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July 17, 2018

Eps. 24, 25: 'Taking the Fifth,' 'Justice Kennedy'

By Elizabeth Joh

Anthony M. Kennedy's announcement in late June that he was retiring from the U.S. Supreme Court merited a special edition of the podcast "What Trump Can Teach Us About Con Law." Episode 25, "Justice Kennedy," is devoted to Kennedy, the mostly conservative justice who delivered swing votes in key decisions on abortion, LGBTQ rights and affirmative action.

The special episode followed closely on the heels of episode 24, "Taking the Fifth." President Trump says it makes people look guilty. Yet he and people associated with him have done it. This episode traces the practice of pleading the Fifth back to the Cold War and the Hollywood Ten, who probably should have invoked the Fifth instead of the First Amendment.

July 11, 2018

The travel ban in numbers: Why families and refugees lose big

By Raquel Aldana

[Cross-posted from The Conversation]

On June 16, the U.S. Supreme Court lifted the 9th Circuit’s nationwide injunction against the third version of President Donald Trump’s travel ban. This ruling marks Trump’s first court victory since he issued the original travel ban back in January 2017.

Thousands now face indefinite separation from family members from the affected countries. Thousands more will be denied safe harbor from persecution.

Trump asserts the travel ban is necessary to protect national security. This claim is contested by many, including 26 retired generals and admirals, who filed an amicus brief urging the U.S. Supreme Court to invalidate the travel ban.

As a researcher who studies the effect of U.S. immigration laws and policies on human rights, I consider it important to explain the significant numeric scale of the ban’s impact on refugees and U.S. families.

Refugees and family members are not the only categories of foreign nationals from the enumerated countries in the travel ban who will be denied entry. Students, tourists, business travelers and workers will also be turned back. But refugees and family members raise the most compelling human rights and humanitarian reasons for people to care.

Travel restrictions vary by country. The least restrictive measures apply to Venezuela. Only certain government officials and their immediate family members are indefinitely suspended from travel on short-term business or tourism. The effect of these unusual restrictions are likely to be minuscule and will not impact family unification or refugee admissions. For this reason, I didn’t include Venezuela’s numbers in my analysis.

All other nations are subject to indefinite bans on travel for permanent immigration to the U.S. This ban applies to immigrants who want to unite with family in the U.S. and refugees. Each nation also faces different travel restrictions for temporary immigration. The most restrictive travel restrictions apply to North Korea and Syria. All temporary immigration from these countries is suspended indefinitely. For Libya and Yemen, only temporary travelers for business and tourism are suspended indefinitely. For Iran, all temporary immigration is suspended except students and exchange visitors. Finally, for Somalia, all temporary migration is not suspended but subjected to additional scrutiny.

The travel ban does allow case-by-case exemptions for certain people if admission is found to be in the national interest. This includes lawful permanent residents, asylum-seekers, refugees and students, among others. In his dissent, however, Justice Stephen Breyer attempted to document how many waivers to the travel ban had been granted, concluding that the government applied the waiver in such a tiny percentage of eligible visas as to render it meaningless.

The measurable impact on family immigration

Family immigration to the U.S. from any single nation is determined by two factors. First, the demand for such visas from existing family members already in the U.S. who can sponsor certain family members. Second, for those visas that are numerically restricted, the availability of those visas to that nation in a given year.

In general, a nation’s patterns of family immigration tend to remain fairly steady over the years. So it’s possible to estimate, based on recent data from the seven (excluding Venezuela) travel ban nations, approximately how many immigrants seeking to unite with their families will be banned indefinitely from entry into the U.S.

During each of the last three years for which detailed profiles are publicly available – 2014 through 2016 – Iran, Libya, North Korea, Somalia, Syria and Yemen sent between 8,000 and over 15,000 parents and children of U.S. citizens.

These same nations also sent between 3,000 and over 7,000 other eligible family members, such as siblings of U.S. citizens and spouses of lawful permanent residents.

Combined, in just three years, more than 35,000 family members from these nations came to unite with their families in the U.S. Among these nations, Iran and Yemen sent the most, followed by Syria and Somalia.

The travel ban also significantly affects family members’ ability to even visit each other in the U.S. Even when the ban was stalled by the courts, the overall number of nonimmigrants, or temporary migrants, from these nations significantly decreased.

Iran, for example, has sent by far the largest share of nonimmigrants of any of the travel ban countries in the last decade. In 2016, nearly 30,000 nonimmigrants came to the U.S. from Iran. In 2017, fewer than 20,000 came.

What this means for refugees

According to United Nations, the travel ban affects nations in significant humanitarian crises with substantial flows of refugees.

Syrians are the most affected. This group represents a total 5.5 million refugees, the largest share by far of the world’s overall 25.4 million refugees. But Iran and Somalia each also have nearly 1 million refugees, while Yemen has nearly 300,000 and Libya nearly 100,000. Four of these nations – Iran, Somalia, Syria and Yemen – face protracted refugee crises. Only North Korea reports a low figure of 2,245, although this likely reflects North Koreans’ fear of escaping or reporting their presence when they do.

A high supply of refugees doesn’t necessarily translate to high numbers of refugees admitted into the U.S. Still, over the past decade, the U.S. has consistently offered refugee protection to Iran and Somalia. The peak for both these nations was in 2016, when the U.S. admitted more than 9,000 refugees for each nation.

Since 2015, Syrians also began to receive refugee protection in substantial numbers, with 2016 also being the highest number of 12,587 refugees admitted.

President Trump has reduced the levels of refugee flows into the U.S. to historic lows. This will affect all refugees. Venezuela, for example, which today reports 1.5 million refugees, is unlikely to find safe harbor for most of its refugees in this current climate.

Not unlike family immigration, the indefinite ban on temporary visas will affect the ability of nationals from all of these nations to travel to the U.S. to seek asylum.

The U.S Supreme Court’s ruling forecloses judicial oversight over much of President Trump’s immigration policies, at least those affecting the entry of foreign nationals. This includes those facing high stakes at the border: family separation or lack of safe harbor from persecution. For now, the nations included in the travel ban face an indefinite iron locked door, with no hope that their knocking will be answered.