Trump’s “Travel Ban” Is Based on an Entirely False Legal Premise

Donald Trump fired off several tweets this morning about his executive order barring for at least 90 days all immigration or travel to the United States for six Middle Eastern and African nationalities, stating that he thinks it should actually be much broader. I have previously explained why President Trump’s national security justification for the order is completely devoid of evidence. But another fact that we highlighted in our amicus brief deserves attention here: that the order’s supposed “security” purpose is based on an entirely false legal premise.

The executive order claims that it is suspending entries to give the Secretary of Homeland Security time to study “whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.” It justified the specific countries by stating that their governments have shown less “willingness or ability to share or validate important information about individuals seeking to travel to the United States.”

Even if his claim about all six countries were true, this justification is entirely without merit because the applicant, not the government, has the burden to prove their eligibility under the law. In other words, the government has no obligation whatsoever to identify or gather information on the behalf of the applicant simply to “adjudicate” an application. 8 U.S.C. 1361 could not be clearer on this point:

Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this chapter, and, if an alien, that he is entitled to the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this chapter.

Thus, if someone fails to obtain identity documents or criminal history certified by the relevant foreign authorities—as the law requires—then the consular officer can still adjudicate the application by issuing a denial. The U.S. government need not affirmatively determine anything about the applicant. Indeed, even if officers conclude that they know nothing about the applicants, this lack of knowledge still wouldn’t prevent them from denying the visa. Applicants must gather the relevant proof to establish their identity and eligibility on their own. If their foreign governments are uncooperative or unreliable, that redounds to the detriment of the visa applicant, not the U.S. government. It would certainly not prevent an individualized adjudication of their application.

But if a foreign government won’t cooperate, doesn’t that by definition mean that their nationals can’t ever meet their burden of proof? Not at all. A person may be a national of a certain country, yet have lived for many years apart from it. Indeed, in the case of Syria and Iran, a national may have literally never lived in their country at all yet possess such “nationality” as a legal matter. According to the United Nations, 11.2 million nationals of the six banned countries lived outside their country of origin in 2015. (Literally no applicant can actually travel directly from five of these countries because the U.S. has closed its embassies and consulates.)

Many of these people could easily fulfill their burden of proof through the country of residence. Other individuals could meet their burden because they had previously obtained evidence from their home governments before the outbreak of civil war or because the U.S. government knows their identities for other reasons, such as scientific achievements, past U.S. travel, or cooperation with counterterrorism efforts.

Nor is there any evidence for the view that consular officers have failed to enforce the burden of proof or that they are not reacting to changes in the availability of evidence. As the table below shows, the visa refusal rate for the most common visa class is much higher in each of the nationalities impacted by the ban (plus Iraqis who the first order barred). This shows that officers have taken into account these nationals’ unique circumstances. Moreover, the visa refusal rates increased, as you would predict based on the law, after the outbreak of civil wars in Libya, Syria, and Iraq when many documents would have become lost and reliable government records more difficult to obtain.

Table: B-1 Visa Refusal Rate (% of Applicants) by Nationality

Country

2010

2011

2012

2013

2014

2015

2016

Somalia

70

67

62

66

52

65

64

Syria

28

33

42

46

60

63

60

Iraq

42

27

33

39

41

53

52

Yemen

54

48

48

44

44

54

49

Iran

39

31

38

48

42

39

45

Libya

14

31

39

34

34

43

41

Sudan

33

41

45

48

42

40

37

Average

40

40

44

46

45

51

50

All other countries

26

25

24

24

23

24

25

Source: Department of State, Adjusted Visa Refusal Rate

In sum, as courts decide whether the executive order was completely forthcoming about its purpose, they should consider the fact that its purported premise is, in fact, false. The government does not need to gather information to adjudicate visas because it has no legal obligation to gather anything since applicants bear the burden of proof. Neither can it claim that no national of these countries could ever meet its burden nor that consular officers are not enforcing this burden. Thus, despite his tweets to the contrary, the president is left without a true justification for this order.