Statements

Official Statement: UKEC/KPUM Joint statement on Trump’s Executive Order on Immigration

As the matters discussed may be complex, before reading further, do familiarise yourself with the exact wording of the Order as issued by United States of America President Donald J. Trump as we will be referring to it in this statement, by clicking here. (The link provided is to the annotated version by the NPR)
We, as members of the Executive Committee of the United Kingdom & Eire Malaysian Law Students Union (KPUM) by virtue of the mandate granted to us, would like to represent the members of our Union in issuing a joint statement alongside the United Kingdom & Eire Council of Malaysian Students (UKEC) to voice our disagreement with the recent Executive Order titled “PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES” issued by President Trump on the 27th of January 2017. Our reasons for doing so are set out below (if you are familiar with the issue we suggest skipping to the next section).

Brief recap of Recent Events

An Executive Order is a rule or order issued by the president to an executive branch of the government and having the force of law. [1] President Trump, in a brief summary, has done the following actions through his Order [2] (note that this is not an exhaustive list and you are still advised to read the full order to obtain an unbiased perception):
  1. Suspend the entry of immigrants or non-immigrants without diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas (note that these are forms of diplomatic visa) from Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen for a period of 90 days with a possibility of such suspension being waived on a case-by-case basis. The order leaves open the possibility of more countries being suspended. [3]
  2. Suspend the U.S. Refugee Admissions Program (USRAP) for 120 days for review and to consider additional procedures to add to the pre-existing system. [4]
  3. Suspend the entry of nationals of Syria from the refugee program until it has been determined that the new screening procedures are sufficient to ensure that admission of Syrian refugees is consistent with national interest. [5]
  4. Prioritise refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. [6]
  5. Proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as the President determines that additional admissions would be in the national interest. [7]
During the commencement of the Executive Order on Saturday, amongst the issues that were not addressed in the Order or caused some uncertainty [8] in its implementation was regarding:
  1. The status of Legal Permanent Residents with Green Cards.
  2. Dual Passport holders with one passport from the listed countries and another from a non-listed country.
The confusion and lack of clarity as well as several contradictory statements issued [9] have been a cause of concern affecting those that are travelling to the United States with reported efforts by officials to halt Legal Permanent Residents from entering the country [10].
The White House has since issued updated guidance on President Donald Trump’s executive order, clarifying that Legal Permanent Residents, or green card holders, do not require a waiver to enter the United States [11]. Dual passport holders that hold a passport from one of the 7 listed countries but is also in possession of a passport from another country such as the United Kingdom is also allowed entry into the United States [12].
The removal of Attorney General, Sally Yates after she announced that Justice Department lawyers would not defend Mr. Trump’s order against legal challenges has further complicated matters (read the AG’s full letter here). [13]
President Trump’s response [14] over concern regarding the Executive Order is as below, attempting to draw comparison with Obama’s actions in 2011:
On January 28, US District judge, Ann Donnelly granted an emergency stay of proceedings which ordered a restrain “from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.” [15] (read the full transcript here)
While Ann Donelly’s ruling applied only to valid visa holders and was followed by other subsequent judicial rulings, the most important one was on Friday night (3rd Feb 2017), whenUS District Judge James Robart issued a temporary restraining order against the Trump administration’s restriction, ruling that the ban would be stopped immediately nationwide. [16]
It was reported that within hours of ruling, “US Customs and Border Protection officials told American airlines on a conference call to begin allowing previously barred passengers on US-bound flights.”
The Department of Justice filed for an emergency halt of the judge’s order, but the Appeals Court has denied granting such a stay and ordering until Monday afternoon for Trump’s administration to present and file more arguments. [17]

The Reasons For Our Stand

Illegal

We note that the President has a wide discretion on matters relating to immigration as granted by section 212(f) of the Immigration and Nationality Act 1965, the pertinent part of which reads as follows:

(f) 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.

However, this discretion is subject to 8 U.S. Code 1152 amendment of the Immigration and Nationality Act 1965 in cases involving an immigrant visa (non-refugees), which states the following:

…no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

It is clear that the Executive Order by Trump goes against the wording of this provision as the suspension of entry of immigrants from Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen is based on nationality, place of birth or place of residence.
Arguments that the suspension was not based on these ground but rather on reasons of “determining individuals with terrorist ties and stopping them from entering the United States” [18] is not a strong argument as the Executive Order does not include any countries from which radicalized Muslims have actually killed Americans in the U.S. since Sept. 11, 2001 and oddly, does not apply to the nationalities of those who carried out the 9/11 attacks, such as Saudi Arabia, the United Arab Emirates and Egypt [19]. A complete suspension of all immigrants or non-immigrants from those countries is also not proportionate to any such aim.
Unconstitutional
There is also a high chance that the Executive Order might be found to go against the Establishment Clause of the First Amendment to the United States Constitution (in cases involving both immigrants or refugees) by explicitly disapproving of one religion and implicitly preferring others (emphasis added), therefore also going against the separation of the church and the state [20].
The First Amendment to the US Constitution states the following:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for redress of grievances.”

As mentioned by the American Civil Liberties Union, “while the Establishment Clause — like the rest of the First Amendment — is stated as a proscription on congressional action, it applies to executive branch action as well. Cf. Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1140 (10th Cir. 2006)(holding the Free Exercise Clause applicable because “the First Amendment applies to exercises of executive authority no less than it does to the passage of legislation”).” [21]
Though the Establishment Clause law is often murky as noted in Van Orden v Perry, one clear point is that the government can’t favor one religious denomination over another as seen in Larson v Valante. [22]
While President Trump may seek to argue that the suspension was not based on religious reasons, there is much evidence to suggest otherwise. One problem with Trump’s argument is that the Executive Order seems to prioritise the admission of Christian refugees. This is because it is stated that priority would be given to those of “a minority religion in the individual’s country” once the 120-day ban on all refugees expires. Such wording directly concerns the 7 Muslim countries and as the minority religion in such countries would mostly be Christianity, the Executive Order would likely disproportionately help Christian refugees in such countries.
Supporters can rightly argue this “minority religion” language is neutral but President Trump has gone on the record stating to the Christian Broadcasting Network that Christians would receive preferential treatment. [23] He has also stated during his Presidential Campaign in 2015 that, “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our countries’ representatives figure out what the hell is going on.” [24] Rudy Giuliani, a former Trump campaign surrogate also told FOX News that Trump first called it a “Muslim ban” but asked him to assemble a commission to show him “the right way to do it legally.” [25]
Furthermore, President Trump’s claim below is is wholly false and misleading.

”My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months. The seven countries named in the Executive Order are the same countries previously identified by the Obama administration as sources of terror”
-Donald J Trump

For a start, Obama did not ban visas for refugees from Iraq for six months as Trump had stated. Refugees do not travel on visas and new Iraqi refugees were continuously admitted throughout the year, albeit at a much slower pace than usual. [26] The Obama administration reexamined 58,000 Iraqi refugees who had already been admitted to the US, according to a 2012 congressional hearing and dramatically slowed the processing of refugee requests and “Special Immigrant Visas,” meant for Iraqi interpreters who helped US forces, while it expanded its screening procedures. [27]
The reason for Obama’s 2011 policy was a reactive one, responding to a specific threat: the two Iraqi refugees who had managed to resettle in Kentucky [28] while Trump’s order appears proactive, preempting a potential attack. The 2011 policy also targeted only a narrow group of individuals: refugees and Special Immigrant Visa applicants from Iraq. In contrast, Trump’s order casts a wide net, excluding millions of people across seven countries from nearly every type of available visa.
Also as pointed out by Stefanie Fisher, a Boston-based immigration attorney at Araujo & Fisher LLC, “Obama’s policy tended to prioritize people who had been convicted of specific criminal offenses or about whom the US government had specific knowledge that suggested the person was a threat.” [29]
Furthermore, President Trump’s claim that the Obama administration identified the seven countries as sources of terror is leaving out important context as the policy did not bar the countries’ nationals — it required travellers who had visited those countries since 2011 to apply for a US visa before entering due to a revision of the US visa-waiver program to “respond to the growing threat from foreign terrorist fighters,” according to the Department of Homeland Security. [30]
We also note that regardless of similarity, the discussion of President Trump’s Executive Order is a separate issue that cannot be simply justified by attempting to draw similar comparisons with another form of policy.
In defiance of international obligations
In 1980, Congress enacted the United States Refugee Act of 1980 (Public Law 96-212) to bring the US into conformity with its international obligations in particular, the 1967 Protocol Relating to the Status of Refugees which updated the post-World War II Refugee Convention of 1951, and other international human rights law that prohibits discrimination on the basis of race, religion, or national origin.
Article 3 of the Refugee Convention makes clear that all signatory states:

“apply the provisions… to refugees without discrimination as to race, religion or country of origin.”

Besides the Refugee Convention, President Trump’s Executive order also seemingly violates Article 4 of the International Convention on Civil or Political Rights, which notes that in a “time of public emergency which threatens the life of the nation”, states cannot take any action to stray from their obligations that involve discrimination “solely on the ground of race, colour, sex, language, religion or social origin.”
While governments are responsible for designing their own refugee resettlement programmes, these programmes must conform to international obligations. They must select refugees for resettlement only on the basis of their needs, regardless of nationality, ethnicity, religion, or other related characteristics.
The Convention allows exclusion of certain persons from refugee protection – for example, if they committed war crimes – but this exclusion is to be determined on a case-by-case basis and certainly does not allow any sort of blanket ban against a group of people or nationality. [31] President Trump’s Executive Orders, on the other hand, imposes such a blanket suspension which provides a case-by-case basis for inclusion rather than exclusion.
By halting admission of refugees from Syria based solely on that community’s country of origin, President Trump has carved out an impermissible exception to a key US treaty obligation. This is a clear violation of the Refugee Convention and the ICCPR.
While the order doesn’t bar all Muslims from entering the US, baring immigration entry from seven majority-Muslim countries, especially when paired with his national security team’s alleged record of Islamophobia [32], it is a high chance that the Executive Order will have a disproportionate effect on Muslims.
Unnecessary and disproportionate
Also on the issue of refugees, Donald Trump’s suspension of the U.S. Refugee Admissions Program (USRAP) for 120 days for review and to consider additional procedures to add to the pre-existing system is unnecessary and disproportionate to achieving the aim that is set out in the Executive Order due to the already vigorous vetting system which can take up to 2 years in addition to having their biometric information checked and having to undergo personal interviews with Department of State, Homeland Security (DHS) officials. [33]
As stated on the website of the US Refugee Admissions Program [34];

No traveler to the United States is subject to more rigorous security screening than the refugees the U.S. Government considers for admission. Only after the U.S. Government’s rigorous and lengthy security screening process has been completed and an applicant is not found to pose a threat does the U.S. Government grant that individual refugee admission to the U.S. Security screening of all refugees involves multiple U.S. agencies, including the Departments of State, Homeland Security (DHS), and Defense, the Federal Bureau of Investigation, The National Counterterrorism Center, the Terrorist Screening Center, and two federal intelligence agencies.

To elaborate further on why the tightening of vetting procedure for refugees is unnecessary the data above from the National Security Council, suggest that the typical American is [35]:

6 times more likely to die from a shark attack
29 times more likely to die from a regional asteroid strike
260 times more likely to be struck and killed by lightning
4,700 times more likely to die in an airplane or spaceship accident
129,000 times more likely to die in a gun assault
407,000 times more likely to die in a motor vehicle incident
6.9 million times more likely to die from cancer or heart disease

Since Sept. 11, 2001, foreign-born terrorist have killed roughly 1 American per year. [36] In contrast, comparisons with gun violence show the following statistics:
Using statistics from 2001 to 2013, the ratio of total Americans killed by Terrorism on US soil as well as overseas attacks to total death by firearms on only US soil is 1: 120. This is not discounting the fact that deaths by terrorism is not necessarily related to Islamic or Foreign-Born terrorist. As a result, even more stringent procedures on refugee admission and the indefinite suspension of entry for refugees from Syria is unnecessary. One may argue that the reduction in number from the predicted 110,000 refugee admissions to only 50,000 should more than suffice in handling any threat of terrorism.

Conclusion

The Executive Order on immigration is potentially illegal, unconstitutional, is in defiance of various international obligations and treaties and is also unnecessary and disproportionate in its attempt to achieve its purposes.
Based on the reasons set out above, we, as members of the Executive Committee of the United Kingdom & Eire Malaysian Law Students Union (KPUM) by virtue of the mandate granted to us, alongside the United Kingdom & Eire Council of Malaysian Students (UKEC) would like to express our disagreement with the recent Executive Order issued by President Trump.
As representatives of Malaysian students in the UK, we find it important to take a stand on the issue. Malaysia is a Muslim-majority country and the Executive Order sets a dangerous precedent for America with a high likelihood that its President may seek to include other countries in its suspension list. The powers of the Executive while granted through the democratic process is still not without its limits and is accountable to not only the Constitution but also to the legislative and judiciary branches of the State.
Besides that, international treaties and declarations were enacted after the Second World War in an effort to learn from past mistakes and their importance cannot be understated unless we wish to see a repeat of historical events in the 1930’s and 40’s, which has shown that even democratically-elected governments are capable of the most heinous crimes.
We urge the Malaysian government as key leaders to the OIC and as members of the UN Security Council in 2015-2016 to take a stand and to break their silence on the issue.
______________________________
On behalf of the Union and the Council,

Tan Ian, KPUM President 2016/17
Cia Yee Goh, KPUM Human Rights & Activism Officer 2016/17
Izzat Zalis Ismail, UKEC Chairperson 2016/17
Faizul bin Zuraimi, UKEC Deputy Chairperson 2016/17

[3] ibid section 3 (c), (f), (g).
[4] ibid section 5 (a).
[5] ibid section 5 (c).
[6] ibid section 5 (b).
[7] ibid section 5 (d).
[9] ibid.
[10] ibid.
[18] Executive Order (n 2) Section 1.
[19] See executive Order and NPR comment (n 2).
[27] 2012 Congressional hearing: https://www.gpo.gov/fdsys/pkg/CHRG-…
[28] ibid.
[30] ibid.
[33] Department of Homeland Security website: https://www.state.gov/j/prm/release…
[34] ibid.
[35] National Security Council; National Center for Health Statistics http://uk.businessinsider.com/death…
[36] ibid.

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