Will Biden’s repeal of Trump’s Muslim ban reverse its impact?

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President-elect Joe Biden promises to overturn on “day one” the so-called ‘Muslim Ban’. File photo.

President-elect Joe Biden promises to overturn on “day one” the so-called ‘Muslim Ban’, the executive order that outgoing President Donald Trump put in place, restricting citizens from several Muslim-majority countries from entering the United States.

The ban, which fulfilled a central Trump campaign promise, had immediate and far-reaching consequences. It stranded refugees in third countries, divided families and denied critical healthcare to ill people. It prevented American citizens from being joined by friends and relatives for weddings, funerals and graduations and kept couples from getting married.

“Prohibiting Muslims from entering the country is morally wrong,” Biden says on his campaign website, “and there is no intelligence or evidence that suggests it makes our nation more secure.”

Rights advocates and Muslim American groups have welcomed Biden’s commitment to overturning the measure. But question whether it can do enough to address the harm it has caused to families over the past years.

“We are happy that Biden is going to repeal the ban,” said Ibraham Qatabi, a legal worker at the Center for Constitutional Rights.

“But the question is, what does that mean for families impacted by the Muslim ban?” said Qatabi, according to Al Jazeera. “Are they going to get their visas and be reunited with their families?”

‘Inherently discriminatory’

On January 27, 2017, a week after taking office, Trump abruptly announced the first travel ban. The decision sent shockwaves across the world and caused chaos in dozens of US airports as hundreds of travellers who were in midair when the announcement was made, were suddenly in possession of invalid US visas. Many were detained and sent home.

It caused outrage among rights groups who challenged the measure in court, arguing that it is discriminatory and unconstitutional.

Lower courts struck down the first two iterations of the ban. But in June 2018, the US Supreme Court upheld the third version which primarily affected nationals from Iran, Yemen, Syria, Somalia, Nigeria, Libya, Myanmar, Sudan and Chad. It also included restrictions on citizens from Eritrea, Kyrgyzstan, North Korea, Tanzania and Venezuela.

Official records show at least 88,000 people were subject to the ban.

Defenders of the Muslim ban say it was a justified move, as it allowed immigration agencies to properly vet citizens from countries that do not keep or share intelligence records with the US.

“Those particular countries are especially problematic for American intelligence and law enforcement to vet for security, because they are largely ungoverned,” said Todd Bensman, Senior National Security Fellow at the Center for Immigration Studies, citing the examples of Libya and Yemen, two war-torn countries that lack stable governments.

National security perspective

“From a national security perspective, it was a good thing,” Bensman said. “It definitely reduced the risk that people would get in and conduct attacks.” It helped vetting officers “to determine whether applicants are part of jihadist movements or terrorist groups, may be radicalised or have some disqualifying history that would make them ineligible,” he added.

Muslim American groups say the national security argument was a guise that helped the third iteration succeeds in court. They also cite the introduction of a waiver provision that allowed – at least in theory – for exceptions for some foreign nationals to file in order to enter the country.

“There was a third iteration of the Muslim ban because the first two were so discriminatory that it would have never passed constitutional muster in the Supreme Court,” said Robert McCaw, Government Affairs Director at the Council on American-Islamic Relations.

“The third ban, while still inherently discriminatory in its origins,” McCaw said, “on its face value was built on national security concerns and the promise of a waiver process that was never realised.”

Undue hardship

Hiba Ghalib, an immigration lawyer in Atlanta, Georgia, said to be approved for a waiver, petitioners must satisfy three criteria: that “undue hardship” would be caused to the applicant if their entry was denied, entry to the country would be in the US’s national interest, and that their entry would not pose a threat to US national or public safety.

In practice, Ghalib said the waiver process proved difficult to manoeuvre, not least because the criteria were overly broad.

“It was a mess,” Ghalib said. “It was arbitrary and also new, but it was also intentional,” she said. “There was no clarity or consistency because that way it could remain subjective.”

According to The Bridge Initiative, a research group at Georgetown University, 74 percent of waiver applications between December 2017 and April 2020 were denied.

Ghalib added that more concerning was the time it was taking immigration agencies to inform applicants of the outcome of their submissions, often taking months and even years.

“Everyone was all of a sudden in limbo,” Ghalib said. “They were just not making decisions. The lack of responsiveness became the most frustrating thing for people,” she added.

Trumpian immigration policy

In July, Democrats passed the No Ban Act in Congress, which would repeal the travel ban and prevent the US president from imposing future immigration restrictions based on religion or ethnicity. At the time, the bill did not advance to the Republican-controlled Senate.

With Senate control soon to be held by Democrats with a slim one-vote majority, it remains uncertain if the bill can advance to a vote.

“Trump’s travel ban is the quintessential Trumpian immigration policy,” said Alex Nowrasteh director of immigration studies at the Cato Institute. “It targeted mostly Muslim majority countries for poor security reasons,” Nowrasteh said. “Removing it is not only good from a public policy perspective, but it also repeals the most visible and well-known immigration action taken by Trump.”

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