Memo on US Supreme Court Decision on IRAP v. Trump upholding September 24, 2017 Presidential Proclamation of Travel Ban

On Tuesday, June 26, 2018, the United States Supreme Court upheld the Trump Administration’s travel ban, which was challenged in the case that MESA joined as a plaintiff, IRAP v. Trump. The decision allowed the Presidential Proclamation, issued on September 24, 2017, to remain in full effect (for MESA’s statement on the Proclamation see here). Despite noting the statements by the President in his campaign, following the election, and after taking office, which indicate animus against Muslims, the Court ruled that the specific immigration restrictions introduced by the Proclamation were within the lawful powers of the executive branch on national security grounds. MESA will continue to oppose the unfair targeting of Muslim communities for immigration restrictions using all lawful means at our disposal. We recognize that the proclamation—commonly known as Muslim Ban 3.0—harms our student and faculty members by disrupting travel, research and the free exchange of ideas—impacting most adversely scholarship, research and academic collaborations in the countries directly affected by the ban—and we remain committed to finding ways to support our members and institutional partners with innovative strategies to maintain our scholarly networks despite the travel restrictions now in effect.

MESA’s Task Force on Civil and Human Rights was established by the MESA Board in November 2016 to supplement the work of the MESA Committee on Academic Freedom (CAF) by addressing threats to the civil rights, human rights, and political freedoms of the Middle East Studies community broadly defined. We believe that the exclusions of people from five Muslim-majority countries is discriminatory and damages academic institutions in the United States. We maintain that the travel ban remains at odds with fundamental principles upheld by MESA including the commitment to the free exchange of ideas.

The Task Force is issuing this updated statement, which revises our earlier statements of January 29, 2017, March 8, 2017 and September 25, 2017 to alert the Middle East Studies community to the probable consequences of the Supreme Court’s decision.

The travel ban includes nationals of five Muslim-majority countries—Iran, Libya, Somalia, Syria and Yemen. There are exemptions from the ban that are particularly relevant to MESA members and institutional affiliates.

First and foremost, the ban does not apply to nationals of Iran, Libya, Somalia, or Yemen  applying for student visas to travel to the United States, including F, M and J visas.  (It does apply to Syrian nationals seeking such visas). This exemption should protect most current students (including those admitted to begin their studies in Fall 2018) and should allow students from these countries who have been admitted to U.S. universities going forward to apply for non-immigrant student visas. We do caution that while the ban does not technically apply to most student visas, in practice the process for obtaining a visa now involves additional enhanced screening that might slow visa issuance, result in denials in some instances and limit the overall number of visas issued. There are widespread anecdotal reports of a substantial reduction in visas issued to students from the affected countries. In addition, due to the risk of discriminatory treatment at the border, we advise students already in the U.S. on a valid visa to avoid unnecessary travel. 

Second, the ban does not apply to individuals from these countries who already have valid visas to be in the United States. This includes those already employed by American universities and colleges, those already here on student visas and those who already have visas entitling them to travel to the U.S. for academic lectures or research purposes. This also includes those who are currently green card holders or are dual nationals whose second nationality is not impacted by the travel ban. We should note, however, that although these individuals are entitled to be in the United States, some may encounter difficulties if they leave the country and seek to gain readmission on their valid visas due to discretionary practices at the border. MESA will continue to collect information about the impact of the travel ban on our scholarly community, and we encourage all members to alert us should they encounter difficulties at the border when traveling on a valid visa by emailing us at survey@mesana.org.

Third, the presidential proclamation provides for waivers on a case-by-case basis for those who face an undue hardship as a consequence of the travel ban. There have been reports that waivers are not being issued (or are being issued in very small numbers) and that the waiver process is not being implemented in any complete way. Despite these reports, the waiver option may be worth pursuing both to seek individual relief from the travel ban, in the event the Trump administration begins approving more waivers, and to contribute to efforts underway to gather data about waiver issuance and whether the policy is being applied in good faith. We encourage anyone who is applying for a waiver to travel in pursuit of academic activities to report their experiences with the waiver process by emailing us at survey@mesana.org.

Beyond the exemptions and waiver process described above, the Supreme Court’s decision to uphold the travel ban has the following effects, among others, that may have consequences for those in the field of Middle East Studies:

  • The indefinite restriction of entry to the United States for certain nationals of Iran, Libya, Somalia, Syria, and Yemen.  This restriction could bar scholars from these countries from travel to the U.S. unless they hold an American passport or green card, are a dual national (with a second nationality from a non-designated country), or are already in possession of a valid visa to enter the United States. Academic institutions should closely follow changes in the implementation of the travel ban as new applicants begin to seek student visas that are supposed to be exempt from the ban and scholars apply for waivers under the case-by-case waiver process.
  • Any nationals of the five listed countries (who are not also U.S. citizens, green card holders or dual nationals) currently present in the U.S. on valid visas should consider avoiding foreign travel as they may face challenges to readmission to the United States. We recommend that nationals of these countries err on the side of caution. Academic institutions should prepare to support faculty, staff and students legally remaining in the United States until more is learned about the treatment of valid visa holders who seek readmission during the period of entry restriction.
  • Those nationals from the five listed countries (who are not also U.S. citizens, green card holders or dual nationals) currently present in the U.S. with valid visas may be affected by the travel ban when they seek to renew their visas. There is no provision of the current ban to suggest that nationals of these countries will be able to seek visa renewals unless they hold a visa not subject to the ban (such as F, M or J student visas). Because the language of the presidential proclamation is ambiguous, academic institutions should prepare to support affected faculty, staff and students legally in the United States who may be left unable to renew their visas.
  • The Presidential Proclamation may disrupt applications for admission to American universities at the undergraduate and graduate levels. We advise academic institutions to avoid compromising their admissions standards in anticipation of immigration restrictions and to continue soliciting and processing applications from the affected countries. We also advise academic institutions to maintain their hiring standards and to consider qualified scholars and researchers from the affected countries as candidates in competitive searches for faculty hiring and the selection of post-doctoral scholars, bearing in mind that they may qualify for a waiver or exemption.
  • The Presidential Proclamation also extends enhanced screening procedures that have been in effect since January 2017 and have been applied to visa applicants who have traveled through the countries listed on the different iterations of the travel ban. Enhanced screening may also be applied to visa applicants with ties to the broader Muslim-majority world on a discretionary basis. Nationals of countries with visa waiver programs with the United States who have traveled through Iran, Libya, Somalia, Syria and Yemen are also subject to these enhanced screening procedures and cannot travel to the U.S. based on visa waivers. Anecdotal evidence suggests that visa issuance processes for those subject to enhanced screening involves significant delays, and even visa denials, complicating scholarly travel to the U.S. for academics from the Middle East or those based outside of the U.S. who regularly travel to the region. We advise academic institutions to support affected faculty, staff and students who may face delays in visa processing and we advise our members to take likely visa delays into account as they make plans for academic travel to the U.S.
  • The impact of these travel restrictions on campuses across the country can be somewhat mitigated by university administrators who adopt measures to support affected faculty, staff and students. We advise university administrators to maintain firm commitment to the privacy of personal records of students and personnel. We advise universities to adopt guidelines limiting the participation of campus police in immigration enforcement. Finally, the travel ban may limit the ability of affected individuals to comply with campus procedures and deadlines as they grapple with visa status and entry obstacles. We encourage university administrators to interpret all relevant requirements flexibly and within legal limits to maximize the ability of affected individuals to continue their studies and/or employment despite the implementation of the Order.

Despite existing exemptions and the apparent existence of a waiver process, remaining restrictions on entry into the United States and the enhanced screening mechanisms that are in effect threaten the academic community’s ability to sustain critical engagement with colleagues from the affected countries. The Muslim-majority countries singled out by the travel ban are all within the Middle East as defined by MESA. Their citizens have suffered enormous violence and dispossession, and the Middle East Studies academic community has both a professional and an ethical responsibility to defend their rights. We will continue to explore all avenues to do so, including by continuing to voice our opposition to the ban, to document its adverse impact on our scholarly networks and to develop innovative means of working around these travel restrictions. Litigation avenues may still exist and, if so, MESA will continue to actively explore ways to participate in challenging the ban. Moreover, litigation does not exhaust the options available for opposing the travel ban. Lobbying Congress to act legislatively to reverse the President’s travel ban, by refusing to approve funding to enforce it, is one example of an alternative strategy that may yet prove effective. MESA will join our sister scholarly associations in calling for such Congressional action and we encourage our members to do the same. We will also to the best of our ability enable the participation in our conferences of colleagues who face travel restrictions by relying on digital platforms.

The MESA Task Force on Civil and Human Rights will closely follow the interpretation and enforcement of the travel ban and provide updated information and guidance as they become available. In the meantime, MESA continues to collect information on how the travel ban is affecting our scholarly community. If you have been adversely affected by the ban, please contact us at survey@mesana.org so that we can continue to track our members’ experiences as we seek new lawful avenues to oppose the ban.

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