The order, which was struck down in court and subsequently revised, aimed to block the entry of individuals from seven Muslim-majority countries to the U.S., temporarily shut down the entire refugee resettlement program, and prioritize religious minorities for refugee resettlement once the program resumed. This last promise ― as comments from Trump and those close to him later demonstrated ― would allow the government to prioritize Christians from Middle Eastern countries over Muslims.
On Monday, Trump signed a new, watered-down version of the order. Among the changes was the removal of special privileges for religious minorities. The initial proposal, the new order claims, wasn’t intended to be a “basis for discriminating for or against members of any particular religion.” The policy would have applied to “refugees from every nation, including those in which Islam is a minority religion,” Monday’s order stated.
Nonetheless the proposal was removed ― likely because, as immigration lawyers, political scientists, and State Department officials argued in interviews with The Huffington Post, it would have been impractical and potentially illegal to implement.
The Definition Of A Refugee
The U.S. doesn’t currently accept refugees for resettlement on the basis of religious affiliation, alone. Being a member of a religious minority may be one factor that qualifies someone as a refugee, but only if that membership has resulted in persecution.
The Office of the United Nations High Commissioner for Refugees, or UNHCR, and the U.S. State Department define a refugee as someone who has been forced to flee his or her country due to persecution, war or violence. In cases of persecution, the refugee must have a well-founded fear of being oppressed based on their race, religion, nationality, political opinion or membership in a particular social group.
Being a member of a minority faith isn’t always at the crux of religious persecution. In Syria and Iraq, for instance, the Islamic State has touted ideological reasons for terrorizing Christians, Muslims and other faith groups alike. But the militant group has actually targeted the Shiite Muslim majority most frequently. And even though it claims Sunni Muslim allegiance, the Islamic State has killed and displaced other Sunni Muslims in greater numbers than Christians, NPR reported.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
In 2016, the country with the largest share of refugees admitted to the U.S. was the Christian-majority Democratic Republic of the Congo. Of overall refugee admissions to the U.S. that year, Muslims made up 46 percent and Christians accounted for 44 percent.
The definition of a refugee stated above is widely accepted by refugee-receiving countries around the world ― and it doesn’t call out either religious minorities or members of any particular faith. If Trump wanted to prioritize Christians, ostensibly he could have pushed to change the very definition of what constitutes a refugee. But doing so would take a move by Congress, given that the U.S. signed on to the current definition in the Refugee Act of 1980.
A Legal Quagmire
Rachel Levitan, who works on strategy and planning for refugee aid organization HIAS, said “You’d have to amend the constitution” to prioritize Christian refugees for resettlement ― at least as an institutionalized policy.
There isn’t a precedent for prioritizing certain religious groups over others for resettlement. But there is a precedent for singling out certain religious and ethnic groups based on fear and xenophobia. During WWII, thousands of Jewish refugees fleeing the horrors of the Holocaust were denied entry to the U.S. based on fears of Nazi spying. Also during that time, more than a hundred thousand Japanese-Americans were forced into internment camps over paranoia that they might sabotage American war efforts.
We’re witnessing similar fears over Muslim immigration to the U.S. today.
Elizabeth Hurd, a political science professor at Northwestern University, noted that in today’s xenophobic climate, “Muslim identity is assumed to be attached to people’s political allegiances, rendering them suspect to the state.”
Trump and his aides claimed the travel ban wasn’t intended to discriminate against Muslims, but the president’s rhetoric and track-record brought the motives behind the executive order into question.
Legally, the order appeared to pose a violation to the establishment clause of the First Amendment, which says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Essentially, the government cannot enact laws that could be seen as favoring any religion over another.
As Hurd noted in an op-ed for The Washington Post, the government would have to identify who is Christian and who is not in order to prioritize these refugees, making the administration a kind of arbiter of centuries-long theological debates.
The Notorious ‘Religion Test’
Verifying a person’s religious affiliation can be simple ― as in the case of a refugee who possesses a state-issued identification card (which in many countries indicates a person’s religion.) But it can also be very complicated. If the refugee had to flee their home quickly, they might not have ID cards or other documents on hand to prove that they belong to a certain faith group and have been persecuted for it, Levitan said. In these cases, refugee and asylum officers might have to do some detective work.
“The asylum officers are trained to identify where the stories break down ― geographically, contextually, from a familial standpoint. There’s a whole set of considerations people look to,” Andrew Free, an immigration attorney in Tennessee, told HuffPost. Sometimes this focus on consistency can cost people, Free said, for instance if a person married outside their sect.
The government would end up implicitly having to define the boundaries and borders of the religion in order to decide who would be in and who would be out."
But as Megan Brewer, an immigration attorney and former asylum officer with the United States Citizenship and Immigration Services, noted: “As an officer you can never be informed enough about all the religions and subgroups.”
There may be other ways to determine a person’s faith. Depending on the country they come from, their name or clothing may indicate what religious group they belong to. “Otherwise we might ask about behavior or how they practice their religion,” Brewer said.
In some cases, religiosity may be conflated with religious expertise, as it was for asylum seekers in the UK in recent years. A nonpartisan report released last summer revealed that UK Home Office officials had occasionally taken to quizzing applicants on “Bible trivia.” Interviewers sometimes asked Christians to recite the Ten Commandments or the Lord’s Prayer, name the apostles, or explain the meaning of Lent.
Not all Christians know the answers to these questions, and not all Christian denominations emphasize this kind of knowledge. Beliefs and practices vary from denomination to denomination. Drawing any kind of line, Hurd suggested, may accidentally privilege one set of beliefs over another.
“The government would end up implicitly having to define the boundaries and borders of the religion in order to decide who would be in and who would be out,” she said.
But in practice today, the UN and the U.S. State Department are more concerned with an applicant’s likelihood of being persecuted than they are with his or her religiosity.
“In most cases … religiosity of each claimant takes a backseat to the more pressing questions of the situation on the ground in the country of origin, the credibility and documentary evidence of the story of the applicant, and the individual characteristics of each claimant that may generate persecution,” Helge Årsheim, a religious studies scholar at The University of Oslo who researches religion claims for asylum seekers, told HuffPost.
“Very few regular refugee cases turn on the question of religion alone.”