By Megan Lutes
Please note, this is an opinion piece, not legal advice. Should you need legal advice, specific information regarding your immigration status, or have specific questions, you should seek immigration counsel. This is also not meant to be a comprehensive analysis of the law or congressional action, these are my personal opinions and summaries.
I am an attorney, I am a woman, I am adopted from South Korea, I have a gay man and Muslim woman as roommates, various friends and family members have health issues, and I didn’t spare any of these much thought until recently. I was not historically inclined to be involved in politics. I was quiet during debates and preferred not to rock the boat, and was an advocate of keeping politics out of dinner conversation. But this election, these policies, these executive orders, these actions taken by the current administration have shaken me abruptly awake. And anyone who knows me, knows what kind of morning person I am. In the past several months, I have been shocked by the things some people close to me think, witnessed the blatant cognitive dissonance play out in thought processes to justify support for policies or politicians, been dismayed at the undercurrent of racism, sexism, xenophobia, islamophobia, and homophobia that has risen to the surface, felt like pulling my hair with the circular reasoning in debates, blanched at the hypocrisy, winced at the seeming inability of many to have respectful and intelligent political debate, shook my head at the excuses and the willful ignorance that seems to be everywhere. And I have been overwhelmed, heartbroken, frustrated, afraid, and saddened by our country, by friends, by family, human beings, and society in general. But here’s the conclusion to which I have come around. Nothing is new. All of this hatred already existed, these thoughts didn’t just materialize, this administration didn’t create it, only popularized it and made it socially acceptable to voice it.
I was peacefully comfortable, living in my liberal Seattle bubble, feeling complacent, feeling safe. I recognize this complacency came from a place of privilege. I felt my rights, as a woman, as a minority, were unquestionable. I was sheltered, with an education, a good job, health insurance, money, a home, a husband, citizenship, white parents, I was secure and forgot that many are not. How quickly we forget history – there are still people alive who lived through the times of Hitler, who survived American Japanese internment camps, who were around when women got the right to vote.
Fear mongering. Controlling the media. Alternative facts. Mass sweeping decisions, not based in fact, serving only to demonized marginalized groups - touting religion to justify persecution, building a wall, and turning away refugees and legal immigrants based on their religions, labelling any resisters as unpatriotic and “snowflakes”, pepper spraying and arresting Americans for peaceful protests… history repeats itself time and time again. However, in addition to being dismayed, I’ve also felt hopeful, humbled, honored, and courageous. I’ve seen good people standing up for what they think is right, complacent people wake up, I’ve participated in the largest peaceful protest in the history of the United States marching in solidarity with determined individuals across the world, I’ve watched strangers rush to the aid of others at an airport, sitting in and doing pro bono legal work at all hours of the night, I’ve watched inspiring speeches and seen the generosity of others moved by what is happening. I’ve developed a new level of respect for some people close to me, seeing them rise to the challenges we are currently facing. So in the face of current events, I have hope. We are called to be conscientious, be aware, and look with a critical eye at the policies as they come out. I have many opinions on many policies, but for sake of brevity, I will start with one.
Immigration was one of the cornerstones of the Trump campaign platform, making appearances in sweeping statements about Mexico, terrorists, crime, and general commentary about the poor state of our immigration policies. Many of these statements ranged from mischaracterized facts to flat out inaccuracies, using buzz words to create fear. As a next step, after the rhetoric there was a move to capitalize on the fear to gain momentum, gather/build support, and using mischaracterized facts and inaccuracies, the administration proceeded to propose policy. While this article is about immigration policies, this framework can be applied to multiple issues, populations, and policies both throughout history as well as under the current administration. The tactics, policies, and analysis being used with regard to “foreigners” in this article can be substituted in many contexts for members of the LGBTQ community, women, Muslim-Americans, African-Americans, Jews, Asian-Americans. Political affiliations aside, it is important as an informed voter, an informed citizen, and a conscientious human to take a step back from all large issues and come up with a well-rounded viewpoint. To do so one must review facts, check sources, understand the legal framework, review a timeline of events, identify precedent, and distinguish variables. Simple recipe: take a raw news story or policy, add a pinch of understanding the history of events, a healthy dose of cross checking, distill hysteria and outrage out, filter for probability and reasonableness, add a dose of reading between the lines, and you’re left a reasonable opinion.
In January 2017, Trump issued his executive order banning entry by citizens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. The order also indefinitely halted taking in refugees from Syria. The original travel ban shows the impetus behind the immigration change policies. It indiscriminately applied to anyone from primarily Muslim countries for the purposes of “fighting terrorism.” The ban was based on religion and national origin under the guise of national security, a sloppy national move that was not thought out (it even originally included individuals with valid visas or green cards) nor executed appropriately (done so apparently with no review or comment period, no warning, no instructions), causing mass chaos and protest (families were separated, children detained, peaceful protestors pepper sprayed).
When I looked into this original ban, my take was that it was illegal. In 1965, Congress limited the ability of the president to discriminate against immigrants based on national origin with the Immigration and Nationality Act. Sure enough, the ACLU and Washington State promptly filed suit against the ban and several courts issued temporary restraining orders (TRO’s). The crux of the issue is that the ban did NOT address terrorism, but instead seemed motivated by animus towards a religion/nationality. The original order itself referenced 9/11, but none of terrorists attacks on American soil were generated from the seven listed countries. Countries where terrorist attacks originated, such as Saudi Arabia, are conspicuously missing from the ban (coincidentally Trump has business ventures in Saudi Arabia). Further, arguably, this has created quite the mess in the delicate international relationships we are skirting. We are fighting in Mosul and in response to the ban, Iran called for a reciprocal ban. What does this ban do in terms of being a potential recruiting tool to ISIS by targeting Muslim countries that have nothing to do with the terrorist attacks? Not to mention the moral quandaries of turning away refugees. The use of fear mongering to justify Islamophobia, is the same fear used to justify many egregious decisions in our nation’s history.
In January and February of 2017, various federal judges temporarily blocked parts of the ban, which was affirmed by the Ninth Circuit Court of Appeals. Trump fired acting Attorney General Sally Yates after she declined to defend the travel ban. The administration eventually eased up on travel ban restrictions for green card holders and in March, President Trump issued a new travel ban, excluding Iraq from the list of countries. Again states filed suit and again federal judges issued temporary restraining orders, blocking implementation of the new executive order. The Fourth Circuit upheld these decisions.
Without delving into a heavy legal analysis, I’ll just include some of my favorite quotes from the court orders here. It feels slightly validating that Trump’s loose and often hate-filled rhetoric holds some consequences somewhere.
The Ninth Circuit order, in relevant part reads:
"The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor."
"These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and in many cases made by the Executive himself, betray the Executive Order's stated secular purpose"
"Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, 'secondary to a religious objective' of temporarily suspending the entry of Muslims."
(STATE OF HAWAI'I AND ISHMAEL ELSHIKH VS. DONALD J. TRUMP, ET AL - ORDER, Case 1:17-cv-00050-DKW-KSC Document 219 Filed 03/15/17 https://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/12/17-15589.pdf) .
The Fourth Circuit order in relevant part reads:
“The executive order in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
"These statements" (Trump's) "taken together, provide direct, specific evidence of what motivated both" [executive orders]: "President Trump's desire to exclude Muslims from the United States. The statements also reveal President Trump's intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly. And after courts enjoined EO-1, the statements show how President Trump attempted to preserve its core mission: by issuing EO-2 - a 'watered down' version with 'the same basic policy outcomes...We need not probe anyone's heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms."
"The Government's argument that EO-e's primary purpose is related to national security ... is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, and that those agencies only offered a national security rationale after EO-1 was enjoined...According to former National Security Officials, Section 2(c) serves 'no legitimate national security purpose,' given that 'not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years" and there is no evidence of any new security risks emanating from these countries."
"EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it." "When the government chooses sides on religious issues, the 'inevitable result' is 'hatred, disrespect and even contempt' towards those who fall on the wrong side of the line"
Up to this point, I am celebrating checks and balances and reveling in the legal profession upholding the constitution and holding the government to the purpose of our laws.
In June and July, however, the importance of Trump being able to appoint a Supreme Court justice became glaringly obvious. The Supreme Court temporarily reinstated parts of the ban until the case can be heard by the court this coming fall. Essentially, the Supreme Court is allowing the travel ban to go into effect, but noted that it cannot be “enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
So as it sits today, any citizen of Sudan, Syria, Iran, Libya, Somalia, or Yemen will not be admitted to the United States or issued a visa unless they meet any one of the various exceptions listed in the EO or imposed by the Supreme Court. The primary exception in the EO is that it does not apply to anyone who was inside the United States or had a valid visa as of January 29, 2017 and will not be enforced against those with a bona fide relationship with someone in the United States. A bona fide relationship with a person, must be a “close family” relationship, “… defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships. ‘Close family’ does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, fiancés, and any other ‘extended’ family members.”
This modified travel ban is scheduled to remain in place for 90 days. In addition, the U.S. Refugee Admissions Program (USRAP) is suspended for 120 days, except for those with a bona fide relationship with a U.S. person or entity. Stay tuned for further developments.
Following any of the current policies is exhausting and having a debate regarding the rationale often goes in circles because the administration seems to use real problems, conflates the issue, and then ambiguously hypothesizes about fake solutions to solve the aggrandized problems, and then implements the policies surrounding the fake solutions. President Trump is skilled at using rhetoric and stage antics to play on emotions, resulting in fear, divide, and violence. But remain steadfast my friends. Our country is resilient. Fight against fatigue and apathy. It is my opinion that staying out of politics or being sick of politics is privilege in action, because this means you do not feel that you or an immediate family member will be deported, or attacked for your race, gender, or sexual orientation. Many do not have that luxury. And if the immigration policy does not endanger you or your family imminently, a different policy will soon. We must stand together. I, too, struggle with fatigue, frustration, political correctness, trying to be nice, not wanting to rock the boat, not wanting to offend anyone close to me. But at the end of the day, well-meaning people stood aside and watched every egregious act throughout history. Which side of history will you stand on? Now is not a time for silence. Now is not a time to be concerned you'll rile anyone up. Now is not a time to get overwhelmed and retreat into our bubble of comfort or privilege. Speak up. Be strong. Don't stop. Educate yourself. Run for government positions. Petition your representatives. Stay informed. Continue the dialogue. Act. Resist. Fight. History won't forgive you if you don't. I'm awake now, along with some of my brightest friends, and we are angry, we are watching, we outnumber those who want to repeat history, we are strong, we remember, and at the end of the day, we will win.