In a little-noticed move recently, President Donald Trump’s administration reversed a policy adopted by his predecessor that made it easier for foreigners with terrorism ties to get into the United States.
Former President Barack Obama’s administration had instructed U.S. Citizenship and Immigration Services (USCIS) officers to withhold decisions — and give the Homeland Security secretary an opportunity to grant a waiver — regarding certain foreigners who otherwise would be inadmissible under U.S. law.
USCIS officials instructed officers in a memo last month:
“Effective immediately, the above-described prior hold policy is rescinded,” the memo states. “Cases for which no exemption(s) is currently available should not remain or be placed on hold” without an order from headquarters.
The Obama-era policies applied to foreigners seeking entry into the United States and — more troublingly, according to critics — foreigners already in the country who were trying to stay.
“Why were we doing that? God only knows,” said Matthew O’Brien, the former chief of the National Security Division of the Fraud Detection and National Security Directorate at USCIS. “It doesn’t make any sense. It’s more of a mindset of ‘Keep trying until the alien wins.'”
A policy memo issued in 2009 instructed USCIS officers to withhold decisions in four categories of foreigners to give the secretary of the Department of Homeland Security an opportunity to decide whether or not to grant an exemption. Those categories were:
- Foreigners who were inadmissible based on any activity or association related to a terrorist organization that had not been specifically designated by the U.S. government. The memo gave the officer discretion to grant an exemption to applicants who had been part of groups no longer considered terrorism organizations.
- Foreigners who were inadmissible based on activity or association with a named or unnamed terrorism organization where the support was provided under duress.
- Foreigners who voluntarily provided medical care to terrorists.
- The children and spouses of foreigners who were inadmissible on terrorism-related grounds.
Holds Piled Up
The memo instructed officers that when the applicant posed a danger to the country’s safety and security, he should raise the case through the chain of command.
In 2011, as holds began piling up, the administration issued a revised memo giving more discretion to USCIS officers to deny applications if they and subsequent reviewers determined that applicants under the first two categories did not warrant exemptions.
It is unclear how many holds were placed on foreigners seeking admission and how many of those holds resulted in waivers that allowed them to come or stay in the country. O’Brien, who now is director of research at the Federation for American Immigration Reform, guessed that it likely was in the thousands.
“I believe there were a pretty significant number of exemptions were made during the Obama administration,” he said.
Kyle Shideler, director of the threat assessment office at the Center for Security Policy, noted that the Washington-based think tank criticized the Obama administration at the time that it loosened the rules. He praised the Trump administration.
“That’s a very positive development,” he said. “To the extent that the Trump administration is reversing this lax policy, that’s a major plus.”
Shideler said the Obama policy was consistent with an overall philosophy that took a softer line on foreigners who were not directly involved in terrorism. He pointed to the case of Tariq Ramadan, a prominent Muslim academic who had been banned from the United States by the George W. Bush administration under a provision of the Patriot Act allowing the government to bar foreigners who “use a position of prominence within any country to endorse or espouse terrorist activity.”
The administration cited Ramadan’s $1,300 in financial contributions from 1998 to 2002 to a Swiss-based charity that supported Hamas, a militant Palestinian group. Then-Secretary of State Hillary Clinton signed an order reversing the ban.
Two years later, then-Homeland Security Secretary Janet Napolitano determined that Hani Nour Eldin — a member of a militant group banned in Egypt — posed no threat to the United States and granted him a visa to travel to America.
“They wanted to essentially grant waivers to people if they had been engaged in what they called ‘limited material support'” of terrorists, Shideler said.
‘We Certainly Never Put a Hold on These’
Andrew “Art” Arthur, who supervised lawyers handling espionage and terrorism cases as associate general counsel of the Immigration and Naturalization Service at the end of the Bush administration and first few months of the Obama administration, said he found the Obama policy strange.
“We certainly never put a hold on these,” said Arthur, now a resident fellow in law and policy at the Center for Immigration Studies. “We just put them into removal proceedings and banged them out.”
Jessica Vaughan, director of policy studies at the immigration think tank and a former foreign service officer, said it is better to make quick decisions on applications.
“It’s good that those people are not held in limbo,” she said. “Of course, what really matters is what that decision is.”
Vaughan said it may seem compassionate in the abstract to grant exemptions to foreigners who had only passing connections to terrorist groups or supported them only under distress.
“In practice, we have to consider how many of these stories can be verified,” she said. “It seems to be taking a more cautious approach.”
O’Brien said drawing the line comes down to a basic philosophical divide — does America err on the side of its citizens and security or on the side of foreigners wanting to come or stay in the United States. He said the country can afford to be choosy.
“America is the best-selling brand in the entire world,” he said. “We have no shortage of immigrants wanted to come here.”