Excluding Misogyny: Curtailing Violence Against Women Through Ideological Exclusion

Summary

• Donald Trump is advocating on the campaign trail for “strong ideological screening of all migrants to the United States”. This report considers the use of ideological screening specifically to curtail violence against women.
• Around the world, severe forms of culturally and religiously based violence against women are carried out on an all too regular basis, including female genital mutilation, honor killings, female infanticide, sex-selection abortions carried out to prevent the birth of girls, dowry-related killings, and killings based on accusations of witchcraft.
• The United Nations estimates that “more than 130 million girls and women alive today have undergone female genital mutilation, mainly in Africa and some countries in the Middle East” and estimates that there are about 142 million “missing” females around the world “due to the cumulative effect of postnatal [including through infanticide] and prenatal [including through abortion] sex selection in the past”, including about 72 million in the People’s Republic of China and about 46 million in India.
• These brutal and abhorrent practices have been introduced to the United States by immigrants from areas of the world where they are prevalent. Efforts to stem their spread have been hobbled by political correctness, the widely subscribed-to doctrine of multiculturalism, and the fear of accusations of racism, since “to suggest violence against girls and women arises from specific cultural values implies some cultures are better than others where treatment of women is concerned”.
• Therefore, preventing the arrival on our shores of aliens who advocate, or even simply believe in, such practices is likely one of the most effective methods available of halting the practices’ further introduction and spread in the United States.
• The president can prohibit the entry of aliens whose entry “would be detrimental to the interests of the United States”. The use of this statutory power to prohibit the entry of aliens who advocate, or believe in, such practices should be seriously considered by this and subsequent administrations. However, many aliens would ignore such a proclamation and enter the U.S. anyway. Most of them would have the ability to apply for asylum using the same broken proceedings that are currently utterly failing the American people. DHS and DOJ could use their authority to issue regulations specifying that aliens are ineligible for asylum who advocate or believe in such practices. However, there is a risk that a federal court would strike down such a regulation.
• Thus, to most effectively ensure that DHS can prevent aliens who advocate or believe in such violence against women from coming to the United States or remaining here (if they have not been formally admitted), Congress should give serious consideration to making such advocacy and belief both a statutory ground of inadmissibility, a statutory bar to asylum eligibility, and a statutory bar to being found to have a credible fear of persecution. In addition, to enable DHS to remove admitted aliens who so advocate or believe, Congress should also give serious consideration to making such advocacy and belief a statutory ground of deportability for admitted aliens.

Introduction

Charlie Savage, Maggie Haberman, and Jonathan Swan reported in the New York Times that “In a second Trump presidency ... U.S. consular officials abroad will be directed to expand ideological screening of visa applicants to block people the Trump administration considers to have undesirable attitudes.” PolitiFact reported Trump as stating:

[W]e will revoke the student visas of radical anti-American and antisemitic foreigners at our colleges and universities and we will send them straight back home ... [and will institute] strong ideological screening of all migrants to the United States[.]... If you want to abolish the state of Israel, you’re disqualified. If you support Hamas or the ideology behind Hamas, you’re disqualified. And if you’re a communist, Marxist or fascist, you are disqualified.

PolitiFact had “reached out to Trump’s campaign to ask what this ideological screening would entail” but stated that it “did not receive a response” and that “This was not among the plans that [Stephen] Miller shared with The New York Times.” Kate Sullivan had earlier reported for CNN that “Trump said ... he would implement ‘strong ideological screening of all immigrants to the United States’ [that] would block ‘dangerous lunatics, haters, bigots and maniacs [from] get[ting] residency in our country.’”

Aside from communists, Marxists, fascists, and those who pay homage to Hamas, what ideologies might trigger exclusion in a possible second Trump administration or other non-Biden administration? For that matter, what ideologies should trigger exclusion? And would such exclusion stand up in federal court?

In this report, I will consider the use of ideological screening specifically to curtail violence against women in the United States. In future reports, I plan to consider the use of ideological screening to achieve other beneficial results.

Culturally and Religiously Based Violence Against Women

In 2006, the Division for the Advancement of Women of the United Nations Secretariat’s Department of Economic and Social Affairs [“Division for the Advancement of Women”] prepared an in-depth study on all forms of violence against women that concluded that “Female infanticide and prenatal sex selection ... dowry-related violence, female genital mutilation/cutting [“FGM”, and] crimes against women committed in the name of ‘honour’” are “forms of violence against women that are considered harmful traditional practices.”

Dr. Natalia Kanem, the executive director of the United Nations Population Fund (UNFPA), has stated that “Every day, tens of thousands of girls have their health, rights and futures stolen. Some are subjected to female genital mutilation ... and still others are neglected or starved, simply because they are female.”

UNFPA, “the United Nations sexual and reproductive health agency”, has a goal of “ending unmet need for family planning, preventable maternal death, and gender-based violence and harmful practices including child marriage and female genital mutilation by 2030.” In 2020, it published Against My Will: Defying the Practices that Harm Women and Girls and Undermine Equality, which “focuse[d] on three harmful practices — female genital mutilation, child marriage and son preference — that have long been denounced in international human rights agreements as well as national constitutions and laws”. The report concluded that:

• Such practices may be “explained” under guise of tradition, religion or culture. They may even, on the surface, be well intentioned. The family of a girl may genuinely believe that ... [p]erforming [FGM] may ... ensure her acceptance as an adult within her community.

  But all harmful practices come down to the assumption that the rights and well-being of a woman or girl are less than those of men and boys.

• Harmful practices stem from social norms that perpetuate the dominance of men over women, boys over girls. They are about the inequality of women and children, based on sex, gender, age and other intersecting factors. Ultimately, they are imposed on women and children by family members, community members or society at large — regardless of consent.

Female Genital Mutilation

In 2020, the U.S. House of Representatives passed U.S. Rep. Sheila Jackson Lee’s (D-Texas) “Strengthening the Opposition to Female Genital Mutilation Act of 2020” by voice vote and the Senate passed the bill by unanimous consent. President Trump signed it into law in January 2021. The legislation declared that FGM is “recognized internationally as a human rights violation and a form of child abuse, gender discrimination, and violence against women and girls” and “is a heinous practice that often inflicts excruciating pain on its victims and causes them to suffer grave physical and psychological harm”.

Also near the end of the Trump administration, David Burns, acting assistant attorney general of the Justice Department’s (DOJ) Criminal Division, stated that FGM is an “abhorrent form of gender-based violence” and a “brutal practice” that “not only subjects victims to the immediate trauma of the violent act, but also often condemns them to suffer a lifetime of physical and psychological harms”, and Ryan Patrick, U.S. attorney for the Southern District of Texas, stated that when performed on a child it constitutes “child abuse” and that “The long-term damage, both physically and physiologically, is well documented.”

What is FGM? UNFPA’s Against My Will explained that:

• FGM may entail cutting off a girl’s clitoris and labia, suturing together what remains so that only a small aperture is left for urine and menstrual blood to escape ... . Complications can include haemorrhage, infection, sepsis and death. Depression and long-term loss of sexual pleasure and sometimes function are common. Other long-term consequences include infertility, pain, scarring, urinary issues, and poor obstetric and neonatal outcomes.

• FGM is a procedure with no health benefits, but immediate and long-term health consequences, ranging from infection to disabilities that last a lifetime ... . Some forms increase the risk of poor obstetric outcomes, perinatal mortality, caesarean section and post-partum bleeding ... . In terms of sexual health, studies show impaired sexual function in women who have undergone FGM.

Per the U.S. criminal code:

[FGM] means any procedure performed for non-medical reasons that involves partial or total removal of, or other injury to, the external female genitalia, and includes—

(1) a clitoridectomy or the partial or total removal of the clitoris or the prepuce or clitoral hood;

(2) excision or the partial or total removal (with or without excision of the clitoris) of the labia minora or the labia majora, or both;

(3) infibulation or the narrowing of the vaginal opening (with or without excision of the clitoris); or

(4) other procedures that are harmful to the external female genitalia, including pricking, incising, scraping, or cauterizing the genital area.

The criminal code defines the federal crime of FGM as performing, or facilitating the performance of, FGM on a minor. 18 U.S.C. § 116(a) provides that:

Except as provided in subsection (b) [regarding instances of medical necessity], whoever, in any circumstance described in subsection (d) [establishing a nexus to interstate commerce], knowingly—

(1) performs, attempts to perform, or conspires to perform [FGM] on another person who has not attained the age of 18 years;

(2) being the parent, guardian, or caretaker of a person who has not attained the age of 18 years facilitates or consents to the [FGM] of such person; or

(3) transports a person who has not attained the age of 18 years for the purpose of the performance of [FGM] on such person,

shall be fined under this title, imprisoned not more than 10 years, or both.

The criminal code is also quite clear that “It shall not be a defense to a prosecution ... that [FGM] is required as a matter of religion, custom, tradition, ritual, or standard practice.”

Prevalence Worldwide. The UN’s Division for the Advancement of Women’s in-depth study on all forms of violence against women reported that “It is estimated that more than 130 million girls and women alive today have undergone [FGM], mainly in Africa and some countries in the Middle East.” More recently, Against My Will reported that “FGM is concentrated in the African continent, from the Atlantic coast to the Horn of Africa, but is also prevalent in countries such as Iraq and Yemen, and in some Asian countries, such as Indonesia”, and that 98 percent of women and girls in Somalia are victims of the procedure, as are 95 percent in Guinea, 94 percent in Djibouti, 89 percent in Mali, 87 percent in Egypt and Sudan, 86 percent in Sierra Leone, 83 percent in Eritrea, 76 percent in Burkina Faso and in The Gambia, 67 percent in Mauritania, and 65 percent in Ethiopia.

Why is FGM Performed? UNFPA’s Against My Will explained that:

• FGM is grounded in beliefs that it improves fertility, enhances sexual pleasure for men, suppresses female sexuality, leads to better hygiene, prevents infidelity, complies with the demands of religious institutions or results in acceptance by the community ... . It is believed to uphold a girl’s purity, honour and cleanliness, and it is used to control women’s sexuality as a way to make girls and women more marriageable, conforming to social norms that have sustained the practice for centuries.

• [T]he practice reflects discriminatory and stereotypical beliefs about female sexuality — that women and girls must be protected from it and be put under the control of men. The United Nations Special Rapporteur on violence against women, its causes and consequences described the practice as the “result of the patriarchal power structures that legitimize the need to control women’s lives, arising from the stereotypical perception of women as the principal guardians of sexual morality, but with uncontrolled sexual urges”.

In 2014, Cynthia Helba, Matthew Bernstein, Mariel Leonard, and Erin Bauer wrote a research Report on Exploratory Study into Honor Violence Measurement Methods for DOJ similarly explaining that:

[FGM] ... is a modification of a woman’s genitalia for cultural or religious reasons ... . This mutilation is intended to maintain family honor by preserving the woman’s virginity until marriage and controlling the woman’s sexuality before and after marriage; the intended result is reduction of her libido in order to ensure that she will not be tempted to engage in premarital or extramarital sexual behavior.

Nadine Frederique, a former senior social science analyst at the National Institute of Justice and Beth Pearsall, managing editor of the NIJ Journal, have asked “Why is FGM[] still practiced around the world today?” They concluded that “The answers are complex and diverse, and are deeply embedded in each community’s customs and beliefs.” They went on to explain that:

FGM[] forms a critical part of the identity for women and girls in many cultures. In some communities, it signals coming of age and solidifies membership within the community. This rite of passage is supported by local authorities, including tribal or religious leaders, circumcisers, and even some medical personnel, and is often accompanied by celebrations, public recognitions, and gifts.

FGM[] is also commonly tied to marriageability. In many practicing communities, there is an expectation that men will marry only women who have had FGM[], and so women and girls are cut in order to be suitable for marriage ... . [A] proper marriage is often essential for economic and social security, as well as to fulfill local ideals of womanhood and femininity in many communities: “Girls may want the procedure themselves because of social pressure from their peers, and because of a fear of stigmatization and rejection if they do not follow the tradition.”

“When looking at FGM[], it’s critical that we understand cultural norms and expectations[.] We need to understand what a young girl is truly up against if she says, ‘I don’t want this done to me.’ The social pressures to conform, the fear of not being accepted by your community, the fear of being seen as unsuitable to marry — these are all very real.”

“And then there is this notion that helps perpetuate the practice: Mothers had this done to them, and so their daughters will have it done, and so on. The common belief is ‘This is what has been done, and we all have to do it,’”... . “The tradition is so ingrained within these communities.”

They also noted that “some groups use religion and religious duty to justify the procedure; however, no religious text actually requires cutting”.

FGM in the United States and the Role of Immigration. The UN’s Division for the Advancement of Women’s in-depth study on all forms of violence against women concluded that FGM is “prevalent among immigrant communities in Europe, North America and Australia”. Similarly, UNFPA’s Against My Will concluded that the spread of FGM to the West has been the result of immigration:

With record levels of migration in the past decade, this harmful practice is no longer restricted to countries in the global South ... .

FGM is also found ... in Australia, European Union, Japan, New Zealand, the United Kingdom and the United States ... . In England and Wales, as of 2015, an estimated 137,000 girls had undergone FGM ... . In Australia, an estimated 50,000 had been subjected to the practice as of 2017.

Howard Goldberg, Paul Stupp, Ekwutosi Okoroh, Ghenet Besera, David Goodman, and Isabella Danel, all with the Division of Reproductive Health of the U.S. Centers for Disease Control and Prevention’s (CDC) National Center for Chronic Disease Prevention and Health Promotion, concluded in Female Genital Mutilation/Cutting in the United States: Updated Estimates of Women and Girls at Risk that:

• No reliable sources of data exist on the number of U.S. resident women and girls who have undergone FGM[] either in the United States or in their country of origin, or on the number of women and girls who undergo the procedure in a given year.

• Our best estimate is that, in 2012, about 513,000 women and girls in the United States were at risk for FGM[] or its consequences ... . Compared with estimates from 1990, this estimate represents approximately a threefold increase in the overall number of women and girls at risk for FGM[] and a fourfold increase for girls younger than 18 years of age.

  Girls younger than 18 years of age now comprise about one-third of the total women and girls at risk for FGM[] or its consequences.

They found that:

• The estimated increase [in the number of women and girls in the U.S. at risk for FGM] was wholly a result of rapid growth in the number of immigrants from FGM[]-practicing countries living in the United States. [Emphasis added.]

• FGM[] is ... found in immigrant communities throughout the world, including communities in Europe and North America. The practice is deeply grounded in the culture of some ethnic groups and varies greatly across and within countries and regions.

• Some immigrants have attempted to sustain the practice in the United States by either trying to have their daughters cut locally or by returning to their countries of origin with their daughters for the purpose of having them cut (commonly known as “vacation cutting”).

In 2021, DOJ announced the first indictment for the transportation of a minor to another country for purposes of having FGM performed upon them: “Zahra Badri, 39, of Houston ... is charged in an indictment with knowingly transporting a minor from the United States in foreign commerce for the purpose of FGM.”

Honor Killings

Jackson Lee has introduced legislation in the past “denounc[ing] the barbaric practice[] of ... ‘honor’ killings” and Jerrold Nadler (D-N.Y.), the current ranking Democrat on the House Judiciary Committee, has introduced legislation in the past stating that “the perpetuation of honor killings ... is a deliberate violation of women’s human rights that should be universally condemned”. Nadler’s legislation additionally stated that:

[S]o-called “honor crimes” are acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonor upon the family[.]

[T]housands of women and girls around the world are stabbed, shot, beaten, burned, or maimed every year by male relatives, including husbands, fathers, and brothers.

Then UN High Commissioner for Human Rights Navi Pillay similarly stated in 2010 that “In the name of preserving family ‘honour,’ women and girls are shot, stoned, burned, buried alive, strangled, smothered and knifed to death with horrifying regularity.” And Rashida Manjoo, then the UN’s Special Rapporteur on violence against women and girls, its causes and consequences, submitted a report to the UN’s Human Rights Council in 2012 concluding that “Honour killings take many forms, including direct murder; stoning; women and young girls being forced to commit suicide after public denunciations of their behaviour; and women being disfigured by acid burns, leading to death.” She mentioned that “the Secretary-General [has] presented a series of recommendations in relation to the criminalization of [honor crimes], and noted that those deliberately participating in, facilitating, encouraging or threatening women and girls in the name of honour should be punished.”

What is the difference between honor killings and domestic violence? Helba, Bernstein, Leonard, and Bauer explained that:

Honor violence is a form of family violence in that it is committed by family members against other family members. However, unlike “traditional” family or domestic violence, honor violence has a conspiratorial and less impulsive quality, evidenced by the systematic surveillance of the victim, involvement of one or more family members, and, in some instances, the family engagement of bounty hunters or assassins to find and kill victims. Perpetrators of honor violence have a sense of honor rather than one of wrongdoing and feel that coercing, harming, or killing the victim is the only way to either prevent behavior that would bring dishonor to the family or restore the family’s damaged honor.

Why Are Honor Killings Carried Out? Nadler’s legislation stated that honor crimes are motivated by accusations that women have “dishonor[ed] their families by not abiding by tribal or religious traditions, being unfaithful, seeking a divorce, refusing an arranged marriage, or marrying according to their will”.

Pillay concluded that “The reasons for these murders vary.” She wrote that:

They may be committed because the victim is considered to have breached family or community norms with respect to sexual conduct, or simply because a woman has expressed a desire to pick a husband of her own choice, or wishes to divorce or claim inheritance. Most perversely, rape victims are sometimes viewed as having ‘dishonored’ their families and are killed by them as a means of erasing the stigma, while the men who raped them often escape lightly.

Manjoo concluded in her report that:

• [C]ertain cultural norms and beliefs are the causal factors of harmful practices resulting in violence against women, such as crimes committed in the name of “honour”... . Murder to cleanse family honour is committed with high levels of impunity in many parts of the world. Although honour crimes have mainly occurred in the vast zone spreading from the Sahara to the Himalayas, it also occurs in other regions and countries with migrant communities.

• Honour crimes ... are usually committed by male family members as a means of controlling women‘s sexual choices ... . Punishment usually has a collective dimension, with the family as a whole believing it to be injured by a woman‘s actual or perceived behaviour, and is often public in character. The visibility of the issue and the punishment also serves a social objective, namely, influencing the conduct of other women.

Helba, Bernstein, Leonard, and Bauer noted that one researcher “analyzed 172 incidents and 230 victims of honor killings [from 1989-2009] based primarily on information obtained from English-language media around the world”. The resulting findings included:

• Women constitute 93 percent of victims.

• Half of the victims are daughters and sisters of the perpetrator and a quarter are wives or girlfriends. The remaining victims are mothers, aunts, nieces, cousins, uncles, or nonrelatives.

• Two-thirds of honor killings are perpetrated by some type of family collaboration.

• 42 percent of honor killings involve multiple perpetrators.

• 43 percent of victims in Muslim countries were killed for [being “too westernized”].

• In North America, fathers were involved 100 percent of the time when the daughter victim was 18 years or younger.

• In Europe, 96 percent of honor killings were committed by Muslims.

National Public Radio has reported that “a 2009 survey from [UNFPA], 68 percent of young Iraqi men believed that killing a girl for dishonoring the family was justifiable.”

Helba, Bernstein, Leonard, and Bauer explained that “women who are victims of honor violence often do not recognize that they are victims of violence, but rather ‘they interpret their treatment as an intrinsic part of their culture’”.

Are honor killings a cultural or religious phenomenon? Jackson Lee’s legislation concluded that “human rights violations against women occur around the world ... and have been committed ... in the name of deities and fundamentalist religious zeal”. However, Helba, Bernstein, Leonard, and Bauer have concluded that “Although honor violence is most prevalent among people from Islamic regions of the Middle East, North Africa, and South Asia, honor crimes are not condoned by Islamic law.” Manjoo similarly noted that:

It is argued that in the United Kingdom of Great Britain and Northern Ireland crimes in the name of honour are rooted in cultural traditions, not religious beliefs ... . [T]he Special Rapporteur on extrajudicial, summary or arbitrary executions noted that “a number of renowned Islamic leaders and scholars have publicly condemned this practice and clarified that it has no religious basis.”

While this may be true, the Honour Based Violence Awareness Network explains that while “There is little scriptural support for honour killings in any major religion”, this “does not necessarily influence all members of a religion, who tend to view all aspects of their lifestyle and culture as being related to their faith, even where they stand in contravention of ‘official’ religion.”

Prevalence Worldwide. UNFPA estimated in The State of World Population 2000 that “As many as 5,000 women and girls are killed annually in so-called ‘honour’ killings, many of them for the ‘dishonour’ of having been raped.” The UN’s Division for the Advancement of Women’s in-depth study on all forms of violence against women noted that “A government report noted that ... honour killings ... claimed the lives of 4,000 men and women between 1998 and 2003 in Pakistan, and that the number of women killed was more than double the number of men.” Manjoo’s report concluded that “Honour killings remain underreported and underdocumented globally.”

Dr. Aisha Gill, senior lecturer in criminology, Roehampton University, London, has written that:

It is impossible to know the exact number of women killed, or determine how widespread HBV [Honor-Based Violence] is. This is compounded by the fact that reports to the police are rare and sporadic: both male and female family members typically try to cover up these crimes. Many victims of HBV are abducted: they disappear and are never reported missing ... . The few ‘honour’ killings reported in Europe to date have occurred in migrant communities, and have mainly involved Asian, Turkish, or Kurdish communities.

Honor Killings in the United States and the Role of Immigration. Abigail Esman wrote in 2011 in the Washington Times that:

[A] trial opened for Faleh Almaleki, an Iraqi immigrant accused of murdering his daughter, 20-year-old Noor, on Oct. 20, 2009. Mr. Almaleki, by his own family’s accounts, was upset by his daughter’s Westernization, furious that she had chosen to marry the man she loved and not the one her parents had selected, outraged that she dressed in blue jeans, wore makeup and lived not only in America, but as an American. Prosecutors say that is why he ran over her with his Jeep in a Peoria, Ariz., parking lot and then sped away, leaving his daughter fatally injured and the woman who was with her — the mother of her fiance — severely injured. Noor had dishonored the family. Her murder was what is commonly known as an “honor killing.”

Faleh Almaleki was later convicted of second-degree murder.

Aruna Papp reported in Culturally Driven Violence Against Women: A Growing Problem in Canada’s Immigrant Communities for the (Canadian) Frontier Centre for Public Policy that “In Canada, honour killings have been carried out for staying out late, wearing makeup, wearing Western clothes, wanting to leave an abusive husband, refusing an arranged marriage, dating, socializing with someone outside the community, etc.”

Helba, Bernstein, Leonard, and Bauer concluded that in the United States:

Many ... honor killings were connected to a forced marriage — that is, the female victim either resisted or outright refused the marriage (e.g., Sarah Said refused an arranged marriage and had a boyfriend when she was killed by her father, Yaser Said, in 2008); tried to escape from a forced marriage (e.g., Amina Ajmal, who fled Pakistan to avoid a forced marriage); and/or filed for divorce from a forced marriage (e.g., Sandeela Kanwal filed for divorce from an forced marriage and was strangled to death by her father, Chaudry Rashid, in 2008). In some cases, victims of honor violence were killed for other reasons, including being “too westernized” (e.g., in 2009, Noor Faleh Almaleki[]...) or “too Americanized” (e.g., in 2011, Jessica Mokdad was shot at point-blank range by her stepfather, because she was “too Americanized” and not following Islam).

They also concluded that:

• The population primarily at risk [is composed of] immigrants from countries or areas with a high incidence of honor violence (e.g., the Middle East, Africa, and South Asia).

• Honor violence in the United States and other western countries is concentrated among more recent immigrants of certain ethnic groups, including those from the Middle East, Southern Asia, and Africa.

• In North America, 91 percent of victims were murdered for being “too westernized”[.]

What are the future prospects for honor killings in the United States? The Honour Based Violence Awareness Network worries that:

While it may be the case that HBV decreases in minority populations over time as they become more integrated into the dominant society, it may also be the case that some communities become isolated and ghettoised, maintaining traditional male-dominant family structures as a form of resistance against the majority culture.

Consequences of Son Preference: Female Infanticide, Excess Female Deaths, and Sex-Selection Abortion

Jackson Lee’s legislation stated that “in many societies baby girls are denied food, drowned, suffocated, abandoned, or their spines are broken simply because they are born girls”. Therese Hesketh, Zhu Wei Xing, and Li Lu wrote in “The Consequences of Son Preference and Sex-Selective Abortion in China and other Asian Countries” in the Canadian Medical Association Journal in 2011 that “For centuries, son preference has led to postnatal discrimination against girls; this has resulted in practices ranging from infanticide to neglect of health care and nutrition, often ending in premature mortality,” and Ole Doring wrote in “What’s in a choice? Ethical, cultural and social dimensions of sex selection in China” in Human Ontogenetics (edited under the auspices of the Society of Human Ontogenetics) that “the high social value of having a boy, with its practical ... consequence of a biased attitude against females” results in “active selection and abortion or killing of females and the abandonment of care for female infants on the one hand plus increased care and attention for the boys.”

Piyali Somaia, Rana Islamiah Zahroh, and Meghan Bohren published “Where Are All the Missing Girls?” in Pursuit, the University of Melbourne’s research news website, concluding that:

One of the two main explanations for [“missing women”] is excess female mortality among girls and women ... through female infanticide, disregard of girls’ nutrition and healthcare needs, and high rates of women dying during childbirth.

But the other explanation, and one which is a growing problem, is gender-biased sex selection. In other words, female babies are being avoided or aborted in preference to males.

As Against My Will noted, “gender-biased sex selection” includes not only “the termination of a pregnancy when the fetus is determined to be female” but also through “pre-implantation sex determination and selection, or ‘sperm-sorting’ for in-vitro fertilization”.

Nandini Oomman and Bela Ganatra Oomman wrote in “Sex Selection: The Systematic Elimination of Girls” in Reproductive Health Matters that “Sex selective abortion ... is thought to be most prevalent in India, China, Taiwan and Korea.” They noted that “While the use of this technology may be more widespread in rapidly urbanizing areas, its use has also spread to rural areas.”

Why is gender-biased sex selection a growing manifestation of son preference? As Hesketh, Xing, and Lu explained, “in the 1980s, ultrasound technology started to become available for diagnostic purposes in many Asian countries, and the opportunity to use the new technology for sex selection was soon exploited”. Hesketh and Xing wrote in “Abnormal sex ratios in human populations: Causes and consequences” in the Proceedings of the National Academy of Sciences in 2006 that:

• Since the mid-1980s, female disadvantage in mortality has declined substantially, only to be replaced by a different type of disadvantage: sex-selective abortion. The combination of widespread access to noninvasive sex-selective technology (ultrasound) and the advent of the small-family culture happened to coincide in some Asian countries in the mid-1980s and has led to a greatly increased sex ratio at birth.

• When large family size is the norm and access to contraception is limited, son preference has little influence on sex ratio because couples continue bearing children, largely irrespective of the gender of the children. Female infanticide, abandonment of newborn girls, and neglect of daughters have been used in such societies to increase the male-to-female ratio in families ... . However, when fertility rates are low, by choice or coercion, female births must be prevented to allow for the desired number of sons within the family size norm.

Why Are Female Infanticide, Sex-Selection Abortion and Other Forms of Son Preference Practiced? Hesketh and Xing concluded that much of the cause is economic:

Son preference is most prevalent in an arc of countries from East Asia through South Asia to the Middle East and North Africa. Sons are preferred because (i) they have a higher wage-earning capacity, especially in agrarian economies; (ii) they continue the family line; and (iii) they are generally recipients of inheritance. Girls are often considered an economic burden because of the dowry system; after marriage they typically become members of the husband's family, ceasing to have responsibility for their parents in illness and old age.

They and Li Lu later noted that “there are also specific local reasons for son preference: in India, the expense of the dowry; and in South Korea and China, deep-rooted Confucian values and patriarchal family systems.”

The best explanation is mixture of culture and economics. Oomman and Ganatra wrote that “In strongly patriarchal societies, where the cultural and economic value of sons is at a premium, son preference manifests itself in many ways.” UNFPA’s Against My Will concluded that:

• By and large, gender-biased sex selection is motivated by negative gender stereotypes. The practice has emerged in countries with strongly patrilineal family structures ... combined with strong and persistent son preference and undervaluing of girls.

• Where sons are preferred over daughters, it is because males and their assumed gender roles are more valued in families, communities and societies than females ... . Girls, especially in South Asia, must ... be “married off”, requiring a costly dowry. As a result, families do not wish to be overburdened with girls and will engage in a range of practices to ensure that they have at least one son ... . [S]on preference can be found across socioeconomic levels.

• The birth of a girl ... can be ... seen as a burden, a liability, an impediment to a family’s future.

• [G]ender-biased sex selection ... is a malignant outcome of gender inequality.

Somaia, Zahroh, and Bohren concluded that:

• Gender-biased sex selection is a profound form of discrimination that results from the combination of three factors: strong preferences for sons within a society, the rising use of modern technologies, and generally declining fertility rates.

• A strong preference for sons is a consequence of patriarchal and ‘patrilineal’ societies that favour men in both power and status. It can be most pronounced in highly agricultural and subsistence societies.

• [D]eclining fertility rates, including China as a result of the previous one-child policy, and the other affected countries, are leading to smaller families. This increases the potential pressure on parents to take measures to ensure ‘at least’ one son is born.

Oomman and Ganatra concluded that:

• To be able to select on the grounds of such preferences encourages society to perpetuate its culturally constructed devaluation of particular human characteristics, in this case female sex.

• Some demographers and other public health researchers condone sex selective abortion by saying that it may actually reduce post-natal discrimination against girl children ... . [But all] these practices are symptomatic of the devaluation of women.

• Micro-studies have shown that women themselves accept and endorse sex selection. But ... . [t]he decision is often a response to intense pressure to produce male heirs, often through implicit threats of violence or husband’s remarriage.

  [A]re their “choices” free and volitional or a response to the pressures of a society that systematically discriminates against girls and women?

Prevalence Worldwide. UNFPA’s Against My Will estimated that in 2020 there were 142.6 million missing females in the world “due to the cumulative effect of postnatal and prenatal sex selection in the past”, including 72.3 million in the People’s Republic of China (PRC) and 45.8 million in India.

The UN Division for the Advancement of Women’s in-depth study on all forms of violence against women reported that:

Practices of son preference, expressed in manifestations such as female infanticide, prenatal sex selection and systematic neglect of girls, have resulted in adverse female-male sex ratios and high rates of female infant mortality in South and East Asia, North Africa, and the Middle East. A study in India estimated that prenatal sex selection and infanticide have accounted for half a million missing girls per year for the past two decades.

Excess Female Deaths. Against My Will reported that:

India has the highest rate of excess female deaths, 13.5 per 1,000 female births, which suggests that an estimated one in nine deaths of females below the age of 5 may be attributed to postnatal sex selection ... . [I]n Afghanistan, Bangladesh and Pakistan excess female mortality represents nearly 3 per cent of deaths of girls below the age of 5. Bahrain, Egypt, Iran and Jordan also experience excess female mortality, but in these countries, according to the researchers, gender-biased sex selection does not occur.

Excess female deaths around the world rose between the 1970s and 1990, when they peaked at about 2 million annually ... . The decline of excess female deaths that followed may be partly attributed to increased access to ultrasound imaging and other technologies, which in turn led to an increase in gender-biased sex selection.

Against My Will estimated that the proportion of death of girls under five attributable to neglect and other forms of postnatal sex selection was 11.7 percent in India, 5.9 percent in Bahrain, 5.6 percent in Egypt, 5.2 percent in Iran, 5.0 percent in Jordan, 3.5 percent in Nepal, 3.3 percent in the PRC, 2.7 percent in Afghanistan and Pakistan, and 2.6 percent in Bangladesh. It also estimated an average of 1.71 million “female deaths attributable to postnatal sex selection” annually from 2015-2020, including 620,000 in the PRC and 360,000 in India, and 1.5 million “female births prevented by gender-based (prenatal) sex selection” annually during that period, including 730,000 in the PRC and 590,000 in India.

Manjoo wrote in her report that:

There is no official statistical data available on female infanticide [in India], but in the state of Kerala, it is estimated that about 25,000 female newborns are killed every year ... .

Female infanticide in China goes back as far 2000 B.C. Girls were the main victims of infanticide, especially so in times of poverty and famine. A study suggested that the estimated number of missing girls in the twentieth century in China between 1900 and 2000 is 35.59 million, representing 4.65 per cent of its population.

Sex-Selection Abortions. The UN Division for the Advancement of Women’s in-depth study on all forms of violence against women reported that “in the Republic of Korea, among pregnancies having sex-identification tests, more than 90 per cent of pregnancies with male foetuses resulted in normal births, whereas more than 30 per cent of those with female foetuses were terminated.”

Manjoo has written that “It is estimated that one million selective female foetal abortions occur annually in India.”

Oomman and Ganatra reported that:

[I]n one large community based study in rural Maharashtra in India, one out of every six married women who had an abortion in the previous 18 months said the abortion had been subsequent to a sex determination test showing a female fetus ... . In a study in rural China, of 820 women surveyed, 36% of the 301 who reported induced abortions (109) acknowledged them to be female sex-selective abortions.

Sex Ratios. Hesketh, Lu, and Xing have explained that:

In countries where there is a combination of son preference, a small-family culture and easy access to sex-selective technologies, very serious and unprecedented sex-ratio imbalances have emerged ... . most notably China, South Korea and parts of India.

The sex ratio at birth (SRB) is defined as the number of boys born to every 100 girls, and is remarkably consistent in human populations at around 105 male births to every 100 female births. South Korea was the first country to report a very high SRB, because the widespread uptake of sex-selective technology [there] preceded that of other Asian countries. The SRB started to rise in South Korea in the mid-1980s, and by 1992 the SRB was reported to be as high as 125 in some cities.

China soon followed. Here, the situation is complicated by the one-child policy, which ... undoubtedly contributed to the steady increase in the reported SRB from 106 in 1979, to 111 in 1990, 117 in 2001 and 121 in 2005... . [T]he SRB is over 130 in a strip of provinces from Henan in the north to Hainan in the south, and it is close to normal in the large, sparsely populated provinces of Xinjiang, Inner Mongolia and Tibet. High reported SRBs can result from female infanticide and underregistration of female births. However, in China, there is now clear evidence that sex-selective abortion accounts for the overwhelming number of “missing women”.

In India there are also marked regional differences in SRB. Incompleteness of birth registration makes the SRB difficult to calculate accurately, but using the closely related ratio of boys to girls under the age of six years, it is found that there are distinct regional differences across the country. Several states in the north and west such as Punjab, Delhi and Gujarat have sex ratios as high as 125, but in the south and east, several states such as Kerala and Andhra Pradesh have sex ratios of around 105.

They further explained that:

A consistent pattern in [the PRC, India and South Korea] is the marked trend related to birth order and the influence of the sex of the preceding child. If the first child is a girl, couples will often use sex-selective abortion to ensure a boy in the second pregnancy, especially in areas where low fertility is the norm. A large study in India showed that for second births with one preceding girl the SRB is 132, and for third births with two previous girls it is 139, whereas sex ratios are normal where the previous child was a boy. In China this effect is even more dramatic, especially in areas where the rural population are allowed a second child only after the birth of a girl, as is the case in some central provinces. The SRB across the country for first-order births is 108, for second-order births it is 143 and for the (albeit rare) third-order births it is 157.

Hesketh and Xing noted that “Realization of the potentially disastrous effects of this distortion [in sex ration] has led many Asian governments, including those of India and China, to outlaw prenatal sex determination and sex-selective abortion, yet these techniques are still being carried out on a large scale, with virtual impunity.”

Sex-Selection Abortion in the U.S. and the Role of Immigration. Oomman and Ganatra concluded that “The Western world has large immigrant communities from countries with a strong cultural preference for sons. Immigration to a different culture does not necessarily change a community’s cultural norms; thus, clinics offering antenatal sex determination tests to South Asian emigrees are also flourishing in North America.”

The Guttmacher Institute, which describes itself as “a leading research and policy organization committed to advancing sexual and reproductive health and rights ... worldwide”, states however that “in the United States, there is limited and inconclusive evidence that immigrants from these areas — or anywhere else — are obtaining sex-selective abortions”. The Institute notably does not indicate that there is evidence that immigrants are not obtaining sex-selective abortions in the United States.

Dowry-Related Killings

Jackson Lee’s legislation “denounced the barbaric practice[] of ... dowry deaths”. Manjoo wrote that:

• In some South Asian countries, a widespread practice is that of dowry-related murders. This term covers the deaths of young brides who are murdered, or driven to suicide by continuous harassment and torture perpetrated by the groom‘s family in an effort to extort dowry payment or an increased dowry of cash or goods. The most common manifestation of this practice is the burning of the bride. These incidents are often presented as, and accepted to be, accidents, such as death as a result of an “exploding stove”.

  Dowry-related violence is embedded in religious and cultural traditions of the South Asian region. The practice has permeated all communities. Pakistan enacted an antidowry law in 1976, Bangladesh in 1980 and Nepal in 2009. Despite legislative reforms, dowry is an indispensable part of weddings in this region; it has been a cause of violence against women, and the laws have failed to have an impact in curbing dowry ... .

  In several cases in Bangladesh, dowry-related harassment of women has been aggravated to acid attacks, leading to blindness, disfigurement and death of women. In 2002, Bangladesh passed a law imposing the death penalty on offenders and also restricted the sale of acid, in response to the growing problem of acid attacks.

• Acid attacks are also becoming a growing phenomenon in India, with young women being targeted for spurning suitors and for rejecting proposals of marriage, as well as in connection with contestation over dowry.

Prevalence Worldwide. Gender-related killings of women and girls (femicide/feminicide), a report prepared by the Research and Trend Analysis Branch, United Nations Office on Drugs and Crime and the Ending Violence Against Women Section, United Nations Entity for Gender Equality and the Empowerment of Women, concluded that almost 8,000 women were murdered in India in 2021 because of dowry-related motives.

Manjoo reported that:

• Statistics for the period 2007 to 2009 show that there have been between 8,093 and 8,383 reported cases of dowry deaths in India ... . The National Crime Records Bureau of India reports that for 2008 there were 1,948 convictions, as against 3,876 acquittals.

• In the first half of 2009, 119 cases of dowry-related violence, including 78 deaths, were reported [in Bangladesh]. In 2008, 172 women were killed, and the figure for 2007 was 187.

Killings of Women Accused of Witchcraft

Manjoo wrote that:

• The killing of women accused of sorcery/witchcraft has been reported as a significant phenomenon in countries in Africa, Asia and the Pacific Islands. The pattern of violations includes violent murders, physical mutilation, displacement, kidnapping and disappearances of girls and women.

• In Papua New Guinea, cases of torture and murder of an estimated 500 women accused of practising sorcery/witchcraft have been reported. Sorcery allegations against women have been increasing.... Suspected witches have been thrown from cliffs, tortured, dragged behind cars, burned or buried alive. Victims of such attacks and killings are mainly widows or other vulnerable elderly women who do not have children or relatives to protect them, women born out of wedlock or women who do not have any standing in the family. According to police reports, women are six times more likely than men to be accused of sorcery.

• A study in Zimbabwe found that of the 42 cases of femicide involving women older than 50, most of the women had been accused of witchcraft by male relatives prior to the killing. A study conducted in Ghana found that many poor, often elderly, women were accused of witchcraft and subsequently murdered by male relatives, or subjected to a range of physical, sexual and economic abuses.

• Those who torture or kill are almost exclusively men, and are often related socially or biologically to the victim.

• Women accused of witchcraft in Ghana are often violently driven from their communities and forced to take refuge in “witch camps”.

Why Are Women Accused of Witchcraft and Killed? According to Manjoo:

• Some accusations of sorcery are economically motivated, for the purpose of taking over land or possessions of those accused, or because payments have been made by third parties to name alleged sorcerers. According to expert reports, “increasingly, there is a perception that accusations of sorcery are a convenient disguise for premeditated killings based more on a person‘s dislike for another, jealousy, envy, greed, rivalry or revenge[”].

• Although in the majority of the cases younger women are at higher risk of sorcery/witchcraft violence, a study has found that in some parts of Africa, older women are more vulnerable to sorcery-related femicide due to their economic dependence on others, or the property rights that they hold — and which younger members of the family want to inherit. Also, if women are perceived as dangerous and a threat to men, their labelling as witches, and consequently their destruction, is then seen as justified.

• In India, based on accusations of [witchcraft] physical violence is sometimes employed against Dalit [Untouchable caste] women as a mechanism to take possession of their family lands and/or to keep them under economic subjugation, sexual exploitation, gender domination and control. In Nepal ... elderly women, widows, destitute women and women of low caste are often targeted and deprived of their property rights or victimized to settle a personal vendetta.

Political Correctness Promotes Violence Against Women in the U.S. and Canada

Unfortunately, political correctness, obeisance to multiculturalism, and fears of accusations of racism have hobbled the fight against culturally and religiously based violence against women in American and Canadian immigrant communities.

As Abigail Esman has written:

[T]he liberal left ... maintains an almost conspiratorial silence [regarding honor killings]. Instead of investigating, reporters and editors in the liberal media turn their heads. They insist these events are incidents of “domestic abuse,” not “honor killings” or that there is no difference between the two. Above all, they resist ascribing religious underpinnings to these deaths even as women who manage to escape them — and often, the men and women who commit them — assert quite clearly, the cause is “my religion.”

Tess Lowery has written that “Black and South Asian feminists have warned against framing [“Honor-Based” Abuse] as a problem of religion or culture, because of the dangers of othering, essentializing, and racial stereotyping which can arise from so doing.”

This refusal to call out honor killings for what they are has in turn led to a refusal to demand that immigrant communities themselves take responsibility for ending this practice. Aruna Papp concluded that:

• [M]ost advocates and activists for female victims of abuse shy away from challenging the immigrant communities to examine their own traditions and cultural values in explaining the violence in their homes. The ideology of multiculturalism, even amongst the most well-meaning advocates ... tends to preclude any discussion of cultural values and traditions that project a “colonialist” mentality or that may lead to a perceived “racialization” of an entire ethnic community. The reasoning appears to be that to suggest violence against girls and women arises from specific cultural values implies some cultures are better than others where treatment of women is concerned ... . It is much safer to blame the abuse of women on the “global phenomenon” of women abuse or on settlement issues or on discrimination or racism in the host society while comfortably ignoring values that need to be challenged within the community.

• Community leaders point to cultural traditions, religious values and norms in defending their way of life. Thus, they consciously exploit multiculturalism-inspired fears amongst mainstream Canadians of appearing racist or of perpetuating cultural stereotypes.

Papp urged that “Canadians must face up to the reality of violence against women in immigrant communities and, just as importantly, the unique reasons for such violence”. She argued that there needed to be “a challenge to the leaders of those communities who too often remain silent — and even to the politicians who represent [them] — who effectively enable these horrible crimes against women in the name of family honour and shame.”

The Guttmacher Institute relies on political correctness to argue against banning sex-selective abortions, claiming that such bans would “place a burden on providers, who are forced to question each person’s reasons for seeking an abortion, and to second-guess and stigmatize Asian American patients and communities in particular”.

The Use of Ideological Exclusion to Curtail Culturally and Religiously Based Violence Against Women in the United States

Against My Will concluded that “At a minimum, States are obligated to ... implement prevention efforts to establish rights-based social and cultural norms.” In the United States, “social and cultural norms” that perpetuate violence against women in the form of “traditional practices” need to be replaced with “rights-based social and cultural norms”. These pernicious norms have largely been introduced by immigrants and passed down to their children. Therefore, preventing those who advocate, or even simply believe in, such norms from coming to the United States is likely one of the most effective methods available of halting the norms’ further introduction and spread here, in effect breaking the chain of transmission. Public messaging campaigns and enlisting the help of the immigrant communities themselves may also be attempted, though in these “politically correct” times, their political feasibility and ultimate effectiveness is an open question. Given the present scale of immigrant communities in the United States, the most effective method might be to institute deportation proceedings against those aliens who advocate or believe in such practices, though this might be considered extreme to some and (at least to the extent it involves lawful permanent residents) might face significant constitutional obstacles.

The Decline and Fall (and Rise) of Ideological Exclusion

Ideological exclusion has a long history in U.S. immigration law. I recommend that you read James R. Edwards, Jr.’s, excellent history.

In short, the Immigration and Nationality Act of 1952 provided that aliens were excludable from the U.S. who:

• practice polygamy or advocate the practice of polygamy;

• the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States; [and]

• are, or at any time have been members of any of the following classes:

  • anarchists;
  • [a]liens who advocate or teach, or ... are members of or affiliated with any organization that advocates or teaches, opposition to all organized government;
  • [a]liens who are members of or affiliated with (i) the Communist Party of the United States, (ii) any other totalitarian party of the United States ... (iv) the Communist or any other totalitarian party ... of any foreign state ... ;
  • [a]liens ... who advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship, or who are members of or affiliated with any organization that advocates the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship, either through its own utterances or through any written or printed publications issued or published by or with the permission or consent of or under the authority of such organization or paid for by the funds of, or funds furnished by, such organization;
  • [a]liens ... who ... are members of or affiliated with any organization during the time it is registered or required to be registered under section 7 of the Subversive Activities Control Act of 1950, unless such aliens establish that they did not have knowledge or reason to believe at the time they became members of or affiliated with such an organization (and did not thereafter and prior to the date upon which such organization was so registered or so required to be registered have such knowledge or reason to believe) that such organization was a Communist organization;
  • [a]liens who advocate or teach or who are members of or affiliated with any organization that advocates or teaches (i) the overthrow by force, violence, or other unconstitutional means of the Government of the United States or of all forms of law; or (ii) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character; or (iii) the unlawful damage, injury, or destruction of property; or (iv) sabotage;
  • [a]liens who write or publish, or cause to be written or published, or who knowingly circulate, distribute, print, or display, or knowingly cause to be circulated, distributed, printed, published, or displayed, or ... knowingly have in their possession for the purpose of circulation, publication, distribution, or display, any written or printed matter, advocating or teaching opposition to all organized government, or advocating or teaching (i) the overthrow by force, violence, or other unconstitutional means of the Government of the United States or of all forms of law; or (ii) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character; or (iii) the unlawful damage, injury, or destruction of property; or (iv) sabotage; or (v) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship; [and]
  • [a]liens who are members of or affiliated with any organization that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display, any written or printed matter of the character described in [the preceding bullet].

The 1952 Act was in large part based on a 1950 Senate Judiciary Committee report on The Immigration and Naturalization Systems of the United States (prepared at the Senate’s request) that found that:

[T]he protection of the public safety requires the exclusion from the United States of those aliens who bring with them their alien ideologies which are subversive to the national security and contrary to our constitutional form of government. Our immigration laws for some time past have contained provisions for excluding and deporting such undesirable aliens. Those provisions, however, need to be reviewed in the light of the increased threat to our national security from the infiltration of our population by aliens who would seek to overthrow our present form of government by force or violence, or by other unconstitutional means.

The erosion of the 1952 Act’s ideological exclusion regime began in 1977 with Sen. George McGovern’s (D-N.D.) amendment to the “Foreign Relations Authorization Act, Fiscal Year 1978” providing that:

[T]he Secretary of State should, within 30 days of receiving an application for a nonimmigrant visa by any alien who is excludible from the United States by reason of membership in or affiliation with a proscribed organization but who is otherwise admissible to the United States, recommend that the Attorney General grant the approval necessary for the issuance of a visa to such alien, unless the Secretary determines that the admission of such alien would be contrary to the security interests of the United States and so certifies to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate.

A decade later, the “Foreign Relations Authorization Act, Fiscal Years 1988 and 1989” completely did away with ideology as a grounds of exclusion to the extent that an alien’s “beliefs, statements, or associations ... if engaged in by a United States citizen ... would be protected under the Constitution of the United States”:

• Notwithstanding any other provision of law, no alien may be denied a visa or excluded from admission into the United States ... or subject to deportation because of any past, current, or expected beliefs, statements, or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution of the United States.

• Nothing in this section shall be construed as affecting the existing authority of the executive branch to deport, to deny issuance of a visa to, or to deny admission to the United States of, any alien ... for reasons of foreign policy or national security, except that such deportation or denial may not be based on past, current, or expected beliefs, statements, or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution of the United States.

It does not seem that this provision barred exclusion based on actual membership in a proscribed organization. In any event, the conference report (H.R. Rep. 100-475 (1987)) stated that:

The conference substitute ... makes it clear that it is not in the interests of the United States to establish one standard of ideology for citizens and another for foreigners who wish to visit the United States ... . [N]ational security or foreign policy exclusion or deportation would not be permitted if ... based on beliefs, statements, or associations which would be constitutionally protected if engaged in by U.S. citizens in the United States.

Yes, it was the view of the U.S. Congress at that time that there should not be “one standard of ideology for citizens and another for foreigners who wish to visit the United States” — quite an astounding statement. Did Congress really want those who believed in or advocated the overthrow of the U.S. government, the murder of government officials, or genocide or slavery for that matter, carte blanche to enter the United States? I am not sure that Congress really thought through the implications of the provision at the time, but was merely being carried along by the policy pendulum that was swinging away from “Red Scare” inspired measures of the 1950s and 1960s.

The conference report at least stated that:

[T]he conferees do not intend that this section be viewed as in any way affecting the existing authority of the President to deny admissions by proclamation or to deny entry to aliens when the United States is at war or during the existence of a national emergency proclaimed by the President.

This language was presumably referring to the Alien Enemies Act, which I have written about previously and which provides in part that:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

And it was also presumably referring to section 212(f) of the Immigration and Nationality Act (INA), which provides that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

In the Immigration Act of 1990, Congress permanently removed most ideological grounds of exclusion (now “inadmissibility”) but at the same time eliminated the McGovern and “Foreign Relations Authorization Act” provisions and retained or added grounds of exclusion for an alien who:

• “a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in ... any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means” (along with a similar ground of deportation);
• “is or has been a member of or affiliated with the Communist or any other totalitarian party ... domestic or foriegn” (with certain exceptions including for aliens participating in temporary (“nonimmigrant”) visa programs); and
• “whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States”, including in certain instances “because of the alien’s past, current, or expected beliefs, statements, or associations” even if “lawful within the United States” (along with a similar ground of deportation).

As can be seen, Congress in 1990 moderated at least some of the excesses of the not-long-before enacted “Foreign Relations Authorization Act”, at least for aliens seeking lawful permanent residence and for aliens whose entry would have serious adverse foreign policy consequences.

Following 9/11, the policy pendulum further accelerated in the direction of ideological exclusion. As I have written, Congress created the terrorism-related ideological grounds of inadmissibility and deportability in the “USA PATRIOT Act” of 2001 and the “REAL ID Act” of 2005. Currently, an alien is inadmissible and deportable who:

• “endorses or espouses terrorist activity”,
• Is a representative of a terrorist organization or a political, social, or other group that endorses or espouses terrorist activity, or
• Is a member of a terrorist organization (with certain exceptions).

As Sen. Tom Cotton (R-Ark.) has recently written to DHS Secretary Alejandro Mayorkas when urging him “to immediately deport any foreign national ... that has expressed support for Hamas and its murderous attacks on Israel”:

• [A]ny alien who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization” is inadmissible and must be deported.

• While American citizens may have a First Amendment right to speak disgusting vitriol if they so choose, no foreign national has a right to advocate for terrorism in the United States.

It has ceased to be the received wisdom in Congress that there should be “one standard of ideology” for citizens and foreigners alike.

Administrative Action

I have previously referred to the presidential proclamation power found at section 212(f) of the INA. A president could use such power to suspend the entry of aliens as immigrants or nonimmigrants who have advocated (or plan to advocate) for, or even simply believe in, culturally and religiously based violence against women.

The power of 212(f) is indeed extraordinary. In the Supreme Court’s 2018 decision in Trump v. Hawaii, the Court concluded in regards to President Trump’s September 24, 2017, proclamation entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”, pejoratively pegged as a “Muslim ban”, that:

• [President Trump] lawfully exercised [his] discretion [under §212(f)] based on his findings ... that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.

• [President Trump’s p]roclamation is squarely within the scope of Presidential authority under the INA.

• [T]he language of §[212](f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority.

The Court further concluded that:

• By its plain language, §[212](f) grants the President broad discretion to suspend the entry of aliens into the United States.

• §[212](f) exudes deference to the President in every clause ... . It is therefore unsurprising that we have previously observed that §[212](f) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA ... . ([citing Sale v. U.S., in which the Court found] it “perfectly clear” that President Reagan could “establish a naval blockade” to prevent illegal migrants from entering the United States).

• Th[e] premise [that the President must explain the finding of that entry would be detrimental to the interests of the United States with sufficient detail to enable judicial review] is questionable ... . But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of [President Trump’s] findings cannot be sustained. The 12-page Proclamation — which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions — is more detailed than any prior order ... under §[212](f). [In 1996] President Clinton ... explain[ed] in one sentence why suspending entry of members of the Sudanese government and armed forces “is in the foreign policy interests of the United States” ... [and in 1981] President Reagan ... explain[ed] in five sentences why measures to curtail “the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States” are “necessary”.

Importantly, the Court concluded that the availability of § 212(f) is not limited to “emergency” situations:

[N]o Congress that wanted to confer on the President only a residual authority to address emergency situations would ever use language of the sort in §[212](f). Fairly read, the provision vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA — including in response to circumstances that might affect the vetting system or other “interests of the United States.”

However, the Supreme Court in Hawaii did read one limitation into the provision, stating that “We may assume that §[212](f) does not allow the President to expressly override particular provisions of the INA,” and later that “Because plaintiffs do not point to any contradiction with another provision of the INA, the President has not exceeded his authority under” the section.

However, as I have previously discussed, what happens when aliens ignore such a proclamation and enter the U.S. anyway? Most would have the ability to apply for asylum using the same broken proceedings that are utterly failing the American people. Even Biden administration DHS Secretary Alejandro Mayorkas and Attorney General Merrick Garland admit that “most people processed for expedited removal ... will likely establish credible fear and remain in the United States for years before their asylum ... claim could be adjudicated, with the expectation of a lengthy stay ... regardless of the merit of an individual’s case, risk[ing] driving even more [illicit] migration”.

A way around this conundrum would be for DHS to use its statutory power to “by regulation establish additional limitations and conditions ... under which an alien shall be ineligible for asylum” by specifying that aliens are ineligible for asylum who advocate or believe in the sort of culturally and religiously based violence against women as I have discussed in this report, and by specifying that such aliens cannot establish a credible fear of persecution. However, there is a risk that a federal court would strike down such a regulation on the basis that the bar to asylum eligibility is not “consistent with” with INA’s asylum regime.

Legislative Action

Thus, to most effectively ensure that DHS can prevent aliens who advocate or believe in such violence against women from coming to the United States or remaining here if they have not been admitted, Congress should give serious consideration to making such advocacy and belief both a statutory ground of inadmissibility, a statutory bar to asylum eligibility, and a statutory bar to being found to have a credible fear of persecution. In addition, to enable DHS to remove admitted aliens, Congress should also give serious consideration to making such advocacy and belief a statutory ground of deportability. I will discuss the constitutional issues involved later in this report.

How Can Aliens Warranting Exclusion Be Identified?

Ask the Aliens. The U.S. government can simply ask aliens seeking visas or admission or to be beneficiaries of immigrant and nonimmigrant petitions as to their past and planned advocacy for, and belief in, culturally and religiously based categories of violence against women. The government already asks questions of this sort, though regarding different subject matter. For instance, the U.S. Citizenship and Immigration Services Form I-485 — Application to Register Permanent Residence or Adjust Status — requires applicants to answer as to:

Have you EVER ... [c]ommitted, threatened to commit, attempted to commit, conspired to commit, incited, endorsed, advocated, planned, or prepared any of the following: hijacking, sabotage, kidnapping, political assassination, or use of a weapon or explosive to harm another individual or cause substantial damage to property? [Emphasis added throughout.]

Have you EVER ordered, incited, called for, committed, assisted, helped with, or otherwise participated in any of the following ... [a]cts involving torture or genocide ... [k]illing any person ... [i]ntentionally and severely injuring any person ... [e]ngaging in any kind of sexual contact or relations with any person who did not consent or was unable to consent, or was being forced or threatened ... [l]imiting or denying any person’s ability to exercise religious beliefs ... recruited, enlisted, conscripted, or used any person under 15 years of age to serve in or help an armed force or group?

As CIS Executive Director Mark Krikorian has written, “Of course people could, and would, lie, but the very fact that such a question is asked would send a message about what we expect of people hoping to live among us.”

Lying would constitute a felony. It would also create a ground for subsequent deportation, for the INA provides that “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible” and also provides that “Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.”

Social Media. Because some aliens will lie, it would be incumbent on the government to utilize the vast trove of public information available on social media to identify those who have advocated for, or believe in, culturally and religiously based violence against women. DHS already extensively uses social media to gather information on aliens. Poltifact reported that “Federal officials already conduct background checks on [visa] applicants, including monitoring social media ... . Petra Molnar, a lawyer and anthropologist who studies the impacts of migration technologies on people crossing borders, said because this backgrounding technology is already in use, it would not be hard to expand.”

The Brennan Center for Justice reported a few months ago that:

[DHS] routinely uses fake social media accounts to collect information about people, according to over 3,000 pages of documents obtained through a Freedom of Information Act lawsuit filed by the Brennan Center... .

For years, we have raised concerns about DHS’s collection and use of social media data, which is used for purposes ranging from visa application screening to monitoring First Amendment-protected activity to automated (and unproven) programs that purport to predict whether travelers pose a risk of engaging in criminal or terrorist activity. Information about the scope of social media data collection and monitoring is sorely lacking ... .

The Brennan Center sued [DHS] in 2020 to force the release of relevant records ... . The documents we ultimately obtained paint a picture of a department focused heavily on enabling its agents to hide their identities while using platforms such as Facebook, Instagram, TikTok, and Twitter, despite the intrusiveness of the practice ... .

We obtained 35 Social Media Operational Use Templates, which are forms that DHS agencies submit to the department’s privacy office to obtain approval for proposed uses of social media. Of these, at least 14 allow officers to use accounts that do not “indicate an official DHS affiliation” or are not registered using a DHS email. Twelve of these explicitly permit the use of fake accounts, primarily by ICE and the U.S. Citizenship and Immigration Service’s Fraud Detection and National Security Directorate ... .

One template permits CBP personnel to undertake “masked monitoring,” which involves using a fake account to access information on social media for general research or “operational awareness.” According to a separate directive, there need only be a “nexus” to the employee’s assigned duties, a weak standard. Other details from this directive are redacted, and CBP’s Rules of Behavior, which officers must acknowledge before using social media, also do little to constrain officers’ online activities. It is unclear whether CBP has additional, more robust policies.

ICE also permits the use of fake accounts in four of the five templates it handed over, covering immigration and criminal law enforcement activities, internal investigations of employees, and undercover activities. As with CBP, it is unclear whether internal ICE guidance adequately constrains when and how its officers use these accounts.

The Brennan Center also stated that:

We did obtain a 2012 memo from the ICE director that appears to be the agency’s main policy on the use of online information for law enforcement purposes. The memo permits broad uses for online material, including invasive undercover techniques like appropriating individuals’ online identity without their consent, but it does not acknowledge the unique risks of online undercover activity or articulate online-specific policies, instead simply gesturing to policies governing offline activities.

The June 28, 2012, memo from ICE Director John Morton to ICE law enforcement personnel regarding “Use of Public and Non-Public Online Information” in part instructs that:

1. Obtaining Information from Unrestricted Sources. Law enforcement personnel may obtain information from publicly accessible online sources and facilities under the same conditions they may obtain information from other sources generally open to the public. This principle applies to publicly accessible sources located in foreign jurisdictions as well as those in the United States.

2. Obtaining Identifying Information about Users or Networks. There are widely available software tools for obtaining publicly available identifying information about a user or a host computer network. Law enforcement personnel may use such tools in their intended lawful manner under the same circumstances in which ICE guidelines and procedures permit them to look up similar identifying information (e.g., a telephone number) through non-electronic means. However, law enforcement personnel may not use software tools, even those generally available as standard operating system software, to circumvent restrictions placed on system users.

3. Real-Time Communications. Law enforcement personnel may passively observe and log real-time electronic communications open to the public under the same circumstances in which they may attend a public meeting.

4. Accessing Restricted Sources. Law enforcement personnel may not access restricted online sources or facilities absent legal authority permitting entry into private space.

...

6. Undercover Communications. Law enforcement personnel communicating online with witnesses, subjects, or victims must disclose their affiliation with law enforcement when ICE guidelines would require such disclosure if the communication were taking place in person or over the telephone. Law enforcement personnel may communicate online under a non-identifying name or fictitious identity if ICE guidelines and procedures would authorize such communications in the physical world.

Members of Congress have introduced legislation in the past that would require DHS to utilize social media to vet aliens. For example, then House Judiciary Committee Chairman Bob Goodlatte introduced legislation in 2015 proposing that DHS “shall, to the greatest extent practicable, and in a risk based manner, review open source information of visa applicants.” The legislation also proposed that:

(a) IN GENERAL.—Not later than 180 days after the date of the enactment of this section, the Secretary shall, to the greatest extent practicable, and in a risk based manner and on an individualized basis, review the social media accounts of certain visa applicants who are citizens of, or who reside in, high-risk countries, as determined by the Secretary based on the criteria described in subsection (b).

(b) HIGH-RISK CRITERIA DESCRIBED.—In determining whether a country is high-risk pursuant to subsection (a), the Secretary shall consider the following criteria:

1. The number of nationals of the country who were identified in United States Government databases related to the identities of known or suspected terrorists during the previous year.
2. The level of cooperation of the country with the counter-terrorism efforts of the United States.
3. Any other criteria the Secretary determines appropriate.

While the “high-risk” provision was directed at terrorism/national security concerns, DHS could also utilize (or be required by Congress to utilize) such a risk-based approach regarding culturally and religiously based violence against women.

Who in the Government Should Identify Aliens Warranting Exclusion?

James Edwards, Jr., has recommended that:

• [W]e should promote intelligence-gathering on aliens abroad and intense investigation by consular officers. The State Department should establish management policies that reward consular officers who ... identify visa applicants who are found to hold anti-American, anti-democratic, anti-Western, anti-Christian, or anti-Jewish views. All diplomatic personnel should be trained to look for such dangerous signs ... .

  The State Department's Visa Office should establish a section of specialists in the grounds of ineligibility. These experts would train consular officers and especially supervisors in how to apply [proposed ideological grounds of inadmissibility]. Department leadership should actively promote application of ineligibility and exclusion, and officers should be told that they are expected to use the law.

• [DHS] should create incentives and empower immigration inspectors at border crossings and ports of entry with broader discretion and powers to turn away aliens seeking entry, if an inspector believes the alien should be denied entry on ideological grounds. Supervisors should back up these judgment calls, and keeping out questionable aliens should be rewarded, not discouraged.

ICE’s Human Rights Violators and War Crimes Center (HRVWCC) would seem to be a perfect entity to conduct social media research and otherwise identify aliens warranting exclusion. ICE tells us that:

• In 2008, HSI created [HRVWCC]. Led by HSI, [it] leverages the knowledge and expertise of a select group of special agents, attorneys, intelligence analysts, criminal research specialists and historians. These experts work collaboratively to prevent the United States from becoming a safe haven for individuals who engage in the commission of war crimes, genocide, torture and other forms of serious human rights violations from conflicts around the globe. The HRVWCC is the only U.S. government entity focused entirely on investigating these global atrocities.

• The HRVWCC focuses on its mission in two ways: (1) by identifying, investigating, prosecuting, and removing human rights violators and war criminals found within the jurisdiction of the United States; and (2) by preventing entry into the United States of known or suspected human rights violators and war criminals. The HRVWCC also works with foreign law enforcement and international partners and tribunals to further global accountability. [Emphasis added throughout.]

• The HRVWCC is also home to HSI’s Human Rights Target Tracking Team (HRT3), which is comprised of criminal research specialists and intelligence analysts. These specialists are dedicated to identifying suspected human rights violators and war criminals abroad and to preventing their entry into the United States. The HRVWCC has worked closely with its CBP and DOS partners to identify known or suspected human rights violators and to place lookouts on them in appropriate databases. These records permit consular officers overseas, CBP officers at United States’ ports of entry, and USCIS officers adjudicating benefit applications with relevant information to assist them in determining whether an individual should be permitted to enter the United States.

• Since 2003, HSI has arrested more than 480 individuals for human rights-related violations under various criminal and/or immigration statutes. It has issued more than 78,000 lookouts for individuals suspected of involvement in human rights abuses and stopped over 350 human rights violators and war criminal suspects from entering the U.S.

Importantly, HRVWCC already has a “[FGM] ... investigative support team which works closely with federal, state, and foreign law enforcement partners, as well as child protective officials, non-profit organizations, medical and educational professionals, and ... survivors, to protect women and girls by investigating cases ... and conducting outreach and training to end the practice.”

What Are the Constitutional Obstacles?

As the late Barbara Jordan, congressional giant and civil rights heroine, stated as chairwoman of the U.S. Commission on Immigration Reform, “Immigration is not a right guaranteed by the U.S. Constitution to everyone and anyone in the world who wishes to come to the United States. It is a privilege granted by the people of the United States to those whom we choose to admit.” As the Supreme Court similarly concluded in 1950 in United States ex rel. Knauff v. Shaughnessy, “[A]n alien who seeks admission to this country may not do so under any claim of right. Admission of aliens ... is a privilege granted by the sovereign United States Government.” And as the Supreme Court reiterated in 1972 in Kleindienst v. Mandel, an “unadmitted and nonresident alien ... ha[s] no constitutional right of entry to this country as a nonimmigrant or otherwise.”

However, the Supreme Court in Mandel did hold that it had jurisdiction to review the denial of a Belgian journalist and self-described revolutionary Marxist’s application for a waiver of visa ineligibility when the constitutional rights of U.S. citizens were implicated — “whether the First Amendment confers upon [U.S. citizens] because they wish to hear, speak, and debate with [the journalist] in person, the ability ... to compel the Attorney General to allow [his] admission.”

The Court made clear that “Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry.” It first noted that:

The Court without exception has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. [INS] [1967] “Over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Oceanic Navigation Co. v. Stranahan [1909].

The Court then reasoned that:

In almost every instance of an alien excludable under [the then ground of inadmissibility for advocating world communism], there are probably those who would wish to meet and speak with him. ... Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever [such a] bona fide claim is made ... one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted the Executive becomes a nullity, or courts in each case would be required to weigh the strength of the audience's interest against that of the Government in refusing a waiver to the particular alien applicant, according to some as yet undetermined standard.

The Court’s resolution of the issue was as follows:

We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case. [Emphasis added.]

Federal courts have since expanded the holding in Mandel. For instance, in 1990, the 1st Circuit in Adams v. Baker expanded the limited judicial review required in Mandel to include review of the denial of a visa application where there was an alleged violation of a U.S. citizen’s First Amendment rights, as did the 2nd Circuit in 2009 in American Academy of Religion v. Napolitano.

American Academy of Religion provides an instructive overview of how the federal courts have applied Mandel’s “facially legitimate and bona fide” test:

[W]hat will render the Government's reason “facially legitimate and bona fide” ... and ... does the prohibition on “look[ing] behind” the decision mean that a reviewing court may not determine, after considering evidence, whether the facts support the Government's reason?

...

In Mandel, the Supreme Court provided no elaboration of “facially legitimate” or “bona fide.” The reason given for denial of a waiver was that Mandel had exceeded the bounds of his visa on a previous visit to the United States. ... The Court said only that with this statement of a reason, “the Attorney General validly exercised the plenary power that Congress delegated to the Executive.” ... It should be noted that, unlike a visa denial, where statutory provisions specify grounds for inadmissibility, no statute specifies any grounds for the discretionary decision to decline to waive inadmissibility. The “reason” relied on in Mandel was what the alien had done, i.e., exceeded the bounds of a prior visa.

The decisions entertaining First Amendment challenges to visa denials after Mandel have concerned statutory grounds of inadmissibility. In Bustamente [v. Mukasey] [2008] ... the visa was denied pursuant to [a ground of inadmissibility for] an alien whom the consular officer has reason to believe has trafficked in a controlled substance. ... The Ninth Circuit ruled that this was a facially legitimate reason because it was a statutory basis for inadmissibility. ... The Court also ruled that the requirement of a “bona fide” reason was satisfied by the absence of an allegation that the consular officer “did not in good faith believe the information he had.”

...

In Adams, the visa was denied pursuant to [a ground of inadmissibility for] aliens “who advocate or teach” various forms of terrorism. ... The consular officer determined that Adams fit within that category “because of his advocacy of, and personal involvement with, [Irish Republican Army] terrorist violence, including participation in bombings.” ... The First Circuit ruled that the statutory ground and the alien's conduct together provided the “facially legitimate and bona fide” reason for the visa denial.

In Abourezk[ v. Reagan [1986], the visas were denied pursuant to [a ground of inadmissibility for] aliens who “seek to enter ... to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety or security of the United States.” The State Department determined that the aliens fit within that category “because of their personal status as officials of governments or organizations which are hostile to the United States.” ... The D.C. Circuit appeared to assume that a statutory ground of inadmissibility and conduct by the visa applicant fitting within the statute would satisfy the Mandel standard, but remanded for reconsideration of whether the statutory ground had been properly construed.

American Academy of Religion also provides an instructive overview of the question of whether “a reviewing court need only satisfy itself that the conduct alleged fits within the statutory provisions relied upon as the reason for the visa denial, or may [it] determine if there is evidence that either supports the reason or at least supports the consular officer's reasonable belief that the reason exists”. The court concluded that:

Mandel appears to foreclose any inquiry as to supporting evidence by stating that courts will not “look behind” the decision of the Executive Branch. ... The absence of an explicit statement precluding an evidentiary inquiry as to the consular officer's decision appears to be due to the ... plaintiffs' concession that the Government was entitled to “conclude that [his] Marxist economic philosophy falls within the scope of” [the ground of inadmissibility].

The court of appeals' decisions entertaining First Amendment challenges to visa denials have varied as to the appropriateness of an evidentiary inquiry into whether the facts support the consular officer's reason. In Bustamante, the Ninth Circuit made no inquiry as to whether the facts supported the consular officer's conclusion that the visa applicant was a drug trafficker. Acknowledging that Bustamante denied drug trafficking ... the Court stated, “Under Mandel’s limited inquiry, the allegation that the Consulate was mistaken about [Bustamante's] involvement with drug trafficking ... fails to state a claim upon which relief could be granted.”

...

In Adams, the First Circuit made some examination of evidence proffered by the Government, but did so only for the limited purpose of determining whether the evidence was sufficient “to support a finding of ‘reasonable belief’” that the visa had been denied on a valid statutory ground. ... Although the District Court had made findings that the visa applicant made statements providing a facially legitimate basis for his exclusion, the First Circuit declined to review those findings, concluding only that “the State Department had competent evidence upon which it could reasonably find that Adams participated in terrorist activities.”

...

In Abourezk[], the D.C. Circuit's ruling explicitly concerned only the issues of statutory interpretation. ... [T]he Court of Appeals appears to have contemplated some examination of evidence underlying the reason for the visa denial. At the outset the Court stated that “questions of material fact remain.” ... Later the Court expressed concern about the District Court's reliance on “in camera ex parte evidence,” ... and cautioned the Court, in the proceedings on remand, “to make certain that plaintiffs are accorded access to the decisive evidence to the fullest extent possible, without jeopardizing legitimately raised national security interests.”

The court in American Academy of Religion concluded that:

• We think the identification of both a properly construed statute that provides a ground of exclusion and the consular officer's assurance that he or she “knows or has reason to believe” that the visa applicant has done something fitting within the proscribed category constitutes a facially legitimate reason. ... We also conclude, in agreement with the Ninth Circuit, that the absence of an allegation that the consular officer acted in bad faith satisfies the requirement that the reason is bona fide.

• We conclude that we have to take literally the statement in [Mandel] that courts may not “look behind” exclusion decisions, whether the decision is the Attorney General's exercise of discretion to waive inadmissibility or the consular officer's decision that a statutory ground of inadmissibility applies to the visa applicant, at least in the absence of a well supported allegation of bad faith, which would render the decision not bona fide.

Thus, while a U.S. citizen could challenge on First Amendment grounds a visa denial based on a violence against women-related ideological ground of inadmissibility, it seems clear that the challenge would fail as long as the consular officer in good faith knew or had reason to believe that the alien was in fact subject to the ground of inadmissibility.

What about the deportation of an already admitted alien? It is not necessarily unconstitutional for the federal government to deport an alien for activity that would constitute speech protected by the First Amendment had the alien been a citizen. As I have written:

• The Supreme Court has made clear that deportation does not equate to punishment.

• While the Supreme Court has circumscribed somewhat Congress’ plenary power over immigration over the years, this has only been the case regarding procedural due process rights, not substantive rights such as freedom of speech.

• The Supreme Court has found campaign finance restrictions on aliens to be constitutional even as it has found other restrictions to constitute violations of the First Amendment.

• The Supreme Court has rejected selective prosecution claims and allowed the federal government to single out illegal aliens for deportation based on their support of terrorism.

Removals based on violence against women-related ideological grounds of inadmissibility and deportability would not be terrorism/national-security related and therefore likely wouldn’t receive as high a level of deference by the Supreme Court. However, it is still accurate to state that the likelihood that the Court would uphold the constitutionality of a removal based on a violence against women-related ground of inadmissibility for an alien present in the United States who had entered illegally and thus never been admitted and on a similar ground of deportability for an alien who had been admitted is highest in the case of an illegal alien, relatively high in the case of an alien present pursuant to a nonimmigrant visa program, and lowest in the case of a lawful permanent resident. For a full discussion of the issues involved, see my report “Deport Foreign Students Who Celebrate Mass Murder: Should We? Can We?” .

Conclusion

As I have noted, in the United States, “social and cultural norms” that perpetuate violence against women in the form of “traditional practices” need to be replaced. As these pernicious norms have largely been introduced by immigrants and passed down to their children, excluding those who advocate, or believe in, such norms is likely one of the most effective methods available of halting the norms’ further introduction and spread in the United States. Public messaging campaigns and enlisting the help of the immigrant communities themselves may also be attempted, though their political feasibility and ultimate effectiveness is an open question given the widely subscribed to doctrine of multiculturalism. Given the present scale of our immigrant communities, the most effective method might be to institute deportation proceedings against admitted aliens who advocate such practices. However, this might be considered extreme by some and (at the very least to the extent it involves lawful permanent residents) might face constitutional obstacles.