While the Muslim ban faced court challenges, it was eventually approved by the Supreme Court, notably without proper review of the policy. Between the Supreme Court’s temporary approval of the ban in December 2017 and its official approval in June 2018, migration from banned countries was reduced to such an extent that the final approval had no impact numerically—immigration had already been curtailed.
The Muslim ban has impacted three sizable American populations: Yemenis, Syrians and Iranians. It not only prevents family reunification and leaves vulnerable populations in precarious conditions, the process of applying for visas drives many transnational families into poverty and debt. Yemenis have been hit especially hard. In addition, each of these populations come from countries where US foreign policy has contributed to wars, political instability and human suffering. The evolving Muslim ban together with practices along the US southern border form what is becoming a brown and black ban—a set of nativist policies designed to reduce immigration and pick and choose who is allowed to be American. These immigration policies also project to the world a xenophobic vision of American identity and its role in the world. Constructing just, humane and fair US immigration policies is possible, but not without first revoking the Trump administration’s many discriminatory orders. Recent congressional efforts to repeal the ban and limit the president’s authority, along with popular protests, are steps in the right direction. Without a reversal of these domestic policies, however, the United States will never be able to craft a new, more progressive approach to its role in global affairs.
The Muslim Ban Expands and Evolves
Trump’s initial executive order, which targeted some of the most vulnerable Muslim would-be immigrants, caused global pandemonium and faced immediate court challenges when it was issued in January 2017. Mass chaos ensued at airports across the world and at US ports of entry when people with valid US visas were blocked from boarding flights, those in transit were removed from flights and US permanent residents were prevented from entering the United States. Protests by broad solidarity coalitions of immigrant rights groups, faith-based organizations and LGBTQ activists, as well as groups affiliated with Black Lives Matter and others, quickly mobilized at airports across the United States, accompanied by attorneys offering pro bono services for those detained. These actions of protest and solidarity were buttressed by the New York bodega strike during which more than 1,000 New York area stores, mostly owned by Yemenis, were closed for a day and thousands of shopkeepers marched in protest. The bodega strike and protest were organized through the efforts of a range of Yemeni American activists and coalesced in the founding of the New York-based Yemeni American Merchants Association.
Attorneys filed motions in a range of jurisdictions on behalf of those affected by the ban and on February 3 the executive order was stayed by a federal judge, blocking its implementation so that appellate courts could review the cases. Not to be held back, Trump issued a revised order (13780) on March 6 which removed Iraq from the ban and exempted US visa holders and lawful permanent residents (also known as green card holders), but also added a further 90 day travel ban on nationals of the remaining six countries and a 120 day suspension of the refugee admissions program. Within ten days this order too was stayed in the federal courts. In June, the Supreme Court temporarily lifted the ban for individuals with a “bona fide relationship” to a person or entity in the United States.
Trump’s third attempt, Proclamation 9645, issued on September 24, 2017, was framed in the language of information sharing and identity management practices, instead of national security. It argued that the governments of subject countries did not have adequately rigorous security practices—such as electronic passports, criminal data sharing, reporting lost or stolen passports and providing information on known and suspected terrorists—to allow US officials to screen properly. This proclamation ordered an indefinite ban on the issuance of immigrant visas, and most non-immigrant visas, for citizens of Iran, Libya, Somalia, Syria and Yemen. It also added Chad (later removed), North Korea and certain Venezuelan diplomats, removed Sudan and overrode the bona fide relationship exclusion. (The diversionary tactic of including North Korea and certain Venezuelans, countries with limited migration to the United States, was not lost on those familiar with President Bush’s 2002 Special Registration program, in which North Korea rounded out a list of 25 subject countries, the other 24 being Muslim majority.) Rules pertaining to non-immigrant visas varied by country. For example, Iranians could still enter under valid student visas, but they were subject to enhanced screening and vetting. Non-immigrants on business and tourist visas from Chad, Libya and Yemen were barred, while all immigrants and non-immigrants from Syria were banned.
The Supreme Court Steps In
At the Trump administration’s request, and without review, the Supreme Court on December 4, 2017 permitted temporary implementation of the third Muslim ban, the September 2017 Proclamation 9645, rather than wait for the outcomes of pending actions in federal appellate courts. This administration strategy is a “now familiar pattern,” said Justice Sonia Sotomayor in a recent dissent, which forces the Court to “consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument,” thereby eroding a “fair and balanced decision making process.”
Ultimately, on June 26, 2018, a majority of Supreme Court justices stood with the Trump administration and upheld the travel ban, specifically noting that the removal of three Muslim-majority countries proved it was not aimed at Muslims, that the ban allows for numerous exceptions and that it “creates a waiver program open to all covered foreign nationals.” Justice Sotomayor wrote in her dissent, “Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications.” As it turns out, this Supreme Court decision had little impact on would-be travelers since the rubber stamp of December’s temporary approval had already inflicted the damage.
The Supreme Court’s acquiescence to the will of the Trump administration has empowered it to continue to restrict immigration. In January 2020, the administration added new immigration bans for citizens of Myanmar, Eritrea, Kyrgyzstan and Nigeria, and made citizens of Sudan and Tanzania ineligible for US diversity visas, which are awarded by lottery to qualified persons from countries underrepresented among US immigrants. Notably, Rohingya Muslims are now caught up in the travel ban and will be unable to seek safety in the United States from genocide in Myanmar.
Immigration from some of the countries affected by the executive orders and proclamations dropped precipitously even though federal appellate courts had stayed the ban’s implementation through December 2017 (when the Supreme Court temporarily permitted implementation). This drop in immigration numbers suggests that the bans were implemented at the interview stage of the process at US consulates before it was legal to do so. In the most striking case, the number of new US permanent residents accepted from Yemen dropped by more than half before December, from 13,040 in FY 2016 to 6,029 in FY 2017—and the majority of those arrived in the quarter before and the quarter in which Trump took office. (FY refers to federal fiscal years, which run from October 1 to September 30.)
Yemenis and Syrians, seeking to escape war, humanitarian disaster and death in their home countries, were thrown under the bus by the Trump administration. While there was a 400 percent decrease in Iranian new arrivals in FY 2018, there is little evidence of reductions occurring prior to the ban’s temporary approval, as in the case of Yemenis and Syrians. While Iranians continue to become US permanent residents in high numbers—over 9,000 in FY 2018 alone—the overwhelming majority (80 percent) are persons already in the United States who have adjusted their status. Newly immigrating Iranians were down to 36 persons in the fourth quarter, compared to 1,765 in the same quarter a year before.
In sum, the Supreme Court’s temporary approval of the ban, undertaken without review of the policy, reduced migration from banned countries to such an extent that its approval in June of 2018, after review, had no impact numerically; from this perspective, the Supreme Court’s review of the ban was absolutely meaningless. While Trump’s call for a total and complete shutdown of Muslims entering the United States, is not (yet) total or complete, a Cato Institute analysis of State Department data found a 91 percent reduction in Muslim refugees between 2016 and 2018 and a 30 percent drop in immigrant visas issued to nationals of 49 Muslim-majority countries. In addition to the rejection of visa applications by the United States government, increasing numbers of Muslim applications are disappearing into an administrative processing hole, according to the American Immigration Lawyers Association, as family reunification applications are being held up for extreme vetting.
Yemeni Communities Disproportionately Harmed
Yemen has been in a state of war since early 2015, following the Houthi takeover of the capitol Sana’a and the US-backed, Saudi-led bombing campaign to remove them from power. In the ensuing years, persistent war has created a humanitarian crisis in which over 100,000 Yemenis have died, medical supplies have been depleted and millions have been displaced and risk starvation. Living in one of the world’s poorest countries (by economic indicators), Yemenis have a long-standing strategy of survival that utilizes remittances sent by family members working abroad. A significant proportion of this support comes from the estimated 200,000 Yemenis living and working in the United States. These Yemeni American citizens and permanent residents typically function as interdependent, transnational families split between Yemen and the United States, and sometimes other places as well (such as Saudi Arabia). In a common pattern, but not the only one, males work in the United States while women and children in Yemen care for the home, land and each other. Another common pattern has entire families in the United States supporting the families of sisters and brothers in Yemen.
After the commencement of war, the logic behind these arrangements had to be altered. Yemenis in the United States sought to extricate their families from danger and reunite them in the United States. This dramatic change in family survival strategy is evidenced in Department of Homeland Security data on family reunification visas. From a usual pattern of 2,000-3,000 family reunification visas per year, Yemeni applications skyrocketed after the war started, resulting in over 13,000 new lawful permanent residents from Yemen in 2016, 64 percent of whom were immediate relatives of US citizens (spouses, parents, minor children). Most of the rest were “family sponsored” relatives (such as brothers, sisters and married adult children).
The Punishing Costs of Family Reunification
Hiding behind these numbers are thousands of rejected applications, and the tens of thousands of dollars spent on applications and their associated costs by people working long hours in the United States to support their family members here and abroad. Substantial proportions of that money have been diverted to agencies of the US government, landlords, attorneys and others. In the United States, more than half of all Yemenis live at or below 125 percent of the poverty line and only 13.5 percent have a college education. This means that, depending upon family size, more than half of Yemeni Americans have annual incomes ranging between $13,000 (single) and $44,000 (family of eight) with which they are supporting at least two domiciles. Re-routing tens of thousands of dollars to the struggle for a visa risks pushing families on both sides of the ocean into the depths of poverty.
Even before the Muslim ban, Yemenis were subjected to added paperwork and financial burdens by agencies of the US government. These included providing years of financial data proving family connection by remittance support, costly DNA testing to prove paternity and maternity and hiring an attorney to sue the US government to move a file forward out of a stalled position. Indeed, an immigration attorney told me seven years ago that, “you almost have to sue the American government to get a Yemeni case processed.” At the time, the costs of complying with these extra measures ran $8,000 to $10,000, on average, in addition to a few thousand dollars for the upfront filing fees and transportation costs once a visa was issued.
Despite Trump’s Muslim ban, Yemeni American citizens and permanent residents remained determined to bring their families to safety; they continued filing applications for family reunification, submitting documents, paying fees and waiting for interviews. The US government claimed that waivers would be available, a claim the Supreme Court argued had convinced it to uphold the ban. Waivers are processed at a consular official’s discretion after an applicant has been denied under the ban. Waiver applications, which are reviewed by multiple agencies in Washington, DC, need to demonstrate that denying entry would cause undue hardship, that entry poses no threat to national security and would be in the national interest. But, until very recently, approved waivers were few and far between. A 2018 Center for Constitutional Rights and Yale Law School report characterized the waiver process as lengthy, “harsh and opaque;” a former consulate official referred to it as a “fraud.” A State Department report issued in April 2019 in response to a request from Senator Chris Van Hollen showed a 6 percent approval rate on all waiver applications between December 2017 and the end of October 2018. A second State Department report covering a longer period (through March 2019) showed an even lower 5 percent approval rate.
In addition, there is plenty of evidence of practices that smack of mean spirit, such as numerous reported instances where waivers were finally issued to children but not their parents, or to parents but not their children, or to some children and not others, resulting in further separations, longer stays in Djibouti and greater exhaustion of family financial resources.
What these data do not reveal is just how long these families have been waiting and the amount of family financial resources they had depleted in the meantime. A 2019 report by Georgetown University’s Bridge Initiative detailed staggering costs—for some families nearly $70,000—largely spent on extended rentals and food in Djibouti (in some cases Cairo). At that time, waits for interviews and waiver approvals averaged more than one year. Since few Yemeni American families have tens of thousands of dollars to spare to cover these costs, they borrow from other Yemenis, incurring long-term debt that whittles away from family support and remittance money. Among its more hidden features, the Muslim ban thus undercuts the very economic survival of Yemeni families across two continents by draining them of their financial resources.
Protests, Policies, Possibilities
At its root, the Muslim ban lacks moral conscience and punishes populations who have suffered from US interventionist policies abroad. It bars entire nations of people from entering the United States on the basis of a purported threat that is not substantiated by any data. As the Brennan Center for Justice put it, people should be held accountable for their “personal conduct” not their national origin or other identifying trait and policies should be based on “proof, not prejudice.” The Muslim ban harkens back to the 1917 immigration act that introduced the “Asiatic barred zone,” enacted by Congress for fully racist reasons. It is also reminiscent of the years immediately following the September 11, 2001 attacks when a wide range of sweeping policies were implemented to surveil, question, register, incarcerate and deport Arabs and Muslims in the United States.
With the first iteration of the Muslim ban, popular dissent was expressed at airports, starting with New York’s JFK airport and spreading to airports in Chicago, Los Angeles, San Francisco, Seattle, Detroit and at least ten others. These nationwide mobilizations represented a change of profound proportions for Arab and Muslim Americans. Now their interests were being defended by a wide range of allies, including members of African American, Latinx, Asian American, Jewish American, LGBTQ and white communities, as well as elected officials. Black Lives Matter Global Network issued a statement that read in part “we know that an attack on any of us is an attack on all of us.” Arab and Muslim Americans, working in tandem with immigrant rights and faith-based groups, participated in the organizing leadership, another profound change.
In prior decades, Arab and Muslim Americans stood largely alone, often treated as pariahs by mainstream activists. After September 11, when they were being hounded by agencies of the US government, they were largely, though not totally, undefended. All that changed in the ensuing years as the US government’s draconian policies uncovered no terrorists “hiding” among American communities as it had alleged—laying bare the racialized foundation of its policies. Arab American civic organizations and Muslim American faith-based associations also worked to cultivate shared interest political alliances, including with groups unimagined just a few years back (such as LGBTQ and Jewish American groups).
These actions were supplemented by other forms of dissent, including a one-hour strike organized by New York City’s Taxi Workers Alliance on January 28, which declared in a statement, “Our 19,000-member-strong union stands firmly opposed to Donald Trump’s Muslim ban. As an organization whose membership is largely Muslim, a workforce that’s almost universally immigrant, and a working-class movement that is rooted in the defense of the oppressed, we say no to this inhumane and unconstitutional ban.” On February 2, Comcast employees walked out in multiple locations, and in an unprecedented action, Yemeni American shopkeepers held the bodega strike.
On the Congressional level, the US House of Representatives convened its first oversight hearing on the Muslim ban (Proclamation 9645) on September 24, 2019, almost two years after it went into effect. A State Department representative reported that the waiver process had been considerably sped up by automation, but by the end of August only 7,679 waivers had been issued, most of them in the past few months, out of more than 72,000 applications. Of these, 4,031 had been issued to Yemenis. Clearly, Congressional oversight matters, as well as using up to date computer technology (“automation”)—more recent data indicate that over 4,000 waivers were issued to Yemenis after the hearing, bringing the total number of waivers granted to 9,319 since December 2017. In this four-month period, 77 percent of Yemeni visa applicants were considered for waivers, of which 72 percent were approved. Syrians and Iranians did not fare as well. For Syrians, 52 percent of immigrant and non-immigrant visa applicants were considered for waivers, with a 35 percent approval rate. For Iranians, 82 percent were considered for waivers, with a 17 percent approval rate.
Recent protest action has been focused on the NO BAN ACT (National Origin-Based Antidiscrimination for Nonimmigrants Act), a Congressional effort that would limit the president’s authority to suspend or restrict “aliens” from entering the United States, terminate presidential actions implementing such restrictions (such as the Muslim ban) and prohibit religious discrimination in immigration-related decisions. Introduced by Representative Judy Chu in the House (H.R. 2214) and Senator Chris Coons in the Senate (S. 1123), by mid-March the NO BAN ACT had 219 House co-sponsors and 40 in the Senate. According to Muslim Advocates, more than 400 civil rights, faith-based, national security and community groups, plus more than a dozen major corporations, support the bill “because separating families is immoral and religious freedom is meant for ALL.” Scheduled for a House vote in mid-March, it was taken off the table due to the COVID-19 crisis. Since it would limit presidential powers, require consultation with Congress and demand reporting from the Department of Homeland Security and the State Department, the NO BAN ACT was unlikely to pass in the current republican-controlled Senate.
With limited avenues available for expressing opposition, whether through civic protest, the appellate courts or Congress, what remains for dissenters is the popular vote on election day. New immigration policies must be rooted in our shared human dignity instead of nativism and white supremacy. Such policies would champion the rights of the undocumented and Dreamers, reinstate family reunification and provide for a fair and swift asylum process in accordance with international law. These policies have strong support across the US population. The United States must generously receive persons in need of refuge and cancel the Trump administration’s discriminatory executive actions aimed at limiting, often on racial lines, who is allowed to live in the United States and who can be an American. More broadly, the mobilization against the Muslim ban and in favor of immigration reform can build political support for a more inclusive and plural understanding of American identity and point the way to a new vision for the US role in the world.
[Louise Cainkar is associate professor of sociology and social justice and the director of Peace Studies at Marquette University in Milwaukee.]