On Friday, President Trump signed an Executive Order targeting immigrants and refugees from 7 majority Muslim countries: Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. The order has been met with strong protests, questions about it’s legality, and numerous horror stories about children detained in isolation and Iraqi interpreters – who risked their lives and the lives of their families in service to our country – being barred entry.
I’ve been trying to figure out where that list of seven countries comes from. As it turns out, this is not a particularly easy task.
The Executive Order does not refer to the countries directly. Rather, it reads:
I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States,
INA refers to the Immigration and Nationality Act which was originally created in 1952, though it has been amended several times since then. As the INA website explains:
Although it stands alone as a body of law, the Act is also contained in the United States Code (U.S.C.). The code is a collection of all the laws of the United States…When browsing the INA or other statutes you will often see reference to the U.S. Code citation…Although it is correct to refer to a specific section by either its INA citation or its U.S. code, the INA citation is more commonly used.
So, when the Executive Order refers to “217(a)(12) of the INA” and “8 U.S.C. 1187(a)(12),” those are two citations for the same thing, both included for completeness.
Now, Section 217 of the INA deals with “Visa Waiver Program for Certain Visitors” and 217(a) reads:
(a) ESTABLISHMENT OF PROGRAM.-The Attorney General and the Secretary of State are authorized to establish a program (hereinafter in this section referred to as the “program”) under which the requirement of paragraph (7)(B)(i)(II) of section 212(a) may be waived by the Attorney General, in consultation with the Secretary of State, and in accordance with this section, in the case of an alien who meets the following requirements:
Bullet points (1) – (11) then list the requirements for “aliens” receiving a waiver.
Now, I’m no legal scholar, but there is no bullet point 12.
The text for the INA is hosted by the Department for Homeland Security, and the text for the related United States Code, 8 U.S.C. 1187, is hosted by the U.S. Government Publishing Office. Neither website includes a point 12. So I could tell you about 217(a)(11) of the INA and 8 U.S.C. 1187(a)(11), but I can’t tell you about the law referenced in President Trump’s Executive Order: section 217(a)(12) of the INA or 8 U.S.C. 1187(a)(12).
So where does that list of 7 countries come from?
I assumed I must be going about this all wrong, and that someone else had figured it all out already.
I looked at the New York Times helpful annotation of the Executive Order. Following the paragraph referencing section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), the New York Times annotates:
The countries are Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen.
But where does that list of 7 countries come from?
President Trump has argued that his order is not substantially different from measures taken by President Obama (Fact Check: False). The list of countries may have come from President Obama, however, as CNN indicates:
In December 2015, President Obama signed into law a measure placing limited restrictions on certain travelers who had visited Iran, Iraq, Sudan, or Syria on or after March 1, 2011. Two months later, the Obama administration added Libya, Somalia, and Yemen to the list, in what it called an effort to address “the growing threat from foreign terrorist fighters.”
This implies that the list of affected countries can be found in two press releases from the Department of Homeland Security, the first from January 21, 2016 reads:
The United States today began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). U.S. Customs and Border Protection (CBP) welcomes more than a million passengers arriving to the United States every day and is committed to facilitating legitimate travel while maintaining the highest standards of security and border protection. Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):
- Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
- Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.
The second release from February 18, 2016 then adds Libya, Somalia, and Yemen as “countries of concern.”
Now, Politifact has a great comparison between President Obama’s and President Trump’s policies…but I’m still unclear on how the 2016 list of countries ended up in President Trump’s Executive Order. And what is the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 anyway?
I’m glad you asked.
The official Congressional website indicates the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 as coming from H.R.158: An act to amend the Immigration and Nationality Act to provide enhanced security measures for the visa waiver program, and for other purposes.
This act was approved by the house and voted into law as part of an appropriations act (HR 2029).
Now, this bill includes:
(SEC. 3) Section 217(a) of the Immigration and Nationality Act (8 U.S.C. 1187(a)), as amended by this Act, is further amended by adding at the end the following: (12) NOT PRESENT IN IRAQ, SYRIA, OR ANY OTHER COUNTRY OR AREA OF CONCERN.
…in a country that is designated by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism;
None of that is particularly helpful, though again the related Homeland Security press release identifies the affected countries as Iran, Iraq, Sudan, or Syria, with Libya, Somalia, and Yemen added a month later.
Now, while I still don’t understand why there isn’t a section 217(a)(12) of the INA, it’s important to note that this list of countries was affected by a visa waiver program. As the DHS release clarifies:
These individuals will still be able to apply for a visa using the regular immigration process at our embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis.
And it goes on – as HR 158 does – to clarify that the change will not effect foreign nationals who were in the named countries “in order to perform military service in the armed forces of a program country.”
So those Iraqi interpreters?
Yeah, we should let them in.