Biden Rescinds So-Called "Muslim Ban"

Review would have made sense, but outright repeal is likely an error

By Andrew R. Arthur on January 20, 2021

President Biden has repealed the so-called "Muslim Bans", Trump travel restrictions contained in two separate White House documents: Presidential Proclamation (PP) 9645, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats"; and the subsequent PP 9983, "Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats". While review of those proclamations may have been called for, outright repeal is likely in error.

Note that the links to those documents above comes from the Federal Register, as they have already been removed from the White House website – that is how precipitously Biden has acted. Fortunately, the Department of State has archived their implementation on its website, which I have saved as a PDF in case that goes down the memory hole, as well.

Certain nationals of 13 countries (Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen) were designated under the two PPs for various and varied visa restrictions.

It goes without saying that immigration can be a complex and impactful issue. And, like any complex and impactful issue, it is subject to demagoguery.

I would not necessarily say that is completely true of the two PPs, but their designation as "Muslim bans" is plainly in error, because – as the Supreme Court noted in connection with PP 9645 – it made no reference to religion, "covers just 8% of the world's Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks."

The breadth of PP 9983 was slightly broader, but the Supreme Court's assessment is no less apt.

I would further note that with the exception of North Korea (which has few if any Muslims, and no religious freedom for that matter) and war-torn Syria, there were no outright bans on the entry of designated nationals in all visa categories under either of the PPs. And generally, even in those cases, the bars were subject to waivers (which were automatic) and exceptions.

PP 9645 resulted from a directive by the White House to executive-branch departments to determine "what[] additional information would be needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat."

As I explained in congressional testimony in September 2019, the resulting report established a "baseline" for the types of information that were required to determine whether a foreign national from any nation (not just those that ended up designated) should be allowed into this country.

A review of the visa-issuance process is key to understanding the reasons for the directive, and the resulting baseline of required information.

Visa determinations are made as a preliminary matter by a consular officer abroad. Foreign nationals apply for visas by completing an application, including a photograph and fingerprints. The officer must then make a determination whether to grant it. There are any number of considerations in the visa-approval process, but any danger that alien would pose to the national security is a key one.

As part of the visa-issuance process, consular officers check the information provided by the applicant against the biometric and biographic Consular Consolidated Database (CCD), which links to other databases containing criminal, immigration, and intelligence information. Here is where the baseline for information referred to in PP 9645 comes in.

Those databases are only as good as the information that the consular officer uses to conduct the checks, and the intelligence that the United States government has on the individual applicant. Where the biographic information (and supporting documents) are bogus, for example, even if the CCD has information about the applicant but not about the applicant's assumed identity, the system will return no derogatory information.

In addition, the United States government is often dependent on the applicant's home government to provide or verify criminal and security information about the applicant, as you can well imagine. But, we do not have direct access to, say, Iran's criminal records.

And in certain countries – particularly those that have been subject to years-long conflict, or where recordkeeping is not robust (or non-existent) – verifying the identity of a visa applicant can be difficult or impossible. This is also true in countries that are openly hostile to the United States, and particularly so where those countries want to send their agents to this country to do harm.

To put these abstract concepts into real-world circumstances, consider the testimony of former FBI Director James Comey (no fan of Trump's) in connection with the screening of Syrian refugees on October 21, 2015:

We can only query against that which we have collected. And so if someone has not made a ripple in the pond in Syria on a way that would get their identity or their interests reflected in our databases, we can query our databases until the cows come home but nothing will show up because we have no record of that person. . . . You can only query what you have collected.

Which leads me back to the baseline for information in PP 9645. It consisted of three categories of information relevant to the ability of U.S. officials "to confirm the identity of individuals seeking entry . . . and . . . assess whether they are a security or public-safety threat."

The first category was "identity-management information", which "focuses on the integrity of documents required for travel to the United States" – that is the travel documents (usually passports) presented by foreign nationals to gain entry into the United States. The basic purpose of such information is to determine whether applicants for visas are who they claim to be.

The second category was "national security and public-safety information". Its focus was on the country in question, and in particular on whether that country provides criminal and terrorist information to the United States about individuals seeking entry upon U.S. government request, and whether it provides exemplars of travel documents (in order to tell good ones from fake ones).

The third category is "national security and public-safety risk assessment". This category is broader, and focuses on "whether the country is a known or potential terrorist safe haven" and whether it accepts its returned nationals.

Simply put, if terrorist movements are active in a country, or if that country actively provides haven to terrorists, members of those movements may seek to enter the United States to engage in terrorist activity. This category addressed that possibility, as well as DHS's ability to remove aliens who were later found to pose a risk.

The countries designated in the two PPs were found deficient with respect to one or more of these three categories. You can read the PPs to see the specific reasons that each nation was so designated.

As the former Acting Chief of the INS National Security Law Division and Staff Director of the House Homeland Committee's National Security Subcommittee, I can state unequivocally that the baseline in PP 9645 was simple common sense that makes the United States safer from foreign threats. I doubt, however, that you would need such experience to make the same assessment.

It should be further noted that the Trump White House was not writing on a blank slate. Concerns about terrorist attacks in Europe prompted Congress to pass the "Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015". That act, signed by President Obama, barred nationals of Iran, Iraq, Sudan, and Syria, as well as individuals who had travelled to those countries or to Libya, Somalia, or Yemen, from accessing the Visa Waiver Program (VWP).

Why? Because of the danger that terrorists so designated would exploit the VWP to harm the United States. That is what the Supreme Court was referencing in the quote above when it talks about "countries that were previously designated by Congress or prior administrations as posing national security risks".

I could understand that the Biden administration might want to respond to specific complaints about the waiver process under the two PPs, or would want to do its own assessment of every country's circumstances – and in particular the 13 designated – under the baseline.

I do not understand, however and for example, why it would want lift the restriction on nonimmigrant visitor visas for officials of the Venezuelan "Bolivarian Intelligence Service . . . and their immediate family members". Or restrictions on North Korean nationals, whose leader, Kim Jong Un, this month referred to the United States his "biggest enemy".

The initial roll-out of restrictions, in Executive Order (EO) 13769, was poorly thought out and implemented, and while its substitute, EO 13780, was better, it was not perfect. But, PP 9645 survived rigorous Supreme Court review. Likely due to those two EOs (and Trump's rhetoric), passions on – and misunderstandings of – that PP ran high, however, as the hearing at which I testified on it demonstrates, likely guiding the Biden administration in its decision.

What's done is done. What comes next, however, remains to be seen. I fervently hope that the national security will not be impacted. But I cannot guarantee it.