Jurisprudence

The White House Is Planning a Backdoor Travel Ban on Trump’s “S—thole Countries”

Stephen Miller
Senior adviser Stephen Miller talks to reporters about President Donald Trump’s support for creating a “merit-based immigration system” in the James Brady Press Briefing Room at the White House on Aug. 2, 2017.
Chip Somodevilla/Getty Images

The Trump administration is laying the groundwork for another travel ban, this time targeting people from many of the places President Donald Trump disturbingly referred to as “shithole countries.”

recent order from the White House has directed the State Department and the Department of Homeland Security to crack down on countries responsible for a “disproportionate” share of “visa overstays.” This effort would be targeted at people who come to the United States legally but stay past their visa expiration date. Specifically, the order contemplates a travel ban against any country with a visitor visa overstay rate of more than 10 percent.

This faux-objective test yields a list of decidedly non-European countries, the sort that the president dismissed as “shitholes.” The administration is demonstrating that it has clearly learned from its high-profile travel ban against visitors and immigrants from predominantly Muslim-majority countries, which was initially blocked in the courts for the blatancy of its discrimination. After a Supreme Court victory on the final version of this Trump campaign promise to carry out a Muslim ban, the administration has apparently realized that the key to implementing the president’s discriminatory policies is to use arcane regulatory language you might not notice to enact a backdoor ban. That’s precisely what’s going on in this latest case, if you look at the numbers.

Based on the latest DHS estimate of overstay rates, the targeted—although not yet officially named—countries would be Yemen, Syria, Afghanistan, Bhutan, Georgia, Micronesia, Palau, and 13 countries in Africa, including Nigeria, Liberia, Angola, and Sudan. (“Why do we want these people from all these shithole countries here?” Trump demanded last year during negotiations over an immigration deal, in a reference to Haiti, El Salvador, and African countries that was widely viewed as being racist. “We should have more people from places like Norway.”)

Four months from now, the secretary of state must provide recommendations to the president, which may include a new proclamation suspending all visitor visas from these mostly African countries—under the same statutory authority used to justify the existing travel ban on mostly Muslim-majority countries (which already includes Yemen and Syria).

These 20 countries together are responsible for, at most, only 7 percent of visitor visa overstays. Yet in the words of the presidential order, the problem is “large numbers of aliens” who overstay, thereby placing “significant strain on [government] resources, which are currently needed to address the national emergency on our southern border.”

If that were actually the goal, then it would only be reasonable to target those countries that send the highest number—not percentage—of visitors who overstay.

The top 20 countries by overstay volume account for a whopping 76 percent of the total, but here’s the rub: This list includes large, majority-white nations like Canada, the United Kingdom, France, Italy, Spain, and Germany. Sure, the list also includes Haiti, El Salvador, Brazil, Mexico, China, India, Venezuela, and six other South American or Caribbean nations. But it’s hard to escape the conclusion that the White House has created a discriminatory bench mark that would inflict pain primarily on people from countries in Africa, rather than addressing the alleged “problem” of massive visa overstays.

Further undermining the administration’s collective punishment plan is the fact that overstays aren’t a major problem to begin with. Based on the government’s own data, last year DHS could confirm that 99.24 percent of foreign visitors had either “departed the United States on time and in accordance with the terms of their admission” or had left within the next six months. Even this low overstay rate is probably too alarmist; according to respected demographic work from the nonpartisan Center for Migration Studies, DHS has overcounted overstays by more than 50 percent by failing to record departures, and thus its estimates “do not provide a sound basis for making decisions” about immigration policy.

It’s probably no accident that this new travel ban effort was kicked off by the White House just a week after a purge of top immigration officials who, in the words of the New York Times, had reportedly pushed back against the “implementation of policies that were legally questionable, impractical, unethical or unreasonable.”

After two years of systematically restricting legal immigration, the Trump administration is leaving no idea off the table. With White House adviser and racial quota fan Stephen Miller now reportedly in full control of immigration policy, we can expect the administration to pursue increasingly draconian approaches—just as we can expect them to use faulty data and poor logic as justification.

This time, they’ll do a better job of hiding their tracks as they try to ban people from countries with “high overstay rates.” But it’s just another attempt to exclude people of color.