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- Fernando Chang-Muy, Thomas O'Boyle Lecturer in Law
By Stephanie Herrmann, Perry World House Research Fellow
On Tuesday, January 31, 2017, Perry World House hosted a Rapid Response panel that addressed the Executive Order on Immigration. The panel featured Anne Richard, Former Assistant Secretary of State for the Bureau of Population, Refugees, and Migration, and Fernando Chang-Muy, the Thomas O’Boyle Lecturer at Penn Law School, in conversation about both the immediate and long-term implications of the Executive Order (EO). Although the EO is no longer in effect, its signing, implementation, and continued impact on public sentiment toward refugees and immigrants still carry broader ramifications for US governance and foreign policy. Fernando Chang-Muy discusses these enduring concerns around the EO's legacy in this recent interview.
Q: On Friday, January 27, 2017, Donald Trump signed an EO that barred Syrian refugees from entering the United States, suspended all refugee admissions for 120 days, and blocked citizens from seven countries (Iran, Iraq, Somalia, Sudan, Syria, and Yemen) from traveling to the U.S. As that weekend unfolded, we saw some of the immediate effects that this EO had on families and green card holders abroad. Who else was immediately affected?
A (Fernando): “Universities were [immediately] affected. Both non-immigrant international students and lawful permanent residents (green card holders) were uncertain of their status. In addition, professors from the seven countries may have been abroad; some are in the U.S. and were unsure that if they travel to, say, visit a sick relative, they may not be allowed to return. Although a subsequent memo stated that the order does not affect lawful permanent residents, people are still afraid and confused.”
Q: We’ve heard some rhetoric in this administration about scaling back U.S. funding to international organizations, such as the United Nations, and to humanitarian organizations that serve refugees. How might future legislation that is similar to the EO limit the scope of their work?
A (Fernando): “The office of the UN High Commissioner for Refugees (UNHCR) relies on countries to share responsibilities for refugees in need of protection. We hope that the EO and U.S. suspension of refugee resettlement will not have a domino effect that inspires other countries to close their doors. So, UNHCR is urging, as it always has, for countries to abide by their international agreements and equally important, their humanitarian and moral beliefs. Historically, the U.S. government, like other governments, relies on partner nongovernmental organizations to resettle and to integrate refugees. The International Rescue Committee and other humanitarian resettlement agencies may see their work curtailed as global need for resettlement work [outside the US] increases.”
Q: Despite the recent ruling by the Ninth Circuit, how has the EO complicated paths to citizenship or to integration?
A (Fernando): “On a legal level, lawful permanent residents must reside in the US for a continuous amount of time before applying for citizenship. If lawful permanent residents were abroad for longer than a certain, pre-approved amount of time because they could not come back [during the implementation of the EO], that may delay their ability to apply to be a citizen. Psychologically, the EO may make refugees and lawful permanent residents in the US feel unwanted. This impedes their ability to integrate and to participate in civil society.”
Further Developments and Analysis
On Friday, February 3, 2017, Judge James Robart of the Western District of Washington state issued a temporary restraining order that halted the implementation of the Trump Administration’s EO on Immigration. On Tuesday, February 7, 2017 the federal government presented oral arguments to the Ninth Circuit in a hearing on the government’s request to reinstate the EO.
The ruling in the Ninth Circuit court against reinstating the EO was unanimous. However, changes in immigration enforcement beyond the scope of the EO leave many undocumented persons and asylum seekers in danger of being deported or subjected to rights violations. According to the Department of Homeland Security, more than 680 people have been arrested by Immigration and Customs Enforcement (ICE) officials in the past week. These arrests have sparked fear and outrage within immigrant communities that, at any moment, their homes could be raided and their lives could be upended.
While ICE raids are not unique to this presidency, raids under the Trump administration are unprecedented in some aspects of their execution. ICE agents have been making “collateral arrests,” in violation of the privacies guaranteed under the Fourth Amendment of the US Constitution. In a collateral arrest, ICE officials may arrest anyone at the scene of a raid who is found to be undocumented, even without a warrant. Prior to the signing of the EO, this kind of conduct was only permissible within 100 miles of the US-Mexico border, a zone in which Constitutional protections against detention and searches do not fully apply. The EO effectively eliminated this zonal distinction and has set a new precedent of equating border and interior enforcement. Even though the EO is no longer in operation, ICE practices have continued this policy by instating collateral arrests. Whereas under the Immigration Nationality Act, which outlines cooperation between local and federal officials on immigration law enforcement, the burden of proof was previously on the government to prove that someone is removable, it now resides on affected persons to prove that they are legally able to stay.
This subtle distinction holds implications for “Sanctuary Cities,” which do not voluntarily share information or collaborate with ICE. We can expect that proving legal residence in the US will now entail far more vigilant document authentication and an increased ICE presence in “Sanctuary Cities.” Especially in cases where authentication might end in the deportation of asylum seekers, this is extremely dangerous. Personal documents about an asylum-seeker in the hands of his or her country of origin can sentence this person to a life of torture or persecution, or to death. Furthermore, applications to federal programs, including DACA, or for other benefits that require document authentication might serve as a weapon in the hands of those seeking to identify undocumented persons. Such applications draw attention both to your citizenship status and to that of your entire immediate family.
Not only did the EO and the raids of the past week result in a loss of rights for detainees, but their poorly executed implementation casts doubt on the Trump administration’s understanding of government agencies. Beyond its radical departure from US traditions of immigration and acceptance of refugees, the initial rollout of the EO was unorthodox. Reports of Customs and Borders Protection officials unsure of whom to detain, of airlines themselves monitoring passports and visas, and of lawyers who were denied access to detainees (and vice versa) all paint a picture of a hastily authorized and chaotic implementation, resulting in a loss of procedural rights for detainees at airports.
The EO’s legacy will continue to reverberate beyond US borders. During the Rapid Response program, Former Assistant Secretary Anne Richard mentioned that the implementation of the EO may change the role of the State Department, and particularly that of the Bureau of Population, Refugees, and Migration (BPRM). The BPRM has three main functions: Humanitarian assistance, diplomacy, and the resettlement of UNHCR-referred refugees, she explained. When Donald Trump articulated a need for “extreme” vetting, he undermined the functions of BPRM and its ability to properly screen incoming refugees - notwithstanding our deep vetting system that already exists, Richard noted. We can expect that the administration will do something ‘cosmetic’ to ‘fix’ the vetting process, Richard cautioned.
While it is unclear whether the Trump administration will continue to specifically target travelers from the seven countries or refugees moving forward, there will be future attempts to limit immigration to the US and to crack down on undocumented persons. The recent arrests of Guadalupe Garcia de Rayos and Daniel Ramirez Medina further complicate the premise that ICE enforcement of expedited deportation is solely conducted in the interest of national security.
In the midst of this confusion and uncertainty surrounding the course of US immigration and refugee policies, Chang-Muy emphasizes the need for prominent universities and companies to speak out against unlawful detention, and to speak up for the rights of asylum-seekers, immigrants, and other undocumented persons. Since its signing, President Gutmann of the University of Pennsylvania and Dean Theodore Ruger of Penn Law have both issued statements against anti-immigrant legislation. Penn Law’s clinics have offered pro bono legal advice to concerned or affected students. Penn Global’s “Notice on US Immigration Policy Changes” continually lists resources for Penn community members in need of urgent assistance.
LaShawn Jefferson, the Perry World House Deputy Director and the moderator of the Rapid Response panel, advises courage, vigilance, and vocal activism to bring attention to the rights of immigrants and refugees. “Silence is complicity,” she warns. It is only by relating to others’ experiences, paying attention to all new developments, and working to combat discrimination in all its forms that we can protect the best traditions of the US and shape the country’s best future.