Four ways U.S. is already unfairly banning Muslims

Donald Trump’s proclamations about banning all Muslims from entering the United States - even temporarily - have triggered welcome condemnation. Yet those of us engaged with policies affecting U.S. Muslims between election cycles are dismayed, but not surprised, by Trump’s idea.

For 14 years authorities have steadily and silently implemented variants of the proposed Muslim exclusion.

In my four years the CLEAR project, I saw how our U.S. Muslim clients encountered an array of policies and practices denying Muslims - citizens or residents - full access to the privileges of citizenship and permanent residency. A few examples:

Delaying and denying Muslim immigrant petitions

There is a little-known, formerly secret but sweeping federal program that results in delays or outright denial of citizenship or immigration benefits for otherwise eligible Muslims, apparently based on religion or national origin, among other things. The Controlled Application Review and Resolution Program, or CARRP, has been in place since at least 2008.

One of our clients likely subjected to this program is a religious leader, prominent in his community, who had been in the U.S. for over 20 years. He was never alleged to present any security threat, and his children are all U.S. citizens. While he is eligible to become a resident, he has waited 12 years for his petition to be processed.

Another client, in the U.S. since he was a young boy, had his naturalization petition first "held" for years by the FBI and eventually denied on a pretext. While we ultimately prevailed in challenging that denial, it took considerable resources, many years and a significant toll on him and his family. With unpredictable delays and denials, life becomes impossible to plan. And the promise of American citizenship or residency becomes elusive.

"Proxy denaturalization" through passport confiscation

This is an even less well-known program with strikingly Trumpian characteristics. Around 2013 CLEAR, along with a number of civil liberties organizations, began receiving complaints from U.S. citizens of Yemeni origin, all describing the same peculiar pattern: They went to the U.S. Embassy in Sanaa, Yemen, for a routine consular matter such as registering a newborn. Once there, they were subjected to lengthy and coercive interrogation by State Department officials, at the end of which they were forced to sign statements and their U.S. passports were seized without explanation.

Some were only told after months - or sometimes a year - that they would be allowed to fly back to the U.S. and go through an opaque process to argue that they should get their passports back. The arbitrary character of this entire process has led many advocates and scholars to argue that this program amounts to proxy-denaturalization: allowing the government to strip a subset of citizens - all Muslim - of the benefits of citizenship without going through appropriate procedures.

An unknown number of Americans are likely stuck in Yemen or, if they have fled violence there, stuck in neighboring countries, unable to return to their families or businesses. The State Department, which claims it is acting pursuant to "reasons set forth in federal law and in federal regulations," has not issued any apologies and has doubled down in individual administrative hearings.

The no-fly list

Another tool disproportionately affecting Muslims is the no-fly list, a database of individuals who are denied boarding commercial flights to or from the U.S. In 2013, there were reportedly 468,749 names on the list. Based on all publicly known examples I’m aware of, and all of my clients, the no-fly list is almost entirely populated by Muslims or individuals assumed to be Muslim.

Federal courts have ruled that the process to challenge placement on this list is constitutionally inadequate, and there have been some recent, limited revisions to this process. But it remains arduous and unpredictable, the criteria for placement on it remains too broad and the list - which likely continues to grow - is riddled with errors.

At CLEAR, I represented a dozen clients who were on the no-fly list, U.S. citizens and permanent residents. Those stranded overseas were ultimately allowed to return while they went through the lengthy process of trying to get off the list. But they had to make difficult choices of leaving parents, grandparents, spouses and young children, not knowing when they would be able to reunite. Some decided to remain overseas to avoid being separated from their loved ones, who had no way of joining them in the U.S.

And the process remains a looming threat to many others who have not been denied boarding, but fear the possibility of being put on the list - a surprisingly common concern among many young Muslims I met with. When the possibility of an arbitrary ban on travel colors decisions about where to live, where to raise families and what jobs to take, access to citizenship or legal status becomes moot.

"Special registration" for Muslims

And let us not forget another very recent historical precedent for Trump's proposal: The National Security Entry-Exit Registration System program, implemented after the 9/11 attacks, mandated that all non-immigrant males from 24 Muslim-majority countries (and North Korea) register with the government. Though the program did not yield a single terrorism-related prosecution, it resulted in widespread deportations and exclusions, and its effects on thousands of families remain to this day.

None of these programs quite amount to the outright ban Trump has called for. But they are all variants on a theme that has been alive and well for some time.

As pundits race to condemn Trump's particularly egregious breed of Muslim scapegoating, anyone watching our country's trajectory is left wondering where the outrage has been. We should be far more concerned by well-oiled federal programs vigorously defended by a Democratic administration than by bombastic election-season proclamations of a candidate who is particularly adept at tapping into the national mood.

Americans have been primed for this moment. Trump is merely capitalizing on that reality.

Diala Shamas is a supervising attorney at Stanford Law School's International Human Rights Clinic. Formerly she worked as an attorney with the CLEAR project at CUNY School of Law.