April 28, 2020 HUMAN RIGHTS

Deference to Discrimination: Immigration and National Security in the Trump Era

by Faiza Patel

Donald Trump launched his campaign for president promising to build a wall on the southern border and tarring Mexicans as criminals and rapists. Soon after, he proposed banning Muslims from the United States.

President Trump has done his best to turn his anti-immigrant and anti-Muslim rhetoric into official policy. Flouting the Constitution’s guarantee of freedom of religion, and in contravention of the Immigration and Nationality Act’s (INA) prioritization of family reunification, he has issued executive orders that have imposed indefinite, sweeping immigration bans that largely target Muslims and people from Africa. Violating statutory federal information quality standards, the Departments of Justice and Homeland Security issued a misleading report characterizing Muslim immigrants as terrorism threats. And new State Department regulations have created a digital infrastructure through which to conduct ideological screening of immigrants.

In taking actions like these, the administration has exploited a potent combination of broad statutory delegations and legal doctrines affording deference to the president in matters of immigration and national security. Notably, the Supreme Court affirmed this deference in Trump v. Hawaii, a 5–4 decision upholding Trump’s Muslim Ban. Writing for the majority, Chief Justice John Roberts brushed aside historical parallels to Korematsu, where the Court deferred to executive judgment in upholding the Japanese internment, and effectively handed the administration a blank check to discriminate as long as it said the magic words: “national security.”

Muslim Ban protest at Ronald Reagan Washington National Airport.

Muslim Ban protest at Ronald Reagan Washington National Airport.

Geoff Livingston from Flickr

While rote invocations of national security to justify discriminatory measures have a long history and have often been upheld by the courts, the Trump administration has found that framing immigrants as threats to national security has permitted it to unlock a powerful legal vehicle for engineering social change—that is, to align U.S. policy with a perspective that America is a white, Christian nation.

This article outlines a few ways in which framing immigration as a national security matter has permitted policymaking on the basis of prejudice, not proof, in contravention of America’s core constitutional commitments. It begins with the Muslim Ban, which along with the border wall, is Trump’s best-known initiative, and then delves into other policy changes implemented under the pretext of security that seem aimed instead at changing the color of America.

The Muslim Ban

In December 2015, Trump called for a “total and complete shutdown of Muslims entering the United States.” A week after taking office, he banned people from seven predominantly Muslim countries, borrowing verbatim from a speech he gave on “Radical Islam” and carving out an exception intended to benefit Christians. The ban was met with opposition in the streets and the courts alike. It was enjoined by federal courts around the country as discriminatory, which mostly agreed with the Fourth Circuit that the measure “drip[ped] with religious intolerance, animus, and discrimination.”

The ban was withdrawn and replaced twice as the administration sought to strip out overtly discriminatory elements, and, in 2018, the Supreme Court in a 5–4 split held that its third iteration could remain in effect. In the Hawaii case, the Court refused to subject the ban to the type of scrutiny normally afforded to claims alleging discrimination on the basis of religion. Instead, because the Court interpreted the Muslim Ban as an immigration policy that the government justified on national security grounds, a majority decided to uphold it as long as it could be reasonably explained by anything other than religious animus. The majority accepted the government’s claim that it selected the banned countries by evaluating every country in the world against the same baseline standards (e.g., whether they issued electronic passports, shared lists of suspected terrorists, etc.) to identify deficient ones, which just happened to be predominantly Muslim—and that largely overlapped with those identified before the review. Dozens of countries that did not meet the government’s own standards were left off the list.

Like the zero-tolerance policy that operated at the U.S.–Mexico border between April and June 2018, the Muslim Ban operates as a family separation policy by preventing Americans’ spouses, children, and parents from coming to the United States. From December 2017 through September 2019, the ban has kept at least 1,313 children from their American parents, 3,382 parents from their American sons and daughters, and 3,464 spouses or fiancés from their U.S. citizen partners. This subverts the intent of the 1965 Immigration and Nationality Act (INA), a civil rights–era law with the declared goal of ending discriminatory national origin quotas that favored white Europeans and reuniting families separated on the basis of such restrictions.

Trump has taken advantage of the Supreme Court’s green light in Hawaii. Earlier this year, just after the third anniversary of the Muslim Ban, the administration banned immigrants from Kyrgyzstan, Myanmar, Eritrea, Nigeria, Sudan, and Tanzania. Five of these countries have populations that are between 30 percent and 85 percent Muslim. In aggregate, the augmented version of the ban that is now operative lists 13 countries and sweeps in half a billion people, including a quarter of the population of Africa.

This could just be the beginning: Over the longer term, an immigration system run by executive fiat in the wrong hands runs the risk of altering, without broader buy-in, long-term demographic trends in America, tearing apart large numbers of American families, and stifling the cultural and economic exchanges that have permitted this country to thrive.

Alternative Facts

According to the Washington Post, during his time in office, President Trump has made over 16,000 false or misleading statements. These are supplemented by brazen manipulation of data by the machinery of the administrative state to support the president’s favored policy outcomes.

As the Cato Institute has documented in several studies, empirical evidence shows that there is practically no threat from unvetted foreigners coming to the United States to carry out terrorist attacks. For example, the analysis Extreme Vetting of Immigrants: Estimating Terrorism Vetting Failures concludes that from 2002 to 2016, one deadly terrorist made it through for every 379 million decisions authorizing a foreigner to enter the United States.

Nonetheless, in January 2018, the Executive Order 13780 Section 11 Report issued by the Departments of Homeland Security (DHS) and Justice tarred immigrants as public safety threats. The report was accompanied by a press release claiming that “three out of four individuals convicted of international terrorism and terrorism-related offenses were foreign born,” a conclusion that the president mischaracterized as encompassing all terrorism offenses, not just international ones, to his tens of millions of Twitter followers. The report reached this conclusion by simply ignoring all cases of domestic terrorism, such as far-right violence, that various studies have estimated to have cost roughly the same number of lives as “Islamist” or “Jihadist” attacks since the September 11, 2001, attacks.

Perhaps most jarring, though, is the report’s disparate treatment of U.S.-born and foreign-born Americans. The Fourteenth Amendment to the Constitution, as well as national security and immigration law, do not distinguish between Americans in this way (except in extremely limited contexts, such as qualification for president and denaturalization). But the report goes out of its way to divide the subjects of the study into those who are “U.S. citizens by birth” (147 individuals) and those who were “foreign-born, naturalized, and received U.S. citizenship.” By doing so, it implies that a predilection for terrorism is tied to one’s bloodline and echoes the president’s frequent suggestions that immigrants are not “real” Americans.

In fact, the report was so misleading that the government even admitted, in response to administrative petitions filed by the Brennan Center and other organizations, that parts of it required more context and could appear biased. It nonetheless refused to withdraw it.

Extreme Vetting

The administration’s anti-immigrant agenda is often framed as cracking down on people trying to come to the country illegally. But through the Muslim Ban and extreme vetting visa policies, Trump has also made it more difficult for people to come here legally.

As a candidate for president, Trump asserted that the U.S. visa screening process was not enough to protect the country from “Radical Islamic Terrorism”—we needed “extreme vetting.” In fact, since the post-9/11 rehaul of our immigration system, the process for issuing visas to travel to the United States has focused on national security. Experts routinely rate the U.S. visa system as one of the toughest in the world. People seeking to come into the United States have to provide extensive biographic and biometric information, pass screenings against national and international terrorist databases, and pass in-person vetting with highly trained consular officers. Most importantly, anyone seeking to come to the United States bears the burden of establishing that they meet the criteria for admission. If a consular officer has any doubt about a visa applicant, they can ask for additional documentation or simply reject the application.

Ignoring the robust system already in place, in 2017 the president’s long-promised extreme vetting began taking shape. That summer, officials from Immigration and Customs Enforcement (ICE) reached out to contractors in the tech industry to solicit proposals for automated tools that could mine internet platforms like Twitter and Facebook to automatically determine whether a person is likely to commit a terrorist attack. Through its Extreme Vetting Initiative, ICE sought tools that could make “determinations via automation” about whether someone applying for a visa to the United States would become a “positively contributing member of society” and “contribute to the national interests.”

These subjective criteria for vetting, which were drawn from the first Muslim Ban executive order, immediately raised concerns that the program would be used to target disfavored people. These concerns would only be exacerbated, as the Congressional Black Caucus pointed out, by the use of automated tools that “would inevitably rely on imprecise and biased proxies to assess an individual’s contributions . . . and struggles . . . when analyzing expressions used by certain minority groups.” Indeed, a group of prominent technologists had already warned the agency that “no computational methods can provide reliable or objective assessments of the traits that ICE seeks to measure.” While ICE publicly confirmed in May 2018 that the agency is dropping the machine learning aspect of the program, the program’s fundamentals remain in place. The agency has made clear its intent to continue monitoring the social media accounts and other online activities of 10,000 targeted visa applicants and visa holders every year.

But even with human employees doing the vetting, social media analysis enables ideological vetting of visa applicants and current visa holders in the United States. This is by design: Ideological vetting is a stated goal of the Trump administration, and social media is their tool of choice. As a candidate, Trump vouched to bring back Cold War–style “ideological screening tests.” At a Phoenix, Arizona, rally, he told the crowd that “extreme vetting” would make sure the United States accepts only “the right people,” using “ideological certification to make sure that those we are admitting to our country share our values and love our people.” Given the president’s attacks on Muslims, there is little doubt as to who the president believes is unfit to enter the country.

In March 2018, the administration announced a new far-reaching element of extreme vetting: It would require nearly all visa applicants to provide their social media handles, thereby facilitating mass screening of political and religious views. The program, which went into effect in May 2019, requires that all individuals who apply for U.S. visas disclose all of their social media handles and usernames dating back to the previous five years across 20 major platforms—including Facebook, Instagram, and Twitter. This means that each year, some 15 million people have to provide information that allows the government to track their political and religious views. And in September 2019, DHS expanded the program even further. It announced that it would collect social media identifiers from additional categories of people, including applicants for immigration benefits (such as naturalization and asylum) and visitors from 38 largely European visa waiver countries. Once operational, this program will impact 33 million people each year. In just five years, the U.S. government will have a registry of the social media handles of hundreds of millions of people around the world, which it can use to build a surveillance infrastructure aimed at the global social media landscape.

In December 2019, the Brennan Center, partnering with the Knight First Amendment Institute at Columbia University and the law firm of Simpson Thatcher & Bartlett, brought suit against the State Department and DHS challenging the collection and retention of social media identifiers. The plaintiffs are two associations of documentary filmmakers whose members and partners use social media to showcase their work, draw attention to human rights abuses, connect with others in their field of work, and engage with the same social and political issues their films explore.

The requirement chills free speech and freedom of association because people reasonably fear that they will be misinterpreted, held accountable for others’ posts, or be retaliated against, especially for posts critical of authority. For example, disclosing social media handles forces visa applicants to relinquish their online anonymity, which is a cornerstone of free speech. This is especially troubling for people like our plaintiffs, who often rely on social media platforms to express opinions that may be unpopular without fear of reprisal from their own governments (who may gain access to social media information collected by the State Department and DHS in some circumstances). It also affects Americans. The purpose of social media is to connect people to each other, so examining an applicant’s posts means also looking at the posts and activity of their friends and family, including Americans. And the chilling effect prevents Americans from engaging with a diverse range of creators and thinkers from around the world.

DHS’s retention of the collected social media handles and associated information, in some cases up to 100 years after a person’s birth, exacerbates these concerns, given the potential for surveillance into the future. This is especially true when there is little transparency about how and for what purposes this will be used after it is stored, though at the very least—as mentioned above—ICE has said it will conduct continuous screening of some visa applicants and holders.

People seeking to come to the United States, such as members of the filmmaker organizations we represent, are already feeling the effects of these requirements: Out of fear of visa denials or delays, hacking, and information sharing with foreign governments, they have deleted past posts, disassociated with online groups, and have stopped commenting or posting on political and social issues altogether. Others are no longer applying for U.S. visas because they do not want to disclose their social media identifiers—forgoing personal, educational, and professional opportunities in the process.

They have reason to be concerned. Just last summer, Ismail Ajjawi, a Palestinian student who was set to begin his first year at Harvard, was denied entry at Boston’s Logan Airport. A Customs and Border Protection (CBP) officer examined his phone and, according to Ajjawi, denied him entry because “she found people posting political points of view that oppose the U.S. on my friend list.” Ajjawi was sent back to Lebanon and barred from reapplying for a U.S. visa. He was only allowed to return to the United States after intense media scrutiny and pressure from Harvard. Most visa applicants though, will not know whether social media posts—their own or those of people with whom they interact with online—result in denial of permission to travel to the United States. The system operates behind closed doors, allowing political, ideological, and religious vetting to take place unchecked.

These infringements on freedom of expression and association bring no dividends because social media has proven an unreliable basis for making judgments about national security risk. DHS’s own tests show that social media content cannot be used to fairly assess who constitutes a threat to our national security. In February 2017, the department’s Inspector General John Roth reported that pilot programs run by various components of DHS had failed to establish screenings as an effective tool. Internal assessments from the officers charged with running social media screening pilots found that “the information in the accounts did not yield clear, articulable links to national security concerns.” False negatives were also a problem, with one program evaluation concluding that social media did not yield tangible links to security concerns, even for people who were flagged as potential threats through other types of screenings.

The people most affected by these policies will continue to be the immigrant communities who have long bore the brunt of counterterrorism measures, through the administrations of Presidents George W. Bush and Barack H. Obama. In the wake of 9/11, the Federal Bureau of Investigation (FBI) targeted Muslim men for detention, questioning, and registration. The surveillance of Muslim communities by the FBI and the New York City Police Department, based not on particularized suspicion but on the assumption that Muslims are particularly likely to be terrorists, continued under both Bush and Obama. In 2011, President Obama imposed new security checks on Iraqi refugees that slowed down their admission into the country for a six-month period.

But Trump’s Muslim Ban and extreme vetting policies are a clear escalation from these earlier iterations and are accompanied by explicitly anti-Muslim and anti-immigrant rhetoric from the president and his senior advisors. As these policies pile up—largely fueled by purposefully fabricated hysteria—our character as a nation of immigrants once again comes into question.

Freedom of religion and equality are the building blocks of our democracy. While the American immigration system often does not live up to the nation’s highest ideals, it has trended toward more openness and equality over time. In 1965, standing beneath the Statue of Liberty as he signed the INA, President Lyndon B. Johnson reminded us how inherently un-American it was for a system to keep families separated because a father, mother, or child was born in the “wrong place.” As President Trump tries to swing the pendulum back, the nation’s hard-won progress is ours to lose. 

Faiza Patel serves as co-director of the Brennan Center's Liberty & National Security Program at NYU School of Law.

The author gratefully acknowledges the assistance of Harsha Panduranga of the Brennan Center for his assistance in researching and editing this article.