not apply to refugees whom the State Department already scheduled for transit. DHS and the State Department may admit refugees on a case-by-case basis during the ban. The agencies must determine that the refugee does not pose a threat to national security or welfare, and that (1) the refugee’s admission lets the United States meet its international obligations or (2) the denial of admission would result in undue hardship.

 

The Legal Challenges to the Ban

As others have written, the administration’s actions and all available evidence call into question the purported justification for the ban. The administration’s delayed implementation of the ban, the exceptions to the ban, and the lack of evidence that nationals of the listed countries have engaged in terroristic activities, highlight that the administration’s justification is a pretext.

Moreover, the administration has provided plenty of evidence that the ban was motivated by anti-Muslim sentiment. Hawai‘i is the first party to challenge the revised travel ban, primarily on that basis.

 

Lurking Below the Surface – the Discriminatory Exercise of Discretion

The Supreme Court’s unwillingness to review individual immigration officials’ decisions means that there are few remedies for noncitizens denied visas or entry at the border. As a result, officials who are emboldened by the travel ban’s message and are better able to hide their discriminatory motives will succeed where the administration’s travel ban has failed.

When the Court has been willing to review State Department and CBP officials’ discretionary decisions, the Court has done little beyond determining whether the noncitizen received the process required by Congress. In Kerry v. Din and Kleindienst v. Mandel, the Court refused to look beyond whether the immigration official cited a facially legitimate reason for denial or exclusion. In Din, the Court determined the State Department official only needed to provide a citation to the statute that stated the ground of inadmissibility and did not have to provide any other explanation or support for the decision.

If all officials must do is cite to the statutory provision, officials can easily hide their discriminatory motive. Unfortunately, it will prove difficult, if not impossible, for noncitizens denied visas or entry to show that it was for an impermissible reason. That means officials who take the administration’s message to heart are the threat lurking below the surface.

 

*Angela D. Morrison is an associate professor at Texas A&M University School of Law. She researches in the areas of employment and immigration law. Professor Morrison formerly taught at UNLV School of Law as a visiting assistant professor. Her previous positions include the Legal Director of the Nevada Immigrant Resource Project, a trial attorney for the U.S. Equal Employment Opportunity Commission, and a law clerk for the Honorable Philip M. Pro (retired), U.S District Court for the District of Nevada.

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Executive Order 9066: #NeverForget

By Jessica Huey*

It was the worst day of his life. That was all he would ever say about it.

Looking at black and white photos of my great-grandfather, the stoicism etched in his expression is impossible to ignore. But to understand his story—that of a quiet, Japanese merchant who came to America with his wife to start a new life in the early 1900s—it becomes clear the extent to which living in America, filled with its golden grain and promises, also took its toll on him.

Like millions of America’s immigrants then and now, my great-grandfather chose a life that he could not anticipate. Silently, he stepped off the boat onto the soil of the Pacific Northwest with only the possessions he could carry. Together with my great-grandmother who would come later, they forged new lives with each step and encountered a future littered with seemingly endless pathways into the unknown.

America has long flirted with its immigrants, promising a life full of opportunity—of fairness under the law. Over the course of history, however, her temperamental outbursts have been indiscriminate; from the early Irish and Chinese immigrants to the Latino and Muslim immigrants of today, America has chosen when to define immigrants as “one of us” or “other.”

Not too long after many immigrants realize that the lottery to which they have a ticket is actually the beginning of a marathon race to the finish, they turn to what is within their power to contribute. Often led to believe that hard work is the missing link to making them “more American,” these immigrants soon discover that being paid under the table is just another way of separating them with invisible barriers from the rest. As they catch the last millisecond of strangers’ sideways glances, they begin to realize that something about them—the way they look, the way they eat, the way they greet others—doesn’t quite fit in. The culminating disappointment of these realizations juxtaposed to their dogged efforts to make America their new home creates an undeniable tension that begins to define the immigrant experience: what exactly does it mean to call America home?

My great-grandfather would get his answer the day the FBI came to his house late one evening to take him away from his family.

The anxiety had been growing for months. It hadn’t been long after Pearl Harbor when an icy veil of suspicion had descended on the Japanese American community in California. It started gradually with the absence of the friendly greetings on the street—invisible cues foreshadowing distance. Then came the signs; “Go home, Japs” they read. The hurt was easier to digest coming from strangers but impossible to mask when it came from neighbors. And then, straight from the mouth of President Roosevelt with Executive Order 9066, my great-grandfather and his family were to become prisoners of their home.

Over the more than thirty years he had lived in America, my great-grandfather had quietly become a leader in his community of Japanese Americans. In Stockton, California, he owned a small trucking company. His work was simple but he kept an eye on the others to make sure everyone was cared for. People gauged his silence for meaning, for direction.

It was one of his many friends that alerted him—the FBI would be coming after him within the next twenty-four hours.

The rest would be a blur. The FBI came for my great-grandfather with orders to take any prominent persons of Japanese descent to be questioned at the local jail. My great-grandfather would not be reunited with his family for months. In the meantime, his wife would be without a husband, and his three American citizen daughters in their twenties would be without a father, but their time would come too. Packing little more than what they had been able to bring to America, they were shipped to the swamps of Rohwer, Arkansas—a prison of another sort. Their careers, their possessions, their lives and American dreams uprooted in one fell swoop.

The suspicions intensified in the camps. The barbed wire that separated 120,000 people of Japanese descent, over two thirds of whom were the American-born children of Japanese immigrants like my great-grandparents, reminded them that America was still not truly their home. Their America was a different one: an America that asked its young sons if they would faithfully serve the country that had just put them and their families behind barbed wire.

By the end of the war, the only crime these 120,000 Japanese Americans were charged with was looking like the enemy. Backed by the government, America had decided that one group above all others warranted increased surveillance.

Raymond Tomikichi Ito—my great-grandfather—passed away long ago. I never had the chance to meet him, but I keep his story close. While the physical prisons have yet to surround another group of immigrants or American citizens since the Japanese internment camps of World War II, America’s hysteria with the “other” is something that should never be normalized. The harm of Executive Orders that promote discriminatory agendas has already been experienced. Let us not forget.

 

*Jessica Huey works as a social sector capacity builder in the Bay Area with FMA, a firm that supports nonprofit organizations strengthen their fiscal management practices. She received her Master’s in Public Policy from Harvard’s Kennedy School of Government and her B.A. from Brown University. Jessica is a fourth generation Japanese-American (Yonsei) on her mother’s side, and fourth generation Chinese-American on her father’s side.

 

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A Drop in the Ocean of Casualties

By Maseeh Moradi*

The recent immigration executive order promises in its title to protect “the nation from foreign terrorist entry.” It does so by barring the entry of, among hundreds of millions of others, all of my aunts, uncles, and cousins (my own parents, once aliens, now citizens, would have been barred as well). Protecting the nation from terrorists evidently means banning everyone from Iran, even though no national from there, or any of the other listed countries, has committed deadly acts of terrorism in the United States since and including 9/11. The order does not care if one is in poor health, elderly, or requires a full minute to walk from one wall of a room to the other. It thus also bans my 97-year-old grandmother, one of the lights of my life.

My grandmother’s name is Tavoos, which means peafowl in Farsi. It fits well, as she is the most beautiful person I know, possessing a heavenliness that only time can bestow. Her beauty comes from raising seven children in rural Iran’s lower class during the mid-20th century, waking up before dawn to begin her daily 16 hours of backbreaking farming and cooking. It’s the beauty of being in the wrinkled twilight of a full life, one marked by the exultation of seeing a son realize his dreams in America and the endless sorrow of burying a daughter many decades too soon.

Grandma Tavoos has been a widow for a quarter of a century now, and during this period she has visited us regularly, and for six months at a time, on a B2 visa. She loves being here, semi-skipping during her morning walks in our backyard and around the block, and, though not able to speak English, excitedly waving to our neighbors. She is deeply proud of these interactions—when she returns to Iran, she always brags about having met, and exchanged smiles, with those Americans. She enjoys watching the NBA, especially the final two rounds of the playoffs (her favorite player ever is Shaq). Ten years ago, we took her to Santa Cruz for a weekend, and it was a transformative experience; she claims that was the closest she has ever been to heaven. When her stay is over, she always takes back two extra suitcases. One is filled with Americana she will gift to her many grandchildren and great-grandchildren. The other brims with large containers of Heinz Hot & Spicy Ketchup, her favorite flavor, but one that is harder to find in Iran (a perfect meal for her is plain Basmati rice drenched with this condiment).

Grandma Tavoos helped raise and educate me. Seventy-two years her junior, I had much to learn. During elementary and secondary school, I was usually the first one home, and she, along with her pots of bubbling fesenjan and aush-e-reshteh, would be there to greet me and ask about my day. Once, in 7th grade, I came home sobbing after doing poorly on a grammar test. She soothed me, telling me that having weaknesses is something to celebrate as a hallmark of existence; after all, even the most beautiful peafowl still has ugly feet. She is wise like this; she always knew the right Hafez couplet, or the right story from her own childhood, to recite when I needed perspective. She originally taught me to read and write Farsi, crafting daily, one-hour lessons during the summer after I completed 5th grade. During those sessions, she was my teacher, not grandma, and would be hard on me until I mastered the lesson. At the end of the hour, the roles would flip, and I would teach her English. She eventually knew the English words for all of the fruits in our house.

In recent years, her mind has stayed as lucid as ever, but her body has worn down. During this time, we have brought her over primarily to take care of her. We help feed and shower her; she showers us in return with the countless poems, legends, and fables she has written and learned over her lifetime.

But the executive order threatens all of that now. Our current administration thinks allowing her into the country would be too much of a threat. While it’s certainly possible that the Supreme Court will strike the order down, or it will be re-written before then, the order’s effects transcend its text; the damage has been done. How can we risk bringing over a soon-to-be centenarian when our president has shown a propensity to act so callously and capriciously at a moment’s notice? Lately, my grandma ends our phone calls with, “I hope I’ll get to see you again at least one more time.” I use confident words to assuage her, but my quivering voice more faithfully reflects my feelings.

My story is just a drop in the ocean of casualties resulting from this order and the rhetorical posture of this administration; many families are facing the prospect of being ravaged. But no executive order, and no demagogue, can outlaw that which is lodged in our hearts. Grandma Tavoos will always be as close as can be, right there in my heart, her wisdom and beauty an inextricable part of my identity. You can exploit people to your political advantage, conflate them with terrorists, threaten to deport them, bar their entry, and even intern them, but you can never sap their capacity to appreciate and love.

*Maseeh Moradi is a 2L at Harvard Law School and a Senior Online Editor for the Harvard Law & Policy Review.