Trump’s Visa Ban Is Sneakier Than We May Realize

It has been a little over a week since the Trump administration implemented its travel ban. The ban, signed just before close of business on Friday, January 27, 2016, placed a 90-day hold on citizens from seven Muslim countries; it also placed an indefinite ban on refugees. The text of the order, which is titled “Protecting the Nation From Foreign Terrorist Entry,” has been duly dissected in courtrooms in the days and weeks that have followed. Many judges, including those in Massachusetts, New York, Virginia, Los Angeles, Seattle, and Boston, have issued injunctions on some or all of these provisions. In a few cases, individuals wrongfully deported per the stipulations of the order have been permitted to return to the United States.

As a Muslim, an immigrant, and a lawyer, I have been heartened by the droves of protestors and lawyers who have taken to U.S. airports since the order was issued. In many ways, the scenes from airports all across America, swollen with protestors carrying placards proclaiming their solidarity, have tempered the malevolence delivered by the order. For the people detained, or told that they are suddenly illegal and inadmissible, these visible acts of protest have meant everything. In an odd sort of way, the ban seems to have highlighted what immigration lawyers have known for a long time: the precarious and fragile legal status of those whom the United States permits into the country on visas.

Inflicted as they are at United States embassies and consulates all around the world, the indignities to which visa applicants (and if they’re lucky visa holders) are subjected are largely invisible to Americans. They never see the crowds of hopeful students and businessmen, scientists and spouses, who line up outside visa windows carting thick files spilling over with health records, bank records, wedding pictures, and just about anything else. Everything and anything can be subject to scrutiny and search; anything and everything can be the basis of rejection, the loss of a job or a scholarship or a relationship. Sometimes a reason is given as to why someone is rejected and sometimes none are forthcoming. There are consular officers who are kind and courteous and many more who are condescending and dismissive. In the days since 9/11 the scrutiny and security has made this already demeaning process far worse, far more judgmental, and far more informed by the stereotype that all Muslims are terrorists unless proven otherwise. Few have been granted visas.

Beneath all this lies a discriminatory rights regime posited upon the determination that constitutional rights (and the principles behind them) apply only to American citizens. The Doctrine of Consular Un-reviewability holds that determinations made by the consular reviewing the case at the embassy cannot be appealed. This means that visa applicants, even when they may be married to U.S. citizens, have no avenue as to where they may take their case. They have the ability to reapply, but given the backlog and volume of applications received by United States Consulates, the fact that they have been rejected before counts against them. For those who are lucky and able to procure a visa, their trials do not end there. Even prior to the travel ban, a visa was no guarantee to actual entry; the U.S. immigration officers stationed at the port of entry can at any time revoke the visa, send the people who have traveled thousands of miles, spend thousands of dollars, back home. A convicted serial killer who is an American citizen possesses more rights, to appeal, to counsel, against indefinite detention, than they do. They are not criminals but they are treated as just that, and there is little they can do to demand better.

This disparity in rights requires urgent consideration by Americans who have risen up to protest the travel ban. There are several reasons for this: First, the numbers of those detained will soon plummet as Customs and Border Patrol agents at various foreign ports prevent visa holders and legal permanent residents from the seven countries to board aircrafts bound for the United States. Since those in possession only of visas are not deemed to have any rights to appeal, they will become invisible casualties. This is already happening; at a Friday morning hearing on February 3, 2017, a U.S. government lawyer stated on record that around 100,000 visas have already been revoked.

In defending the ban, various Trump administration officials (and their supporters) continue to emphasize the fact that the ban applies only for 90 days. This is a deceptive claim that suggests that at the end of the period things may return to where they were. This is extremely unlikely. The 90-day period is likely the time required to instruct consular officials at the seven affected countries (and possibly more) to stop issuing visas at all. Because that decision cannot be appealed in a U.S. court and because no numbers are available as to how many have tried to apply for visas from these countries, the casualties of the ban will be rendered invisible. This fact is an important one, because it underscores how the 90-day period is quite likely just the time the Trump administration deems is needed to stop the issuance of new visas. Guidance issued to U.S. consulates comes under agency directives and does not require congressional approval either. With no new visas issued and all old visas revoked, the seal on travelers from these countries will be complete. Even if there are protests outside U.S embassies abroad, the Trump administration is unlikely to be bothered by them.

As the airport protests following the travel ban reveal, there are many Americans who are disturbed, shocked and saddened by the travel ban. The protests along with the droves of attorneys volunteering to help the detained and denied have all focused on airports as points of assistance and activism. In a few days, however, as U.S. consulates and Custom and Border Patrol agents at foreign ports step up their activities, the stream of those actually able to get on a plane will slow and probably stop completely. With no one detained and no one arriving, the Trump administration likely hopes, activism too will come to a standstill. Those excluded will remain excluded, become resigned. Those Americans who have been standing up for them, having little information about the ongoing effects of the ban, will likely move to Trump’s other, newer, and constantly accumulating transgressions

This moment, dark as it is, presents an opportunity for Americans to reckon with the ethics and principles embodied in its immigration rules. Must visa holders, particularly those on long-term immigrant visas, such as spouse, foreign worker, fiancé, and student statuses, be relegated to fewer rights than convicted criminals who have the random luck of being born American? Similarly, attention must be paid to how activism around the travel ban be reshaped such that continued attention can be focused on the travel ban. Some of this can be accomplished by creating better networks of reporting and documentation with journalists in the banned Muslim countries and in Europe and the Gulf states where many take connecting flights. U.S.-based civil-rights organizations should also consider establishing reporting mechanisms via which visa applicants and green-card holders detained or barred from boarding aircraft can submit reports directly. Their voices must be amplified to maintain the momentum of opposition to the travel ban.

Until now, the plight of the U.S. visa holder, who may be a student with a scholarship, a trainee doctor with a fellowship, or just someone (e.g., First Lady Melania Trump) engaged to a U.S. citizen, has remained largely out of the public conversation in the United States. This travel ban, its discriminatory and xenophobic provisions, should be the basis of a deeper conversation about whether U.S. standards and actions abroad exemplify the principles that Americans take for granted at home. Those committed to principles of fairness and equality, the right to be informed when one will be subject to a changed law or an amended regulation, must demand they be upheld not just based on the accident of birth, the possession of citizenship, but based on a universal humanity and dignity. Those left out without explanation, believed to be culpable and excludable based on the application of collective blame, will soon stop arriving. One hopes that the Americans who stand with them will not stop caring.