Week 18: Six countries added to the travel ban

Immigration news, in context.

This is the eighteenth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we discuss the expansion of the administration’s travel ban.

  • In Under the Radar, we look at ICE’s recent practice of fingerprinting unaccompanied minors over 14 years old.

  • In Next Destination, we examine ICE’s purchase of commercially available cell phone tracking data for enforcement purposes as both an indication and portent of the agency’s reliance on big data surveillance.

The Big Picture

The news: President Trump last Friday issued a presidential proclamation adding travel restrictions to the nationals of six countries, expanding his so-called travel ban.

What’s happening?

Proclamation 9983 blocks all immigrant visas for four countries: Myanmar (also called Burma), Eritrea, Kyrgyzstan, and Nigeria. It has an exception for people who have provided assistance to the U.S. government abroad, but all other intending permanent residents, whether through family, employment, or the diversity visa, who haven’t already received a visa won’t be able to travel to the United States to settle. For two countries — Sudan, and Tanzania — the ban only affects diversity lottery visas, which are a small proportion of immigrant visas issued overall. Asylum seekers and refugees are unaffected.

The new proclamation is essentially an update to its predecessor, Proclamation 9645, which is often referred to as the third travel ban. That proclamation was technically a modified implementation of a second version of the ban — Executive Order 13780 — which was facing long odds of surviving a challenge that had reached the Supreme Court. And that executive order was revised form of the original travel ban, Executive Order 13769, which failed to survive judicial review. We’ll go into these previous iterations more in the next section.

The presidential authority to enact these bans is derived from section 212(f) of the Immigration and Nationality Act [8 U.S.C. 1182(f)]. We covered the legal background and history of 212(f) extensively in our edition on the president’s earlier health insurance proclamation, and encourage you to read it. In broad strokes, it gives the president enormous authority to restrict entry to any “aliens or class of aliens'' if he deems their admission would be “detrimental to the interests of the United States.” This argument works best on national security grounds, and indeed that is the crux for the travel restrictions, including this latest one.

The proclamation claims that the government’s methodology has improved since the September 2017 assessment that resulted in the third travel ban, leading to “even more granularity and increased accuracy regarding each country’s performance under the criteria.” It cites examples including the added metric of not only whether a country shares intelligence, but how often it does and how useful it is, and statistical data on how often a particular country’s nationals “commit offenses” in the U.S. It also states that the evaluations relied much more on data provided by U.S. Embassies abroad, and on data supplied by foreign governments themselves after being warned of the updated criteria. (Part of the risk assessment was apparently conducted via algorithm, which is concerning for a host of reasons we don’t have time to get into here.)

A final list was drawn up after diplomatic engagement led to some of these “worst-performing countries” to make rapid modifications to their identity-management and intelligence-reporting systems, tailored to U.S. demands, and a deliberation of foreign policy goals (Iraq, for example, was left off due to U.S. military presence in the country and the government’s continued security cooperation with the U.S., despite having failed to meet the criteria. Such was also the case for “another similarly situated country,” which could only really be Afghanistan). The restrictions from the previous ban, as well as the waiver and enforcement procedures, are maintained.

The proclamation then promptly blows up its own national security argument by imposing restrictions exclusively on immigrant visas.

Its predecessor had restricted both immigrant and nonimmigrant travel from most of the countries it targeted. All nationals from Syria and North Korea were banned from entry; for Chad, Libya, and Yemen, it was immigrant visas and B1/B2 type tourism and business visas — by far the largest nonimmigrant visa category every year, with relatively lax security requirements (Chad was later removed); for Iran, it was all nationals except those holding F, M, or J type student and exchange visitor visas; and for Venezuela, B1/B2 visas were suspended only for certain government officials and their family members. Only Somalia saw immigrant visas specifically banned.

Proclamation 9983, meanwhile, exclusively blocks immigrants. The administration addresses this by writing that the president has “prioritized restricting immigrant visa travel over nonimmigrant visa travel because of the challenges of removing an individual in the United States who was admitted with an immigrant visa if, after admission to the United States, the individual is discovered to have terrorist connections, criminal ties, or misrepresented information.”

This is frankly nonsensical. First of all, it remains pretty straightforward for the government to remove permanent residents if it can prove that they had any terrorist or international criminal ties. Residency paperwork asks applicants to indicate such ties specifically so they can be stripped of status and charged with fraud if evidence emerges that a misrepresentation was made. Second, intending immigrants have a relatively slim path to residency, predicated upon existing professional or family relationships, or an unlikely random draw in the diversity lottery; in recent years, there have been around 1 million per year. There are about seven or eight times that many B1/B2 nonimmigrant entries per year, and they face much lower barriers to entry. If a particular person wanted to gain entry to the United States for terrorism purposes, a green card would be about the hardest way to do it.

How did we get here?

Trump first called for a “total and complete shutdown” of all Muslim travel to the U.S. while on the campaign trail in December 2015. “Until we are able to determine and understand this problem and the dangerous threat it poses,” Trump said in a campaign-issued statement, “our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life."

He made good on that promise early on in his term, issuing Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry into the United States,” during his first week in office.  The order was released on a Friday and went into effect immediately, causing chaos at airports across the country and overseas. The order didn’t actually list which countries were affected by the ban; that information was instead included in a DHS fact sheet. It also wasn’t immediately clear whether green card holders who hailed from the now-banned countries — Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen — would be allowed into the country. 

Federal judges across the country blocked aspects of the ban almost immediately, citing Trump’s anti-Muslim comments on the campaign trail and the ban’s shoddy implementation. (Trump’s lawyer, Rudy Giuliani, told Fox News that Trump had asked his staff to implement a Muslim ban “the right way,” which didn’t help the government’s argument that there was no racial or religious animus behind the ban.)

A second iteration of the ban, Executive Order 13780, was issued in March 2017. The new version put forth a more specific process for travel ban determinations, allowing the DHS secretary to determine “what additional information will be needed from each foreign country to adjudicate an application by a national of that country ….. to determine that the individual is not a security or public-safety threat.” That information was supposed to be given to the president and other Cabinet officials for review. From there, the Secretary of State to communicate with the nations described in the report and ask them to come into compliance with whatever standards DHS came up with. Ultimately, the Secretaries would issue a final recommendation for restricted entry based on these assessments as well as other foreign policy considerations.

The first such report under this process led to Proclamation 9645 in September 2017 (often referred to as the third travel ban), which restricted travel from nationals of eight countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. (Chad was removed in April 2018.) This proclamation ostensibly evaluated countries on three broad criteria: identity-management information, i.e how it handled issuing and tracking identity documents; national security and public safety information, i.e. sharing criminal data and information on terrorism intelligence; and a general national security and public-safety risk assessment, which looked at the country’s security situation internally and incorporated factors including whether it regularly accepted deportees.

The Supreme Court upheld this iteration of the ban, ruling that the administration had articulated a clear national security explanation and had included a policy of allowing for waivers on a case-by-case basis, which in theory would still allow people subject to the travel ban to overcome its restrictions if they could prove they were not security risks.

Instead of starting with a legally sound version of the ban, the administration began with the shoddiest draft possible and used court challenges to refine the ban until it was no longer considered outside the confines of the law. As Dara Lind wrote for Vox in June 2018, a year and a half into Trump’s term, the ban had become normalized. This has become an administration tactic: start with a shock-and-awe policy, scale it back after legal challenges, and still declare victory.

Of course, this isn’t the first time a president has invoked 212(f) to ban certain nationals of certain countries from entering the U.S. We covered the history of this in a previous edition, but here’s a brief excerpt: Every president since Ronald Reagan has issued proclamations barring entry under the statue, with Barack Obama issuing a whopping nineteen, far more than any previous president. However, most were extremely targeted exclusions. For example, one of Obama’s orders barred entry to “aliens who are determined to threaten the peace, security, or stability of Burma in specified ways” and one of Bill Clinton’s orders barred “aliens who formulate, implement, or benefit from policies that impede Liberia’s transition to democracy and their immediate family.”

The government has sought to limit people from certain backgrounds from migrating to the U.S. before, often with much broader latitude than what 212(f) allows for. The 1882 Chinese Exclusion Act, the first federal immigration legislation passed by Congress, limited Chinese migration to the U.S. on the basis of nationality alone. The Immigration Act of 1924 implemented a quota on all immigrants from the Eastern Hemisphere, effectively ending all Asian immigration to the U.S. and severely reducing immigration from Southern and Eastern Europe. Though the legal basis for such legislation is different from that of Trump’s travel bans, the goal — limiting certain people’s ability to migrate to the U.S., largely based on nationality — is practically identical, though it now needs to be framed in terms of national security to have legal muster.

What’s next?

The new additions to the travel ban will go into effect on February 21, two weeks from today. The proclamation pretty explicitly makes the threat that additional countries may be added within six months of its publication date, stating that “the January 2020 proposal recommended that, for five poorly performing countries, foreign policy interests warranted a different approach… In several of the five countries, the United States has experienced a recent deepening of diplomatic ties that generally mark increased cooperation toward achieving key regional and global United States foreign policy goals… all five countries have credibly communicated willingness to work directly with the United States Government to correct their outstanding deficiencies… For these reasons, these countries will be given an opportunity to show specific improvements in their deficiencies within the next 180 days.”

This inadvertently ties the visa restrictions directly to “regional and global United States foreign policy goals,” which is perhaps more evidence that their purpose is not purely one of enhancing domestic national security. In these cases, it appears the U.S. is using the specter of the travel ban as a cudgel to extract cooperation on other objectives. It remains unclear which countries these are.

It also sets a timeline for the next report on travel limitations, which will be due on October 1 of this year. At that time, the Secretary of Homeland Security (whoever it may be at the time) will recommend whether to remove, add, or modify any restrictions currently in effect.

No legal challenges to this particular iteration have been announced as of yet. However, while the Supreme Court already upheld the prior travel ban, litigation surrounding it is actually still not over. The Fourth Circuit Court of Appeals heard arguments just last month on lawsuits challenging the travel ban on constitutional grounds. Part of the argument in those cases is that the SCOTUS ruling was predicated in large part on the fact that those affected could seek and receive waivers, meaning it was not a total and insurmountable ban, yet in practice they are almost never granted. If a legal challenge to this proclamation comes, it will probably zero in on the fact that the restrictions only affect intending immigrants as a marker that the national security rationalization is a pretext.

There’s also the fact that the restrictions include Nigeria, a country of 200 million people and the largest economy in Africa, with a massive immigrant population already in the United States. No prior restriction had affected a country of anywhere near its size; its inclusion is an indication that the administration feels comfortable targeting such large populations.

Under the Radar

ICE begins fingerprinting unaccompanied migrant teenagers

BuzzFeed News reports that ICE has begun fingerprinting unaccompanied minors aged 14 or older who are in U.S. government custody. The agency told BuzzFeed News that the practice, which began in January, is intended to “mitigate and prevent the risk of [children’s] victimization by human traffickers and smugglers, and to reduce misidentification.”

It’s unclear why ICE has now begun fingerprinting children who are in the custody of a completely different government agency that is supposed to have no role in immigration enforcement, and immigrant advocates told BuzzFeed News that migrant children have been put under “an incredible amount of stress” by the process.

ICE claims it’s doing so because the Office of Refugee Resettlement (ORR), the agency within the Department of Health and Human Services responsible for reuniting children with their sponsors doesn’t collect sufficient information on these sponsors. That doesn’t explain why the children, not their sponsors, are having their information checked by federal immigration authorities. ORR has released children to traffickers in the past, specifically in 2014, when thousands of Central American children arrived at the border. HHS implemented more stringent security measures since then, including reinstating a fingerprinting requirement for children’s prospective sponsors, who are usually relatives already living in the U.S. ICE wasn’t involved in the process at all until relatively recently.

HHS expanded the fingerprinting policy in 2018, requiring that all adults in a sponsor’s home submit biometric information as part of the application process — and it began sharing that information with ICE. The expanded fingerprinting policy significantly increased the time it took for children in ORR custody to be reunited with their families, partly because of the complexity of the new requirements and partly because sponsors feared that sharing their information with ICE could lead to their own deportations

Under the new requirements, the time it took for children to be released increased to an average of 90 days, severely affecting the mental health of thousands of children. HHS ultimately dropped the expanded fingerprinting requirement in December 2018. In June 2019, HHS stopped requiring immigration records checks for sponsors who had already been cleared by FBI background checks.

Next Destination

DHS bought more than $1.2 million in cell phone data to track down immigrants

The Department of Homeland Security recently bought access to a massive trove of commercial cell phone data, the Wall Street Journal reports. The government’s use of the data appears to be legal because the information is collected by commercial vendors, not by the government itself. In December, an explosive New York Times report showed how seemingly innocuous apps can compile and sell user data to third parties — and how easily a person’s location, daily routine, and life can be tracked using cell phone data alone.

DHS began buying data from Venntel, a Virginia-based company linked to Gravy Analytics, a major mobile advertising company, in 2017, according to the Journal’s report. People familiar with the software told the Journal that ICE has used it to identify immigrants and Customs and Border Protection reportedly uses the data to look for cell phone activity in remote areas near the U.S.-Mexico border, which could be a sign of human activity.

The Journal’s report is the latest example of the enforcement agencies’ increasing reliance on digital surveillance to carry out arrests and raids. Immigrant advocates have targeted the software company Palantir, which created proprietary software for ICE allowing it to search through dozens of databases, for its work with federal immigration agencies. An October 2019 investigation in the New York Times Magazine showed how ICE uses several databases, including DMV records and commercial software like CLEAR and Thomson Reuters, to track down immigrants across the country.

The use of powerful but largely unregulated technologies will only grow with the availability of data from cell phones, social media, surveillance cameras, drones, and other implements, and with the increasing sophistication of pattern-recognition AI and systems to parse and interconnect this data.