Background

As a presidential candidate, Donald Trump advocated for warrantless surveillance of U.S.-based mosques, openly considered a database of American Muslims and Syrian refugees, and called for a “total and complete shutdown of Muslims entering the United States.” In reference to these and related national security policies, the Trump Administration has since adopted the euphemism “extreme vetting.”

No amount of obscurantist rhetoric, however, can dissociate the president from his xenophobic, anti-Muslim campaign invectives. During his first week in office, President Trump signed Executive Order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order issued “temporary suspensions of entry” for all refugees, regardless of nationality, and foreign nationals from seven Muslim-majority countries. In addition to an indefinite ban of Syrian refugees, the order required federal agencies to “implement uniform screening standards for all immigration programs,” that would include “a database of identity documents” and “a mechanism to assess … intent to commit criminal or terrorist acts after entering the United States.”

On March 6, 2017, President Trump signed Executive Order 13780, which rescinded the initial ban and re-imposed temporary travel restrictions on six of the original seven prohibited countries. While the order removed the indefinite ban on Syrian refugees, a 120-day suspension of the U.S. Refugee Admissions Program remained. Furthermore, the order commissioned the Departments of Justice (DOJ) and Homeland Security (DHS) to prepare semiannual reports on radicalization and terrorism-related activity in the United States. Following successive lower court rulings blocking implementation of the imposed travel restrictions, the U.S. Supreme Court partially lifted the injunctions on June 26, 2017, and the ban went into narrow effect. On September 24, 2017, the President issued Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” which indefinitely suspended nearly all travel from seven countries, including six Muslim-majority countries and North Korea, recommended increased scrutiny for travel from Iraq, and imposed limited restrictions on government officials from Venezuela. While the Supreme Court had granted certiorari on a case regarding Muslim Ban 2.0 in its June 26 ruling, the Court canceled the upcoming hearing, scheduled for October 10, following the proclamation’s release. On December 4, 2017, the Supreme Court allowed Muslim Ban 3.0 to go into effect. In January, the president eased a virtual ban on refugees from 11 countries imposed last October, but not without additional security enhancements. The administration removed restrictions on Chad in April 2018.

Despite numerous legal challenges—which are outlined in the following pages—the Trump Administration maintains a de facto Muslim and Refugee Ban. The Supreme Court heard oral arguments in the case Trump v. Hawai’i on April 25, 2018. Independent of the Court’s decision on Muslim Ban 3.0, which we can expect in June 2018, this administration will continue to advance the invasive, discriminatory policies delineated throughout the president’s campaign. Should the Supreme Court rightfully declare this version of the ban unconstitutional, advocates must nevertheless persist in defiance of bigotry, as the Trump Administration resorts to extreme vetting in pursuit of its xenophobic, anti-Muslim agenda.

Timeline of Executive Orders, litigation, and additional developments relating to the Muslim and Refugee Ban

January 27, 2017: President Trump signs Executive Order 13769,14 banning foreign nationals from seven Muslim-majority countries for 90 days, 15 prohibiting refugee admissions for 120 days, and suspending Syrian refugee admissions indefinitely. The order also requires federal agencies to develop uniform screening standards for all immigration programs, including an identity database with analytic mechanisms to detect “radicalization” of immigrants after entering the United States. Furthermore, the order directs the State Department to prioritize refugee admissions of religious minorities. These provisions reflect the president’s campaign rhetoric.

January 28 – February 21, 2017: The president’s executive order sparks global outcry and confusion at U.S. ports of entry. Between Jan. 27 and Feb. 4, Customs and Border Protection (CBP) stops 1,903 travelers, 1,457 of them U.S. persons, for additional screening. Of the remaining 446 travelers, at least 134 withdraw their entry request, resulting in immediate deportation.

  • On Jan. 28, the U.S. District Court for the Eastern District of New York grants a nationwide temporary injunction blocking the deportation of travelers stranded at U.S. ports of entry as a result of the executive order.
  • On Feb. 3, the U.S. District Court for the Western District of Washington issues a temporary restraining order (TRO) blocking the ban’s entry restrictions nationwide.19 The Trump Administration requests a stay pending appeal of the district court’s TRO.
  • On Feb. 9, the U.S. Court of Appeals for the Ninth Circuit rejects the administration’s bid and upholds the TRO.
  • On Feb. 21, Senior White House Policy Adviser Stephen Miller informs Fox News the administration’s forthcoming revision to the Jan. 27 order will “have the same basic policy outcome.”

March 6, 2017: President Trump rescinds the Jan. 27 order and signs Executive Order 13780, re-imposing temporary travel restrictions on the list of banned countries, excluding Iraq. While the order removes the indefinite ban on Syrian refugees and eliminates preference for religious minorities, it reinstates a 120-day suspension of the U.S. Refugee Admissions Program and limits refugee admissions in fiscal year 2017 from 110,000 to 50,000 persons. Preempting confusion at U.S. ports of entry, the order delays implementation of the restrictions for 10 days and grants explicit exemptions to lawful permanent residents, existing visa holders, and refugees already scheduled for travel.

March 15 – June 12, 2017: Following the issuance of EO 13780, leading civil rights and advocacy organizations reaffirm opposition to the administration’s discriminatory anti-Muslim agenda. Despite clarifications regarding lawful permanent resident and visa holder exemptions, AAI President James Zogby states the revised order is no less a Muslim ban.

  • On Mar. 15, the U.S. District Court for the District of Hawai’i issues a TRO, blocking nationwide implementation of the revised order just one day before it is scheduled to take effect.25 That same day, the U.S. District Court for the District of Maryland issues an injunction barring enforcement of section 2(c) of the revised order (the provision authorizing the travel suspensions), stating “the primary purpose [of the second executive order] remains the effectuation of the proposed Muslim Ban.”

President Trump decries the Hawai’i ruling at a rally in Nashville, TN, on Mar. 15, stating: “The order [Judge Derrick Watson] blocked was a watered-down version of the first order that … should never have been blocked to start with.”27 The following day, White House Press Secretary Sean Spicer confirms the administration will soon appeal the district court rulings.

  • On May 25, the U.S. Court of Appeals for the Fourth Circuit upholds the Maryland District Court’s injunction, stating the revised order “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination.” On Jun. 1, the Trump Administration requests the Supreme Court’s review of the lower courts’ rulings.
  • On Jun. 12, the U.S. Court of Appeals for the Ninth Circuit rules unanimously against the revised order, blocking the travel restrictions and suspension of the refugee program. Unlike the Fourth Circuit, which cited the First Amendment’s Establishment Clause, the Ninth Circuit rejects the order on statutory grounds, stating: “National security is not a “talismanic incantation” that, once invoked, can support any and all exercise of executive power.”

June 26, 2017: The U.S. Supreme Court grants the Trump Administration’s petitions for certiorari and applications to stay the lower courts’ injunctions, setting oral arguments for October 2017. In lifting the injunctions barring enforcement of the revised order’s travel restrictions, refugee suspensions, and refugee cap, the Supreme Court rules the provisions may not be enforced against those with a “bona fide relationship with a person or entity in the United States.”

June 29 – September 12, 2017: The Trump Administration begins enforcing the non-enjoined portions of the revised order. Pursuant to State Department guidance, the term “bona fide relationship” does not extend to certain close family relations, including grandparents, grandchildren, cousins, and siblings-in-law.

  • On Jul. 13, the U.S. District Court for the District of Hawai’i enjoins the Trump Administration from excluding an expanded list of close family relations and refugees with formal assurances from resettlement agencies in the United States. The administration challenges the decision.
  • On Jul. 19, the U.S. Supreme Court affirms the district court’s interpretation of a “close familial relationship,” but stays the injunction relating to refugee assurances pending resolution of the U.S. Court of Appeals for the Ninth Circuit.
  • On Sept. 7, the U.S. Court of Appeals for the Ninth Circuit stays the district court’s preliminary injunctions, enjoining the Trump Administration from excluding the expanded list of close family relations and refugees with formal assurances.
  • On Sept. 12, the U.S. Supreme Court stays the Ninth Circuit’s order regarding refugee assurances in advance of the upcoming October hearing.

September 24, 2017: President Trump signs Presidential Proclamation 9645, indefinitely suspending nearly all travel from seven countries, including six Muslim-majority countries and North Korea, recommending increased scrutiny for travel from Iraq, and imposing limited restrictions on government officials from Venezuela. The suspensions and restrictions are scheduled to take effect Oct. 18. Furthermore, section 4 of the proclamation authorizes “adjustments to and removal of suspensions and limitations” subject to periodic interagency review. Three days after issuing the proclamation, the Trump Administration announces the United States will admit no more than 45,000 refugees in Fiscal Year 2018, representing the lowest annual cap since the 1975 inception of the U.S. Refugee Admissions Program.

September 25 – November 13, 2017: Following the proclamation’s release, the U.S. Supreme Court cancels the upcoming October hearings, requesting that parties submit briefs addressing “whether, or to what extent,” the recent proclamation resolves the Fourth and Ninth circuit cases.

  • On Oct. 17, the U.S. District Court for the District of Hawai’i issues a TRO barring enforcement of travel restrictions on Iran, Libya, Syria, Yemen, Somalia, and Chad, again, just one day before the proclamation is scheduled to take effect. That same day, the U.S. District Court for the District of Maryland grants a preliminary injunction prohibiting enforcement of the restrictions, likewise excluding provisions relating to North Korea and Venezuela.The administration challenges the decisions.
  • On Oct. 24, President Trump issues Executive Order 13815, entitled “Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities.” The order concludes the 120-day suspension pursuant to EO 13780, but applies “special measures to certain categories of refugees whose entry pose potential threats to the security and welfare of the United States.” Reports suggest the categories include refugees from nine Muslim-majority countries, South Sudan, and North Korea. In Fiscal Year 2017, more than 40 percent of refugees admitted to the United States came from one of these 11 countries.
  • On Nov. 13, the U.S. Court of Appeals for the Ninth Circuit grants the administration’s motion for an emergency stay of the Hawai’i District Court’s preliminary injunction, exempting those with close ties to the United States as defined in prior rulings.

December 4, 2017 – April 10, 2018: On Dec. 4, the U.S. Supreme Court stays the district courts’ preliminary injunctions pending decisions from the Fourth and Ninth circuits, allowing the enjoined portions of Proclamation 9645 to go into effect.

  • On Dec. 22, in light of the Supreme Court’s order, the U.S. Court of Appeals for the Ninth Circuit rules that Proclamation 9645 likely violates the Immigration and Nationality Act (INA).
  • On Dec. 23, the U.S. District Court for the Western District of Washington partially blocks refugee restrictions pursuant to EO 13815.
  • On Jan. 5, 2018, the Trump Administration petitions for a writ of certiorari regarding the Ninth Circuit’s decision. The Supreme Court grants certiorari on Jan. 19, directing the parties to prepare briefs addressing the constitutional questions at issue in the Fourth Circuit case as well.
  • On Jan. 29, 2018, the Trump Administration concludes its 90-day review, resuming refugee admissions from the 11 “high-risk countries” identified above, but not without “additional security enhancements.” Oral arguments are scheduled for April 25.
  • On Feb. 15, in light of the Supreme Court’s Dec. 4 order and Ninth Circuit’s Dec. 22 decision, the U.S. Court of Appeals for the Fourth Circuit affirms the injunction, issuing separate opinions totaling 285 pages.
  • On Apr. 10, President Trump signs Presidential Proclamation 9723, entitled “Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” removing travel restrictions previously imposed on the African nation of Chad.

April 25, 2018: The U.S. Supreme Court hears oral arguments in the case Trump v. Hawai’i. We can expect a decision in June. Additional developments in 2018: Pursuant to section 4 of EO 13780, DOJ and DHS publish an interagency report on radicalization and terrorism-related activity in the United States. The report is patently flawed, relying on incomplete data and supporting baseless, discriminatory conclusions. On Feb. 5, journalists release a leaked CBP draft report promoting continuous evaluation of Sunni Muslims in the United States On Feb. 6, the president establishes the National Vetting Center.

The Problem

The Trump Administration’s Muslim and Refugee Ban remains in effect. Since December 2017, the U.S. government has restricted nearly all travel from five Muslim-majority countries, including Iran, Libya, Somalia, Syria, and Yemen. With the issuance of Presidential Proclamation 9723 in April, the president removed Chad from the list of banned countries. Of the remaining five nations affected, which comprise nearly 150 million people altogether, Syria and Yemen are home to what the United Nations has declared the world’s worst humanitarian crises.

Since October 2017, when the president signed Executive Order 13815 resuming the U.S. Refugee Admissions Program, the United States has admitted just 44 Syrian refugees. The total admitted so far in 2018, which stands at 11, marks a 99 percent decrease over the same period in 2016.60 While the president targeted Syrian refugees throughout his campaign and successive executive orders, the refugee ban extends beyond Syria. In the first half of Fiscal Year 2018, the United States admitted just 10,548 refugees. At this rate, refugee admissions will not approach the administration’s cap of 45,000, already the lowest in the U.S. Refugee Admissions Program’s 43-year history.

Independent of the Court’s decision in Trump v. Hawai’i, this administration will continue its targeting of Muslims and refugees. The significant reduction of refugee admissions and imposition of “additional security enhancements” for refugees from nine Muslim-majority countries demonstrate this intent, as do recent developments with respect to “extreme vetting.” Pursuant to section 4 of the original ban, Executive Order 13769, the administration is moving to centralize, enhance, and deregulate the nation’s intelligence sharing infrastructure, while developing analytic mechanisms to detect “radicalization” of immigrants after entering the United States. Indeed, the administration has expressed interest in multiple initiatives, including automated mass surveillance and continuous evaluation of Sunni Muslims in the United States. Extreme vetting, in this respect, amounts to a “backdoor Muslim Ban,” targeting not only foreign nationals, but American citizens and lawful permanent residents as well.

Key Recommendations

  1. At the national level, advocates must:
  • Demand sufficient congressional oversight, and heightened public attention, regarding the administration’s vetting proposals, including the Visa Lifecycle Vetting Initiative, the National Vetting Center, and other programs and materials pursuant to Executive Orders 13769 and 13780, and Presidential Proclamation 9645;
  • Work with members of Congress to pass legislation rescinding the Muslim and Refugee Ban, and denounce the Trump Administration’s xenophobic interpretation of federal immigration law.

Download the Muslim and Refugee Ban Issue Brief (2018) Here