Defending The Travel Ban Just Got A Little Easier

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Kevin Daley Supreme Court correspondent

The Departments of Justice and Homeland Security released a report Tuesday detailing deficiencies in the U.S. immigration system, which could supplement the government’s legal defense of President Donald Trump’s travel ban.

The report concludes that 73 percent of the 549 people convicted on terror-related charges since Sept. 11, 2001 were foreign-born, while another 1,700 foreign nationals were deported for national security concerns. Though the report draws helpful findings for the president, its value to the travel ban litigation would appear limited.

If nothing else, the report establishes a constructive empirical baseline for future proceedings. Judges evaluating the travel ban have frequently asked government lawyers for data respecting terror-related deportations or the radicalization of foreign-born nationals, prompting roundabout exchanges as little such data was available.

In some instances, the absence of data precipitated false conclusions, as when Judge James Robart of the U.S. District Court for the Western District of Washington mistakenly claimed that no person born in a country named in the travel ban has ever been arrested on a terror-related offense in the United States.

Travel ban critics have long seized on the absence of such data to demonstrate that the government’s purported national security justifications are little more than a veneer masking the administration’s true purpose — anti-Muslim bigotry. Though Tuesday’s report is unlikely to convince detractors, it will be a useful tool against judges suspicious of the president’s real objective.

Still, the report may be of limited value, as it provides no data respecting the nationality of those convicted on terror-related charges or deported for national security reasons. Though the report names eight foreign nationals convicted on terror charges — several of whom are from countries named in the latest round of travel restrictions — the total number of nationals from sanctioned countries is unclear, limiting its probative use.

Tuesday’s report also appears to count foreign nationals arrested abroad who are tried in the U.S. as immigrants for purpose of its count, a move some observers found dubious.

Sections of the report pertaining to gender-based violence are similarly deficient. Stunning though the figures may be, it is not clear how the travel sanctions address the problem identified, as many perpetrators could be from countries unaffected by the ban. The figures themselves were derived from other sources, and the report admits most jurisdictions have not “recorded and tracked in an aggregated statistical manner information pertaining to gender-based violence against women committed at the federal and state level.”

Still, Attorney General Jeff Sessions said the data compiled in the report sufficiently corroborates the national security rationales underlying the order. Government lawyers argue the president has significant power to restrict the entry of foreign nationals deemed terror threats.

“This report reveals an indisputable sobering reality—our immigration system has undermined our national security and public safety,” he said in a statement attending the report’s release. “And the information in this report is only the tip of the iceberg: we currently have terrorism-related investigations against thousands of people in the United States, including hundreds of people who came here as refugees.”

A Justice Department official told The Daily Caller News Foundation that government lawyers defending the travel ban did not assist in the compilation of Tuesday’s report.

A challenge to the latest version of the travel ban, now in its third iteration, is currently pending before the Supreme Court. The justices are scheduled to consider that petition Friday. A second travel ban challenge is pending before the 4th U.S. Circuit Court of Appeals. The 4th Circuit heard arguments in that case in Dec. 2017 and could issue a decision at any time.

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