By the end of his first few weeks in office, President Donald Trump had managed to rile up most everyone in the country who was not agitated already. Of the many unsettling Trump initiatives, one of the most contentious has been his effort to make good on campaign promises of “extreme vetting” of immigrants and visitors from abroad, particularly those from Muslim-majority countries. When he first tried it, in late January, immigration lawyers and protesters turned US airports into hives of resistance, helping affected travelers navigate the new barriers to their entry. In both this iteration of “extreme vetting” and the second, some six weeks later, the courts also became entangled in a high-stakes fight over immigration, civil rights and the extent of presidential power.
Congress has delegated broad authority to the president over immigration policy. As such, courts have generally deferred to the executive on these matters and often avoid analyzing the motives behind a given president’s immigration policies, particularly when national security is invoked as a justification. There are, however, constitutional and statutory limits to this power. The legal challenges working their way through the courts may soon provide some clarity as to the extent of these limits.
The cases raise many interesting legal questions. For example, how much should courts delve into the discriminatory purpose behind Trump’s orders? Or, more abstractly, how should presidential authority over immigration policy be balanced against the constitutionally protected civil rights and liberties interests of those affected by the relevant policies? If there are disagreements among federal circuit courts over these questions, it will be more likely that some of the legal issues involved will come before the US Supreme Court.
The two executive orders implementing “extreme vetting” have caused a major stir within the Iranian-American community, as in other affected communities. Iranian-Americans are at a juncture where they are becoming more visible as a community but, in the process, they will likely have to reshape their identities as Iranian-Americans and a minority group. This change may have to involve the adaptation or diversification of a historically entrenched identity and a rethinking of the community’s priorities.
Muslim Ban 1.0
On January 27, President Trump kicked off the furor by signing Executive Order 13769, which restricted the entry into the US of visitors, including valid visa holders, from seven Muslim-majority countries—Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen—for a period of 90 days. The order, immediately dubbed the “Muslim ban” by its opponents, also indefinitely suspended the entry of Syrian refugees, and for 120 days that of all refugees under the US Refugee Admissions Program.
The order sowed widespread fear and confusion, not least because the text did not clarify the categories of travelers to which it applied. For example, the White House originally said that the ban also applied to lawful permanent residents, or green card holders, but soon reversed that position under pressure. [1]
The punitive effects, however, were immediate. Media accounts estimated that 100 to 200 people were detained upon arrival at US airports. [2] Tens of thousands of visas were revoked. [3] And the Department of Homeland Security reported that between the issuance of the order and February 1, more than 900 people headed to the US were stopped from boarding planes overseas. [4] The actual numbers are probably higher.
The Iranian-American community was particularly hard hit. The Washington Post, using State Department figures, calculated that of the 90,000 visas issued to nationals of the seven designated countries in fiscal year 2015, the most recent year for which data was available, nearly half were granted to applicants from Iran. This proportion rose to roughly 57 percent when excluding statistics on Iraqi nationals. [5] Presumably, there is currently a similar number of Iranians with US visas, the majority of whom would now be barred from entry if the order were to continue to apply. The State Department has announced that the ban would affect roughly 60,000 visa holders from the designated countries without specifying how many of those people would be Iranian nationals. [6] The high proportion of Iranians in the visa data is clearly associated with the large number of Iranians who immigrated to the US after the 1979 revolution and the continued interaction between citizens of both countries, precisely because of the large number of Iranian-Americans, many of whom are now second- or even third-generation.
Additionally, the executive order stated that, during the suspension period, the secretary of homeland security would consult with the secretary of state and the director of national intelligence in conducting a review to determine the information required from foreign countries concerning subject travelers. If any foreign country failed to provide the requested information within a 60-day window, its nationals could be subject to an indefinite ban. As a matter of logic, the likelihood of a permanent ban against Iranian nationals seemed ominously high. The two countries lack formal diplomatic relations, and neither side is generally keen to share information with the other. Sure enough, after news of the order broke, Iranian Foreign Minister Mohammad Javad Zarif stated that information requests could not be “accommodated by the government of the Islamic Republic of Iran.” [7]
The Trump administration awkwardly framed the executive order as a national security measure—though it was unable to provide any evidence that nationals from the named countries had perpetrated terrorist attacks against the US since September 11, 2001, or explain why it had excluded nationals from countries, such as Saudi Arabia, who were among the hijackers on that day. As one justification, the White House argued that the designated seven were those previously identified by the Obama administration as sources of terror. The contention was misleading at best. The reference was to legislation (HR 158) that Congress had stuffed into an omnibus bill. The law restricted a visa waiver program that allowed citizens of 38 countries to visit the US without a visa by excluding from the program individuals who were dual citizens of or frequently travel to certain countries, including Iran. Civil rights groups had opposed that legislation, too—but it was not an outright ban.
The president’s own statements left little doubt about the executive order’s true objective. During the presidential campaign, Trump had repeatedly said that he would ban Muslims from entering the US. The Trump supporter and former New York mayor, Rudy Giuliani, went on the air to defend the ban by unabashedly explaining that Trump wanted a “Muslim ban” and had asked Giuliani to put together a commission to figure out how to “do it legally.” [8] In an interview on the day the order was rolled out, Trump stated that the administration would prioritize Christian refugees for admission. [9] Indeed, the order carved out a special place for Christians by stating that preference would be given to “religious minority” refugees from the targeted countries.
A flurry of litigation accompanied the protests at airports. In response, courts in New York, Virginia, Massachusetts, California, Washington and elsewhere blocked aspects of Executive Order 13769 to varying degrees. In one notable case, in Boston, the American Civil Liberties Union (ACLU) and other organizations, representing two Iranian nationals and US lawful permanent residents, successfully sued to prevent (albeit temporarily) the detention or removal of those who, absent the order, would be legally authorized to enter the US. [10]
The broadest ruling came from a federal district court in Washington state on February 3. The court issued a temporary nationwide halt to implementation of key aspects of the travel ban. [11] The Ninth Circuit Court of Appeals affirmed the stoppage. The government decided not to appeal to the Supreme Court—probably because most judges hearing the challenges had found the order to raise serious constitutional concerns, and because at the time the balance at the Supreme Court, which had lost one of its key conservative voices in Justice Antonin Scalia (whose replacement Neil Gorsuch had not yet been confirmed), was not in the government’s favor. Instead, the Trump administration warned, it would rescind the order and replace it with a revised version that would eliminate any constitutional concerns.
Muslim Ban 2.0
True to his word, President Trump signed a new executive order into law on March 6. The new order tweaked the original so as to avoid the types of legal challenge that halted the first order’s implementation. Its core objective of religious discrimination, though, remained.
In particular, the revised ban clarified who it did not apply to, including: lawful permanent residents, dual nationals traveling on a passport issued by a country not targeted by the order, and individuals who currently hold valid visas. It authorized consular officials to use discretion in waiving the travel restriction upon determining that the restriction would cause undue hardship to a particular traveler, that entry would not pose a national security threat, and that it would be in the public interest.
The new executive order also eliminated any reference to official preference for religious minorities and no longer singled out Syria for indefinite suspension under the refugee program. Finally, Iraq was dropped from the list of designated countries after pressure from the Pentagon and the State Department. [12] But the new order maintained the 90-day ban on the other original six countries as well as the 120-day suspension of the refugee program, both set to go into effect on March 16.
This time, Hawai‘i was the first state to challenge the ban. Assisted by the former deputy solicitor general in the Obama administration, Neal Katyal, the state argued that the ban financially harmed Hawai‘i’s tourism-dependent economy and prevented its state university from benefiting from the educational contributions of faculty and students from the designated countries. [13]
In parallel proceedings, the District Court for the District of Maryland blocked enforcement of Section 2(c) of the executive order, which restricts the entry of visitors from the six designated countries. [14] The government appealed. On May 8, the US Court of Appeals for the Fourth Circuit heard oral arguments in the case. The hearing was held en banc (all active, eligible judges of the court) before a 13-judge panel, rather than the usual three-judge panel. While it is rare for initial hearings to be held en banc, circuit courts have the authority to hold them when necessary to secure the uniformity of the court’s decisions, or when a proceeding involves a question of exceptional importance.
Because the new order revises or fine-tunes several key vulnerabilities of the original order, there is greater uncertainty and more debate about how courts will rule on it. Notably, there is a question as to whether judges will be deferential to the president and merely consider the plain text of the law—which, in legal terminology, is facially neutral as to religion—in determining its constitutionality, or whether they will be willing also to consider the historical context of the order. As the ACLU’s legal director, David Cole, argues, “The fact that the government has repackaged the ban does not alter its intent or effect—to target members of a particular religion.” [15]
The Hawai‘i federal district court judge considering the case seemed to agree with Cole’s logic. According to Judge Derrick Watson, “a reasonable, objective observer—enlightened by the specific historical context, contemporaneous, public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.” Hours before the ban was set to take effect, Judge Watson issued an order for a nationwide block to key aspects of it (Sections 2 and 6), an order that he later extended indefinitely and which is more expansive than the Maryland court’s injunction. [16] The government has appealed Watson’s ruling, which, again, will go before the Ninth Circuit, with the first hearing scheduled for May 15. The appeals court rejected Hawai‘i’s request that the hearing be held before an en banc court. Democratic appointees in the Ninth Circuit outnumber their Republican-appointed counterparts, so Hawai‘i may have had a better chance for a favorable ruling—whereas a three-judge panel could be made up of a majority or all Republican appointees. [17]
To be clear, the district court rulings do not resolve the constitutional and statutory claims against the executive order on their merits. Rather, the courts blocked aspects of the ban after finding that the plaintiffs had a likelihood of success on the merits of their case, that they were likely to suffer irreparable harm if the injunction were not granted, and that an injunction was in the public interest.
In contrast, other federal courts, such as in Virginia, declined to consider the government’s purpose behind a facially neutral law, denying requests to block the executive order. [18] Similarly, five Ninth Circuit judges, weary of what they consider judicial overreach, issued dissenting opinions on the Ninth Circuit panel decision in the Washington case concerning the original “Muslim ban.” As one judge argued, “No Supreme Court case—indeed no case anywhere that I am aware of—sweeps so widely in probing politicians for unconstitutional motives.” [19]
As such, it remains an open question as to how appellate courts will come down on the revised ban. Any circuit court splits on legal issues make it more likely that the Supreme Court, now fully staffed with nine members, will take up the issues raised.
Iranian-Americans Go to Court
The four largest Iranian-American organizations, and more than a dozen individual plaintiffs, have entered the legal battle. In Pars Equality Center v. Trump, they filed a lawsuit against the original ban on February 8 and later amended their complaint after issuance of the March 6 order. [20] It is the first time that the Pars Equality Center, the Iranian American Bar Association, the Public Affairs Alliance of Iranian Americans (PAAIA) and the National Iranian American Council (NIAC) have joined together in court. Other civil rights groups, including the American-Arab Anti-Discrimination Committee and the Center for Constitutional Rights, joined as amici (a term referring to groups that are not parties to the case but who provide their views, which the court may use in making its decision). [21] The first hearing in the case took place on April 18 in the District Court for the District of Columbia.
The suit raises many of the same constitutional and statutory claims that underpin other cases against the ban concerning the government’s religion- and national origin-based discrimination, and the deprivation of people’s liberty interests without due process of law. The plaintiffs also argue that the travel ban violates the First Amendment’s establishment clause—any law that has the purpose of favoring or disfavoring a particular religion runs afoul of this clause—and offer ample evidence of various occasions on which Trump administration officials and advisers, including the president himself, expressed an intent to target Muslims.
Various individual Iranians who are US lawful permanent residents or visa holders also sued, in courts in Massachusetts, California, New York and other states, to challenge their detention or visa revocation. [22]
Additionally, NIAC joined 73 other organizations as amici in Maslenjak v. US, a case currently before the Supreme Court, to push for broader protections for naturalized citizens against denaturalization. [23] At issue in the case is whether to allow the government to strip naturalized American citizens of their citizenship in a criminal proceeding based on an immaterial false statement during the immigration process. While not related to the travel ban, the case’s outcome could have significant repercussions for how immigrants—including Iranians—experience US citizenship and the vulnerabilities they face as naturalized US citizens. Further, it is perhaps a harbinger of an increasing need for Iranian-American organizations to focus on how Iranian-Americans define and shape their role as a minority group in the US, and the kinds of alliances they need to form with other civil rights groups in doing so.
A Shifting Identity?
An interesting outcome of the ban has been that previously disaggregated Iranian-American organizations have had to make common cause. They have had to coordinate in mounting a strategic challenge to the targeting of their community members, both through political advocacy and in the courts. In a joint press release, a rare occurrence, on April 5 the four main organizations highlighted a common set of values and goals: “As members of the Iranian-American community, we are active contributors to society who—like all other Americans—are entitled to live in peace and without fear of discrimination. As members of the Iranian diaspora, we are proud of our heritage and have deep connections to our ancestral homeland. We are committed to proactively engaging to protect the interests of our community and the values of this country.”
Clearly, the emphasis on connection to the “proud heritage” of the “ancestral homeland’ is playing a key role in the fight to make the voices of Iranian-Americans heard. It is an interesting shift because Iranian-Americans have long felt some reluctance to highlight Iranian heritage and ethnicity due to the decades of hostility between the US and the Islamic Republic. In fact, analysts generally cite this reluctance to explain the low number of US citizens of full or partial Iranian ancestry (fewer than 500,000) in US census figures.
In recent years, however, Iranian-Americans seem to be working hard to present themselves as a “model minority” or model immigrant community. And, in fact, the travel ban and responses to it have accentuated these efforts. In interviews, press releases and open letters to politicians, Iranian-Americans reiterate that they have brought impressive qualifications with them to the US, and that they are an American success story—they are the technology leaders, scientists, doctors, engineers, attorneys, academics and policymakers. They are part of what makes America great. [24] Even in the court documents in their lawsuit, the plaintiffs in Pars Equality Center v. Trump underscore the contributions that professionally successful members of the community have made, including the likes of Pierre Omidyar (the founder of eBay), Cyrus Amir-Mokri (a former assistant secretary at the Department of Treasury) and Christiane Amanpour (the famed international correspondent for CNN).
And the positive portrayals do not stop there. During 2017’s Nowruz—the Iranian new year, on the first day of spring—the Internet was flooded with videos, images and articles boasting of the beauty and history of this non-Islamic holiday and the delicacies of Persian cuisine. [25] The pride in cultural heritage was further embraced as a means of challenging the irrationality of the travel ban in presumably preventing an especially talented people from coming to a country of immigrants.
But the embrace of the “model minority” template has not been without its tensions and paradoxes. Iranians have historically managed to carve out a distinct identity for themselves, separate from Arabs and other Middle Eastern neighbors. As pointed out by scholars, this distinct identity has at times gone beyond mere separation and has served as a claim to superiority. [26] The Iranian-American comedian Maz Jobrani acutely satirizes how Iranians like to represent themselves as friendly and unthreatening—“I’m Persian, Persian, Persian…like a cat. Meow”—in contrast to prevalent media stereotypes of Arabs.
This desire for a separate, self-elevating Iranian identity has inevitably extended to how Iranian-Americans identify themselves as an ethnic minority group in the US. Iranians primarily identify as Iranian and/or Persian, and have not relied much on broader linguistic and cultural, regional or religious identities that may be available to them in the US (in contrast, for example, to Arab-Americans). According to a study commissioned by PAAIA in 2016, most Iranian-Americans identify as Iranian-American (country of origin) and/or Persian-American (ethnicity), whereas only 10 percent identify by religion (for instance, Muslim, Christian or Jewish). While many Iranian-Americans previously had shunned a “Middle Eastern” and/or “Muslim” identity (and some continue to do so), Iranian-American individuals and organizations are increasingly relying on these broader identities to navigate the political and judicial process. Underscoring this necessity is the fact that in order to challenge the travel ban as a civil rights issue, they have to do so as “Muslims.”
There is another occurrence that may help Iranian-Americans reprioritize their values. For the 2020 census, the US Census Bureau has recommended including a new geographic category for people of Middle Eastern and North African descent. Under existing census categories, Iranian-Americans would generally fall under the “white” category, which encompasses people from the “Middle East.” Iranian-American groups have pushed for a designated check box or write-in option for “Iranian” under the Middle Eastern and North African rubric. This sub-option, however, may not be available, further pushing Iranian-Americans to figure out how to shape a broader identity as Middle Easterners.
Some community members will no doubt be concerned that becoming more visible and recognized as Middle Easterners will make them more vulnerable to government monitoring and targeting. But data matters. Greater visibility would increase the community’s political voice, more accurately capture its social and economic realities and measure the prevalence of discrimination, and also affect the allocation of government resources that can help Iranian-Americans.
In the PAAIA study mentioned above, only 5 percent of respondents chose civil liberties as one of their top two priorities when choosing among presidential and Congressional candidates. The Trump era, however, has forced Iranian-Americans to fight for their civil rights and liberties in the same way as, and along with, fellow immigrant and minority communities. The current political climate may ultimately present an impetus for the community to reframe how it represents itself as a body of immigrants and Americans. In turn, this reframing would also shift the type of political and social advocacy that Iranian-American organizational representatives do on the community’s behalf.
Endnotes
[1] Politico, February 2, 2017.
[2] New York Times, January 28, 2017.
[3] Washington Post, February 3, 2017.
[4] Washington Post, January 30, 2017.
[5] Ibid.
[6] Ibid.
[7] See Zarif’s comments here.
[8] Washington Post, January 29, 2017.
[9] See Trump’s interview with the Brody File.
[10] Louhghalam v. Trump, Temporary Restraining Order (US District Court for the District of Massachusetts, January 29, 2017).
[11] Washington v. Trump, Temporary Restraining Order (US District Court for the Western District of Washington, February 3, 2017).
[12] Al Jazeera, March 6, 2017.
[13] Hawai‘i v. Trump, Second Amended Complaint for Declaratory and Injunctive Relief (US District Court for the District of Hawai‘i, March 8, 2017).
[14] IRAP v. Trump, Memorandum Opinion (US District Court for the District of Maryland, March 16, 2017).
[15] David Cole, “We’ll See You in Court, 2.0: Once a Muslim Ban, Still a Muslim Ban,” Just Security, March 6, 2017.
[16] Hawai‘i v. Trump, Order Granting Motion to Convert Temporary Restraining Order to a Preliminary Injunction (US District Court for the District of Hawai‘i, March 29, 2017).
[17] Politico, April 11, 2017; Hawai‘i v. Trump, Plaintiffs-Appellees’ Petition for Initial Hearing En Banc (US Court of Appeals for the Ninth Circuit, April 11, 2017).
[18] Sarsour v. Trump, Memorandum Opinion (US District Court for the Eastern District of Virginia, January 30, 2017).
[19] See Judge Alex Kozinski’s dissenting opinion from the denial of reconsideration en banc of the three-judge panel opinion that upheld the blocking of the first executive order.
[20] Pars v. Trump, Amended Complaint.
[21] Amicus brief in Pars v. Trump (March 23, 2017).
[22] See Louhghalam v. Trump, Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (US District Court for the District of Massachusetts, January 28, 2017); Vayeghan v. Kelly, Temporary Restraining Order (US District Court for the District of California, January 29, 2017); Zadeh v. Trump, Complaint (US District Court for the District of Columbia, February 3, 2017); Fasihianifard v. Trump, Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (US District Court for the Eastern District of New York, January 29, 2017).
[23] Amicus brief in Maslenjak v. US (March 6, 2017).
[24] See VentureBeat, January 30, 2017.
[25] New York Times, March 14, 2017.
[26] Reza Zia-Ebrahimi, “Iranian Identity, the ‘Aryan Race’ and Jake Gyllenhaal,” Tehran Bureau, August 6, 2010.
