The Trump ‘Travel Ban’ Is Actually an Entry Restriction

By Michael W. Cutler
Volume 29, Number 1 (Fall 2018)
Issue theme: "Sanctuary Nation - The Fraying of America"

The “War on Terror” continues. At the same time, unfortunately, the “War of Words” conducted by advocates for unrestricted immigration has obfuscated the issues and hobbled the Trump administration’s efforts to exercise lawful authority to protect America.

During his run for the White House, Candidate Donald Trump, understanding the concerns of millions of Americans, made the promise of securing our borders a centerpiece of his campaign. Not surprisingly it resonated with a large segment of voters and, arguably, propelled him into the Oval Office.

Consequently, just days after being sworn into office on January 27, 2017, President Donald Trump issued one of his very first Executive Orders: Protecting the Nation from Foreign Terrorist Entry into the United States. The purpose of that Executive Order was clear and unequivocal. It began with the following:

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

Section 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.

There was nothing controversial about the Executive Order (EO), but anti-enforcement advocates, among them federal judges, claimed that statements made by Candidate Trump called into question the possible motivations of President Trump.

Ironically the Executive Order actually addressed the issue of bigotry and that one of the reasons for the EO having been issued in the first place was to protect potential victims of bigotry, as noted in this excerpt:

In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

Immediately the open-borders and uncontrolled immigration apologists decided to ignore the actual name of the EO and deceptively named it “Trump’s Travel Ban.” Some even added to this by referring to it as “Trump’s Travel Ban For Muslim Majority Countries.”

Make no mistake, the President has clear statutory authority to prevent the entry of aliens into the United States. President Trump’s EO did not act in place of law (as did President Obama’s DACA program), but satisfied the requirement for a long-standing law of the issuance of a proclamation laying out the restrictions on aliens.

The section of the Immigration and Nationality Act (INA), 8 U.S. Code § 1182 — Inadmissible aliens, enumerates the categories of aliens who are prohibited from entry into the U.S.

A subsection of this law (f) addresses the Presidential authority that Trump’s EO utilized:

Title 8, United States Code, Section 1182 (f): Suspension of entry or imposition of restrictions by President.

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.

It would have been reasonable and factually accurate to refer to the EO as “An Entry Restriction” rather than the draconian sounding “Travel Ban.”

Furthermore, this law has been used by other Presidents, such as Jimmy Carter when Iranians in Tehran seized the U.S. Embassy and took Americans hostage. I was an INS agent back then and recall being called to an “All Hands Meeting” where we were instructed to drop everything, lock up our ongoing investigations (unless there was a compelling need to wrap up loose ends), and focus 100 percent of our hours on looking for Iranian citizens and documenting them thoroughly, even if they were here legally. Any Iranians who were out of immigration status were to be arrested immediately and taken into custody. Meanwhile, the Immigration Inspectors at ports of entry were ordered not to admit any citizens of Iran into the U.S. Any such citizens who claimed political asylum were to be detained until their claims of credible fear could be properly vetted. There were no riots or demonstrations back then.

It is essential to note that the above-noted section of law only requires that the decision by the President to suspend the entry of aliens needs only to meet the threshold of determining that the entry of such aliens “would be detrimental to the interests of the United States.” That is a low bar, indeed.

Some federal judges challenged the President’s Executive Order by claiming that it was “unconstitutional.” Even after several revisions and “tweaks,” federal judges continued to find the Executive Order to be “unconstitutional.”

The Supreme Court finally approved the implementation of the Entry Restriction, but only after God knows how many potential terrorists may have entered the U.S. and may, in fact, be wandering the streets of towns and cities across the country at this very moment, as “Sleeper agents” awaiting instruction to initiate a deadly attack. Perhaps at this moment they are working in preparation for such an eventuality.

On September 11, 2001, more people were killed at the hands of just nineteen terrorist-hijackers than were killed by the Japanese fleet at Pearl Harbor. The seventeenth anniversary of that terror attack was recently observed. But many of the findings and recommendations of the 9/11 Commission have yet to be implemented. At the rate we are going — in stark contrast with America’s “Greatest Generation,” which fought World War II — our generation, God forbid, may be remembered as America’s “Last Generation.”

About the author

Michael W. Cutler is a retired Senior Special Agent with the INS (Immigration and Naturalization Service).  He appears regularly on numerous radio and television programs, including Fox News, CNN, and MSNBC. He hosts his own Internet radio program, “The Michael Cutler Hour.” Mr. Cutler has testified as an expert witness at more than a dozen Congressional hearings, provided testimony to the 9/11 Commission, and provides expert witness testimony at trials where immigration is at issue: