In the week since Pres. Donald Trump issued his controversial executive order on immigration, the provisions restricting US entry by persons affiliated with 7 Muslim countries have received the most intense scrutiny and criticism.
However, according to Politico‘s The Agenda, immigration law specialists are becoming increasingly alarmed over a provision that could have implications for any foreign visitor to the U.S., “from tourists to diplomats.”
“The little-noticed section, appearing immediately after the travel ban, calls for the government to develop a ‘uniform screening standard and procedure’ for all individuals seeking to enter the United States,” said The Agenda’s Danny Vinik. “As written, it appears to require all visitors to go through the same vetting measures, regardless of where they come from or how long they intend to stay.”
Such excessive bureaucratic hurdles will deter recreational visitors to the country, said Stephen Legomsky — the former chief counsel for U.S. Citizenship and Immigration Services under Pres. Barack Obama.
“It would basically shut down tourism,” Legomsky told Politico.
The provision lies in section four of Trump’s executive order and orders federal officials to implement a “uniform screening standard and procedure” as part of the “adjudication process for immigration benefits.”
Vinik explained, “In immigration parlance, ‘immigration benefits’ refers to any permission granted a foreign visitor, from full-scale refugee resettlement to a passport stamp for tourists visiting Disneyland. That wording is about as broad as it can get, lawyers said, and if taken literally would include every single foreigner coming to the United States.”
Hundreds of U.S. diplomats issued statements and memos earlier this week protesting Trump’s executive order, which left travelers stranded and detained all over the world. U.S. Rep. Joaquin Castro said this week that Trump’s immigration order provides grounds for his impeachment in that it deprives people of their rights without due process.
“What they are talking about doing has scared the sh*t out of my members, about the lack of guidance and lack of clarity,” said American Immigration Lawyers Association head Ben Johnson to Politico.
The broadness of the wording virtually ensures that immigration agencies will be unable to fulfill the executive order to the letter, Vinik said, and many immigration attorneys are at a loss as to how to approach challenges to a policy that has no specifics yet.
“Good Lord,” said Texas immigration attorney Kathleen Campbell Walker. “I’ve been doing this for 31 years and I’m trying to figure out what this means.”
Republicans and Democrats told Vinik that the policy will be virtually impossible to enforce with the resources currently available to immigration officials. The Trump administration will either have to make dramatic funding allocations or admit far fewer international travelers to the U.S. per year.
“They just can’t physically do it. It really can’t happen,” said Legomsky. “Other countries would reciprocate some of our constraints on U.S. citizens seeking to travel,” causing bureaucratic messes and potential consequences for travelers all over the world.
“They’ll find out that there aren’t enough resources to go around and the nation still needs the wheels to turn and people to come here. It’ll be a painful process of realization,” said former Immigration and Customs chief counsel under George W. Bush.
It is absolutely unclear what a “uniform screening standard and procedure” would look like. Vinik said that it could potentially include “an in-person interview, detailed documentation, medical histories and biometric testing such as fingerprints, among other information.”
Currently, entrants to the U.S. are handled on risk-based criteria — the greater potential security threat they pose, the more intense screening they receive. Visitors from 38 allied nations don’t need visas at all to enter the country.
“Requiring those travelers to undergo the same vetting procedures as a refugee would create an enormous strain on foreign consulates and U.S. immigration authorities, effectively imposing tight new limits on how many people can visit the U.S. each year,” Vinik said.
Legomsky said he’s not sure if the the administration is incompetent or honestly wants to block all foreign travelers from entering the country.
“It’s hard for me to imagine a screening procedure that is rigorous enough for people who are coming here permanently that, with present resources, we could come even close to using for the 50 million tourists entering our territory,” he said. “Either the language is hopelessly incompetent or they really do mean that there has to be one uniform screening standard that would be unworkable in practice.”
Vinik wrote, “Trump advisors Steve Bannon and Stephen Miller, two of the leading authors of the executive order, have shown interest in not just reducing the number of undocumented immigrants in the U.S. but reducing the flow of legal immigrants as well. The travel ban, controversial as it is, does not go far towards accomplishing that goal, since it is largely restricted to seven countries that send relatively few people to America. But a broader tightening of the vetting process could be far more effective, gumming up the entire system and slowing the flow of all arrivals.”