Is Australia’s India travel ban legal? A citizenship law expert explains and a critique of the ban

The lack of a charter with mobility rights compared to Canada:

There is a growing public and political outcry over the federal government’s sudden decision to ban Australians from coming home from India.

But as everyone from Indian community leaders to human rights leaders, famous cricketers and Coalition MPs calls on the government to rethink the policy, is it legal? Is a High Court challenge an option?

What is citizenship?

In terms of common law, citizenship is a relationship between an individual and their nation, where each owes fundamental obligations to the other. In broad terms, the citizen’s job is to be loyal to the nation. The nation’s job is to protect its citizens.

Last year, a record number of people pledged allegiance to Australia and became citizens. The largest group of new citizens were Indian migrants, with over 38,000 becoming Australians in 2019-20.

Now, under the Australian government’s tough new travel ban, 9,000 Australians remain stranded in India, which is currently battling a deadly COVID-19 second wave and oxygen and vaccine shortages.

Some were granted permission to travel to India to see dying relatives or attend funerals. Others travelled there pre-pandemicand have since been unable to return to Australia.

Despite having done nothing wrong, these Australians have been left unprotected by a government that has failed to hold up its end of the citizenship bargain.

How does the travel ban work?

The ban makes it unlawful for anyone, including Australian citizens, to enter Australia if they have been in India in the past 14 days. It was made under sweeping powers conferred on federal Health Minister Greg Hunt by the 2015 Biosecurity Act.

Section 477 of the act allows Hunt to issue “determinations” imposing any “requirement” that he deems necessary to control the entry or spread of COVID-19. These determinations cannot be disallowed by parliament. Thanks to a provision aptly known as a “Henry VIII clause”, they also override any other federal, state or territory law.

If a person breaches the travel ban, for instance by transiting through a third country, the Biosecurity Act states they may face criminal penalties of five years imprisonment, a $66,000 fine, or both (even if Prime Minister Scott Morrison says jail time is unlikely).

Hunt says the ban is a “temporary pause”. It will lapse on May 15. However, if he deems it necessary, he could use his broad powers to reintroduce it, or impose similar restrictions.

As political pressure builds to remove the ban early, the government says it is “constantly” reviewing it.

Is the ban legal?

Another basic principle of citizenship is citizens may freely return to their countries. Under common law, this stems from the Magna Carta. It is also an important principle of international law, enshrined in the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.

In March, two Australians stranded in the United States took their case to the United Nations Human Rights Committee. They argued government policies blocking their return contravene international law.

The committee has not reached a decision, but in April it asked Australia to ensure their prompt return, noting they faced “irreparable harm”.

What about our domestic law?

Whether the ban is legal under Australian domestic law is a different question. Although the Department of Home Affairs says Australian citizens can “apply for an Australian passport and re-enter Australia freely”, there is no codified right of return under Australian law. This sets us apart from many countries that have a bill of rights, and include this right.

A High Court challenge is an option, but there is no clear path to success.

The High Court has said little on the subject. A 1908 case suggests citizens may have a common law right to return to Australia, provided this has not been taken away by parliamentary law. The Biosecurity Act of course thoroughly displaces any such right.

Due to the deep links between citizenship and the right of return, it has been suggested citizens may have an implied constitutional right to enter Australia. There is no case law on this yet — just a single, vaguely worded sentence in a 1988 High Court case — and there are good reasons why it might be a difficult case to argue in Australia.

Implied rights must be derived from the text and structure of Australia’s Constitution, which says nothing about Australian citizenship, and little about the relationship between the government and the people, besides providing for democratic elections.

Does it breach the Biosecurity Act?

Another argument might be the travel ban is unlawful on the grounds Hunt failed to comply with the conditions for making a determination under section 477 of the Biosecurity Act.

These conditions require him to be satisfied, before imposing the ban, that it was “likely to be effective” in stopping the spread of COVID-19, “appropriate and adapted” to this purpose, and “no more restrictive or intrusive” than the circumstances required.

Importantly, it is Hunt personally who must be satisfied of these conditions. This means if he reached that conclusion on reasonable grounds, he has not broken the law, even if a different approach might have been available.

Yesterday, Chief Medical Officer Paul Kelly’s advice to Hunt in advance of the travel ban was released. Kelly’s advice emphasises the significant risk quarantine leakage poses to the Australian community and says a travel ban on arrivals from India until 15 May would be effective, proportionate and limited to what is necessary.

In light of this, it seems likely that a court would see the determination as a reasonable exercise of Hunt’s power.

Beyond the law, what about moral arguments?

But, legality aside, let’s return to the idea that Australia has a fundamental responsibility to protect its citizens. In February 2020, Hunt acknowledged this, pointing to two related national priorities: to contain the virus and protect citizens at home, and protect and support Australians abroad.

There may be circumstances in which these priorities conflict with each other. But it is hard to see the conflict in this situation. Quarantine and effective contact tracing have seen those within Australia substantially protected against COVID-19. We have not needed blanket bans on returns from the US, the United Kingdom or other countries that have experienced virus surges.

Kelly’s advice points to potential strain on quarantine, and Morrison has said the ban ensures that “our quarantine system can remain strong”. But the federal government could protect more people in Australia and abroad (not to mention ease pressure on countries experiencing COVID-19 strain), if it worked to bring citizens home while devoting more resources towards strengthening the quarantine system.

Yet the government has resisted this, despite a clear constitutional power over quarantine, the recommendations of public health experts and a national review.

Meanwhile, 9,000 Australians in India are anxiously waiting for a change to the law, which would at least legally permit them to try and return home.

Source: Is Australia’s India travel ban legal? A citizenship law expert explains

Strong commentary by Tim Soutphommasane, former Australian race discrimination commissioner, arguing against the ban:

It has come to this: a government pulling up the drawbridge on its own citizens trying to make it home. Last week’s announcement of a ban on return flights from India marks a drastic escalation of “fortress Australia”.

Yes, it isn’t the first time during the pandemic that Australia’s borders have been closed to people arriving from certain countries deemed high risk. This happened, for example, with China in February 2020.

But this new measure goes beyond a temporary closure of borders. It also involves harsh criminal penalties imposed on people seeking to return from India, including fines and even imprisonment.

There’s something seriously wrong about this. Citizenship is meant to guarantee its bearers certain rights and liberties. The right to vote. The right to expression. The right to live without interference. The right to enter one’s country.

Clearly, we can’t take our basic rights and liberties for granted. It’s no exaggeration to say that this policy undermines the very status of citizenship. The principles of democratic liberalism are under assault.

After all, citizenship means little if you can’t exercise your right to return to Australia in a time of need. Liberal democracy is diminished when your government doesn’t protect you when you’re in present or impending danger.

On every Australian passport, there is a page that bears a request of other governments and people that they “allow the bearer, an Australian Citizen, to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may stand in need”. Those words now ring hollow. How can we expect people abroad to do that, if our own government won’t do the same to its citizens?

Equal citizenship

Closer to home, this move inserts some doubts as to whether all citizens can presume they enjoy equal citizenship.

It hasn’t escaped many of us that there have been different standards of treatment given to citizens and residents returning to Australia during this pandemic. Last year, when Covid was rampaging through the United States, the United Kingdom and Europe, the government took no step to close our borders to those places, let alone impose criminal penalties on those arriving from there.

The government says it has introduced this policy based on medical advice. Yet, according to the commonwealth chief medical health officer, Paul Kelly, “no advice was given” in relation to the imposition of fines or jail terms for those seeking to circumvent the India travel ban. Moreover, numerous leading public health experts have questioned why a ban has been introduced.

It wouldn’t be the first time an Australian government has engaged in cynical racial dog whistling. As the Australian Human Rights Commission has stated, the government “must show that these measures are not discriminatory and the only suitable way of dealing with the threat to public health”. Because right now they do look discriminatory. And they are far from the only way to deal with any public health threat.

Here’s how we should be dealing with things. There remain about 35,000 Australians stranded overseas, including about9,000in India. We – and by we I mean the government that acts in our name – must act urgently to bring these Australians home, wherever they are. The way to do that is obvious: charter flights to bring them back, and create dedicated quarantine facilities across the country to make sure it happens safely.

How breathtaking it is that this hasn’t yet happened. We are more than one year into the pandemic. There has been plenty of time to think this through, make plans and deliver.

A choice between two Australias

Then again, you can understand why government hasn’t done this. This pandemic has confronted us with a choice between two Australias: between being an open, confident, internationalist country and being a closed, fearful, parochial nation. Increasingly, it seems as though people are choosing the latter.

There has been a strange acceptance of, maybe even enthusiasm for, a retreat into a hermit nation. Our politicians know all too well that closing borders and imposing lockdowns seem to bring some solid electoral payoffs: just ask Annastacia Palaszczuk and Mark McGowan.

For too many people, including those who may like to consider themselves progressive, border closures have become a fetish. It was weird enough that the pandemic was generating a competition among some premiers to close borders to other states. Now we’ve got to the point where we’re happy to have our national borders closed off to our own people and fellow citizens. At least some of them, anyway.

Covid has confirmed some timeless political truths. Amid threat, fear is a formidable beast to counter. And in tough times, minorities very rarely fare well. Covid has generated a significant rise in anti-Asian racism. Consider too, the disproportionate impact the pandemic has had on migrants and international students.

But now the government is taking things into dangerous territory. Citizenship has been the bedrock of Australia’s multiculturalism: whatever background you’re from, you can be assured formal membership of the community. This latest move signals that, in the eyes of government, some of us are more Australian than others.

Tim Soutphommasane is a political theorist and professor at the University of Sydney. He was Australia’s race discrimination commissioner from 2013 to 2018

Source: Criminalising citizens returning from India signals some are more Australian than others

For Chinese, US visa halt puts jobs, citizen hopes at risk

More impact of the travel ban on some highly skilled immigrants:

Courtney Huang fell in love with the U.S. as a nursing student in Texas. She ended up staying 13 years and wants to become a U.S. citizen.

But Huang now finds her job, future, and dreams of citizenship on the line since the Trump administration barred entry last month to non-U.S. citizens and residents flying in from China over the coronavirus outbreak.

With crucial deadlines looming, her plans look increasingly at risk.

“I’m really scared,” Huang said. “I have a lot there. If I don’t go back, it’s just going to be very difficult.”

The U.S. suspended visa processing in China on Feb. 3, citing limited staffing during the virus outbreak. No deadline extensions have been announced and it’s not known when the suspension will be lifted. That’s put hundreds of Chinese citizens applying for U.S. work visas in limbo, fretting as their jobs look increasingly at risk.

Huang had returned to China to see her parents over the Lunar New Year holiday in late January. She had recently landed a new job in California and her work visa was on the verge of approval when the American Consulate in Shanghai announced it was returning everyone’s passports.

After weeks of fretting and weighing her options at her parent’s home in eastern China, Huang flew to Thailand. She now plans to wait out a mandated 14-day self-quarantine before seeing if she can get her visa from the U.S. Embassy in Bangkok.

Though Huang was born and raised in China, her whole life is now in Oakland, California, where she has an apartment, car, friends and job. With her Christian faith and gregarious, outspoken manner, the U.S. feels like home.

“I feel like I fit in better there. Free speech, free religion,” Huang said. Clean air, better career opportunities for women and a liberal social environment were also draws, she added.

Huang obtained a nursing degree in Texas, then a master’s degree in bioengineering from U.C. Berkeley. She’s on the verge of completing an M.B.A., with an eye toward settling permanently.

Now, Huang is concerned those plans could fall apart. Though her new employers, a company that provides clinical support for physicians, are understanding, Huang worries that as the months go by, there’s a possibility she may lose her job — and with it, her right to work in the U.S.

Like Huang, Kevin Yang, a Chinese doctoral student researching immunology at an American university, is also reconsidering his options. After moving to the U.s. eight years ago, Yang has returned home each winter holiday and had his student visa renewed without a hitch.

This year, though, Yang became one of many Chinese citizens caught up in the brutal tussle between Beijing and Washington over trade and technology.

When Yang applied for a visa in December, the State Department told him it was being delayed while they investigated his background for ties to the Chinese government. American officials have in recent years grown alarmed over the alleged theft of U.S. technology by China, casting a cloud of suspicion on Chinese citizens like Yang who work in the sciences.

Told the check would take four weeks, Yang changed his flights and prepared to stay longer.

Then in late January, the Chinese government began locking down whole cities to contain the virus. Soon after, Trump announced the U.S. travel ban. Yang got his passport back in the mail with no visa.

American officials told Yang’s academic adviser that since Yang no longer had a visa, they could no longer pay his stipend or fund his research with federal grant money. Hospital surveys that Yang said he spent “thousands of dollars and thousands of hours” over two years to set up were now in peril, something he described as a crushing blow.

“Maybe it’s time for me to start thinking about an alternative career,” Yang said, mulling the possibility he won’t be able to finish his Ph.D. “It’s like restarting my life.”

Discouraging high-skilled foreigners from immigrating could undermine the U.S. economy and its global prominence, said Anastasia Tonello, former president of the American Immigration Lawyers Association.

Nearly 2.5 million Chinese were in the U.S. as of 2018, according to the nonpartisan Migration Policy Institute, and most are significantly better educated than the average American. China is also the main source of foreign students enrolled in U.S. higher education.

While health and safety are legitimate concerns, blanket travel bans aren’t the answer, Tonello said.

“I just don’t think this was thought through,” she said. “These are just such broad strokes and can cause so much damage.”

The U.S. isn’t the only country currently restricting entry from China. Travelers face restrictions across the globe, from neighboring North Korea to far-flung New Zealand, Somalia, and Guatemala. Australia, a major destination for Chinese students and immigrants, also has banned arrivals and stopped issuing visas.

Such restrictions have been loudly criticized by China’s Foreign Ministry, though Beijing frequently singles out the United States.

Yang and Huang both say they understand why a travel ban could help contain the virus. But they say the U.S. halt on new visas — with no deadline extensions or other accommodations — is frustrating and unreasonable.

Even more frustrating for Huang is the sense that the U.S. is trying to bar her from coming back.

“I’m not being respected. I work in the states as a talent; I pay my taxes diligently,” Huang said. “This just makes me feel like, ‘Oh, maybe I’m just not welcome in the states.’”

Even for Chinese with visas, the clock is ticking. Tom, a programmer from the epicenter of the outbreak, the city of Wuhan, had just obtained a master’s degree in computer science from Emory University in Georgia. He has a U.S. visa but got stuck in Wuhan after the city was quarantined.

Under American law, foreign students have 90 days after graduation to start new jobs if they want to stay and work in the U.S. If Tom is still trapped in Wuhan by May, he’ll lose both his new job at Amazon and his chance to work in America altogether.

“I’d have to start all over again,” Tom said, declining to provide his last name for fear it could affect his visa and career prospects. “I just worry every day about whether I can go back to America.”

Tom says his family spent around $70,000 to send him to Emory for a shot at a better life in the U.S. He didn’t want to work in China, deterred by the Chinese tech industry’s notoriously-long hours, popularly known as “996” –9 a.m. to 9 p.m., six days a week.

U.S. officials told him there was nothing he could do.

“We just want some help or advice,” Tom said. “Please don’t ignore us, it’s something completely out of our control. That’s the worst thing.”

Source: For Chinese, US visa halt puts jobs, citizen hopes at risk

Donald Trump’s latest travel bans are cruel and senseless – and an opportunity for Justin Trudeau

Of the African countries included in the ban, immigration to Canada has increased for all of them 2015-19 (till November): Nigeria (4,090 to 11,175), Eritrea (2,210 to 6,555), Sudan (335 to 1,200) and Tanzania (150 to 200). So hard to see Kusmu’s case for “measures to directly increase immigration to Canada from those countries” given that it is already happening.

I am not sure about whether this would actually play a positive role in gaining African support for the Canadian Security Council bid, given that this is essentially a brain drain from Africa to Canada:

Understanding the news that came from the White House on Jan. 31 was an exercise in cognitive dissonance.

Earlier that day, President Donald Trump proclaimed February as National African-American History month. “Through bravery, perseverance, faith and resolve – often in the face of incredible prejudice and hardship – African-Americans have enhanced and advanced every aspect of American life,” he said.

But just a few hours later, his administration announced the latest round of travel bans, which will affect four African countries – Nigeria, Eritrea, Sudan and Tanzania – that contain nearly a quarter of the continent’s entire population (a continent he previously referred to as containing “shithole” countries). The various restrictions – the suspension of visas for people sponsored by family members and, for some, green card (i.e. diversity visa program) applications – go into effect on Feb. 22.

The Trump administration cites national-security concerns for those bans, including potential slips of aging identity-management systems and overall “elevated risk and threat environments”; past White House officials and current legislators have called the bans nonsensical and cruel. Indeed, those issues offer the government thin cover to arbitrarily target potential immigrants, most of whom are free to apply for a temporary visitor visa (which would theoretically nullify any security precautions) but are barred from the labour-intensive process of applying for an immigration visa that often requires years of intense vetting.

So if security seems like an unlikely motive for the administration’s latest move, what is? While there is some speculation it may be a play for diplomatic bargaining chips with those countries, the more probable motivator is Mr. Trump’s anti-immigration base as a presidential election looms. Unlike the 2017 Muslim ban, which garnered widespread condemnation and scrutiny, a craftier approach – targeting mostly African nations under the pretense of national security – has been adopted. (Myanmar and Kyrgyzstan were also included in this round of bans.)

What Mr. Trump and his supporters may not realize (or, more likely, care about) are the economic and moral consequences of this decision. Banning immigration from Nigeria, one of Africa’s fastest-growing and most dynamic economies, would essentially close America off to a demographic that has proven to be some of its most educated and, with it, direct access to what Newsweek named a growing global “economic superpower” – ironically, on the same day the bans were announced.

The graver implication is that this policy will bring ruin to the lives of the more than 12,000 potential immigrants expected to apply next year and the thousands more relatives and loved ones. The fact that families who are awaiting to permanently reunite with their aging parents or their distant partners on American soil will know that this is impossible, at least for now, is heart-wrenching. To make matters worse, Eritrea and Myanmar (where the Rohingya population is under threat of genocide) are experiencing outsize refugee crises, demonstrating yet again the cruelty of this measure.

Countries continue to erect walls against migrants, from the United States to Greece, which recently announced a (widely ridiculed) plan to create a floating barrier to block refugees on boats. Leaders continue to employ racist rhetoric; Mr. Trump, for instance, previously cited concerns that Nigerians visiting the U.S. would never “go back to their huts” in Africa. And this represents an opportunity for Canada and Prime Minister Justin Trudeau.

Canada will likely witness a large increase of immigration applications from the countries affected by Mr. Trump’s ban. As a country, we will be all the better for such waves, particularly since the infusion of new Canadians can help us offset the challenges that come with our increasingly aging population. And so Mr. Trudeau can counter Mr. Trump’s rhetoric and policies by announcing measures to directly increase immigration to Canada from those countries. If nothing else, it could serve as a last-minute rallying point to bolster his government’s campaign for a seat on the United Nations Security Council, especially as he embarks on an outreach tour of Africa this month.

But perhaps, more poignantly, this move could serve as a much-needed act of atonement to Canadians of African descent, for whom the memories of Mr. Trudeau’s blackface scandal from the 2019 federal election campaign are still fresh. Just as Mr. Trump’s Black History Month actions were telling about his government’s approach, there might be few better ways for Mr. Trudeau to signal his support of Black History Month in Canada this year.

Source: Donald Trump’s latest travel bans are cruel and senseless – and an opportunity for Justin Trudeau: Petros Kusmu

ICYMI: African Immigrants May Be Trump’s Next Target

Of note, with possible impact on future asylum seekers in Canada:
Last week, Politico reported that the Trump administration was considering adding seven new countries to its travel ban. A majority of them—Eritrea, Sudan, Tanzania, and Nigeria, which is by far the most populous of the seven—are in Africa. The rationalization appears to involve terrorism. In the “counterterrorism” section of a January 17 speech, Chad Wolf, the acting secretary of the Department of Homeland Security, declared, “We’re establishing criteria that all foreign governments must satisfy to assist DHS in vetting foreign nationals seeking to enter our country … For a small number of countries that lack either the will or the capability to adhere to these criteria, travel restrictions may become necessary to mitigate threats.”Because the Supreme Court upheld Donald Trump’s travel ban in 2018 on national-security grounds, it’s not surprising that administration officials would cite that same rationale to expand the ban now. But the argument is weak. According to numbers crunched by the Cato Institute’s Alex Nowrasteh when Trump first imposed the ban three years ago, not a single person born in Eritrea, Tanzania, Nigeria, or Sudan killed a single American in a terrorist attack on American soil from 1975 to 2016. (The same is true of Belarus and Myanmar, two of the other three countries Trump may add to the travel-ban roster. Two people from Kyrgyzstan, the final country, were implicated in deadly anti-American terrorism incidents during the period, according to Nowrasteh’s tally.)
A Wall Street Journal article on the potential travel-ban expansion suggests a different justification: Travelers from Eritrea, Sudan, and Nigeria are more likely than travelers from other countries to overstay their visas. But if that’s the case—as Tom Jawetz, an immigration expert at the Center for American Progress, explained to me—the answer is to train the U.S. consular officers who give out those visas to better determine who won’t return home, or to actually increase visas to meet legitimate demand. The answer is not to collectively punish the population of an entire country.But if the Trump administration’s real motivation is to decrease immigration from Africa, then collective punishment has a certain logic to it. For several years now, Trump has trained his nativist ire on Muslims and Latinos. The travel ban suggests he’s adding a new target, just in time for the 2020 elections: Africans.According to the Pew Research Center, the number of black immigrants in the United States has grown fivefold over the past 40 years. America’s immigrant population from sub-Saharan Africa more than doubled from 2000 to 2016 alone. Trump’s allies have noticed. In her book Adios America, which Trump publicly praised, and parroted, when he launched 2016 campaign, Ann Coulter claims, “There were almost no Nigerians in the United States until the 1970s. Today there are 380,000.” This is a problem, she declares, because “in Nigeria, every level of society is criminal.” When 500 Congolese and Angolan immigrants showed up at the Texas border last June, Tucker Carlson warned that, because of “population growth … on the continent of Africa,” African immigration “could become a torrent” that could “overwhelm our country, and change it completely and forever.”

Trump himself, according to The New York Times, vented in a 2017 Oval Office meeting that on his watch the United States had admitted 40,000 Nigerians who would never “go back to their huts.” (Nigerian immigrants are actually twice as likely to have at least a bachelor’s degree as Americans as a whole.) During an immigration meeting in 2018, The Washington Post reported, Trump referred to Haiti, El Salvador, and nations in Africa as “shithole countries.” Soon afterward, the White House unveiled a proposal to remake America’s immigration system. According to the Center for American Progress, it would have reduced immigration from sub-Saharan Africa by 46 percent, more than any other region of the world.

But while Trump’s animosity to African immigration isn’t new, it has never before taken center stage in his administration’s policies or his public rhetoric. Trump launched his 2016 presidential campaign talking about Mexican rapists. He made building a wall on America’s southern border his campaign’s rallying cry. He responded to the December 2015 jihadist attack in San Bernardino, California, by demanding a ban on Muslim immigration. He made Central American immigrant “caravans” the heart of his get-out-the-vote strategy in 2018.

So Trump is diversifying his array of immigrant threats. Singling out African countries could spark a public battle with the Congressional Black Caucus, Somalian-American Representative Ilhan Omar, and African American celebrities—just the sort of foes who rouse Trump’s base. Expect presidential tweets and Tucker Carlson monologues about Nigerian email scammers and crime rates in Lagos. In Trump’s ceaseless battle to terrify Republicans with the specter of an America no longer controlled by white men, a new front may be opening up.

Source: African Immigrants May Be Trump’s Next Target

The Supreme Court Overturned a Ruling That Enabled Internment of Japanese-Americans During World War II

The one bit of good news in the SCOTUS travel ban ruling:

In Tuesday’s majority opinion upholding President Donald Trump’s travel ban, the Supreme Court also overturned a long-criticized decision that had upheld the constitutionality of Japanese-American internment during World War II.

Justice Sonia Sotomayor had mentioned the 1944 case, Korematsu v. United States, in her dissent, arguing that the rationale behind the majority decision had “stark parallels” to Korematsu; in both cases, she argued, the government “invoked an ill-defined natiounal security threat to justify an exclusionary policy of sweeping proportion.”

Writing for the majority, Chief Justice John Roberts argued that the case was not relevant to the travel ban, but went ahead and wrote that it is now overturned.

“The dissent’s reference to Korematsu … affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution,’” he wrote.

Korematsu arose out of President Franklin Delano Roosevelt’s 1942 executive order mandating that Japanese Americans leave their homes and jobs for internment camps. Over 117,000 Japanese were ultimately removed from their homes. Civil rights activist Fred Korematsu, who died in 2005, challenged his interment, but the Supreme Court ruled that his detention was a military necessity.

Parallels between Japanese interment and the Muslim ban had been highlighted before Tuesday’s ruling. Fred Korematsu’s daughter Karen, who now runs a civil liberties institute in his name, had filed a friend of the court briefing against the travel ban, and argued in aWashington Post op-ed last December that the policy “just as unfair” as Japanese internment.

“Korematsu is a reminder that while we may sometimes be afraid during times of crisis, fear should not prevail over our fundamental freedoms.,” she wrote at the time.

Both liberal and conservative justices have criticized the Korematsu decision in the past, but it was never formally overturned.

In 1995, liberal Justice Ginsburg wrote in a dissent that “a Korematsu-type classification … will never again survive scrutiny,” conservative Justice Antonin Scalia said in a speech that it was wrong but warned that it could happen again. “In times of war, the laws fall silent,” he said.

In the majority opinion Tuesday, Roberts quoted from Supreme Court Justice Robert Jackson’s famous dissent in Korematsu.

Jackson, who later served as a chief prosecutor for the U.S. in the Nuremberg trials of Nazi war criminals, argued that the majority decision upholding internment would set a bad precedent.

He noted that a military order would eventually lapse, but a judicial opinion would validate racial discrimination by creating new principles to justify it.

“The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need,” he wrote.

After a terrorist attack in San Bernardino, Calif., during the 2016 campaign, Trump called for a ban on Muslims entering the United States, comparing it to Roosevelt’s executive order authorizing internment. In a later interview with TIME, he would not unequivocally repudiate the internment camps.

“I certainly hate the concept of it. But I would have had to be there at the time to give you a proper answer,” he said.

Recently, Trump Administration attorneys favorably invoked Hirabayashi v. United Statesin a legal briefing on a case involving Guantanamo Bay detainees, a World War II-era decision which was a basis for Korematsu.

Source: The Supreme Court Overturned a Ruling That Enabled Internment of Japanese-Americans During World War II

Trump’s Travel Ban Puts America’s Brain Drain in Hyperdrive

While the headline overstates, there will be an ongoing and longer-term impact:

On Monday, for the first time ever, Tara Yasseri was turned down for a U.S. visa to attend the prestigious International Conference on Computational Social Science at Northwestern University.

Why? Because, he said, he’s Iranian.

A senior research fellow in computational social science at the University of Oxford, Yasseri’s work on big data and election predictions has brought him around the world, including to the U.S. just this past March. But American politics finally got in the way. He said that a consulate officer explained to him that President Donald Trump’s so-called travel ban had made his requests to get to the campus in Evanston, Illinois, more complicated than usual.

“I appreciated his honesty,” Yasseri told The Daily Beast. “To be honest, I’ve been lucky in that I’ve always been granted a [single-entry] visa.”

Stories of upended travel, aborted education plans, and stymied research projects are becoming more common in the world of Science, Technology, Engineering and Mathematics (STEM) and academia. And they may soon become even more so.

On Tuesday, just one day after Yasseri’s visa request was denied, the Supreme Court ruled in Trump v. Hawaii that the president’s travel ban—in place even while under legal challenge—was, indeed, constitutional. The decision meant the policy will remain in place. And it left academics and scientists fearful that the United States may witness a drain of intellectual talent in the coming years.

Handed down by a 5-4 majority, the ruling prohibits citizens from seven countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—from entering the country due to the “national security threat” they supposedly pose.

Critics had argued that the policy was fundamentally racist as it was built on the foundation of Trump’s campaign pledge to stop all Muslims from entering the United States. But over the course of his presidency, Trump narrowed down the policy, including by adding two non-Muslim majority countries to the list.

That proved enough to negate the constitutional concern. But those in the STEM fields say that the practical impact of the ban will be the same as the original incarnation.

“We’re deterring people from coming here,” said Vivek Wadhwa, a professor of entrepreneurship at the Pratt School of Engineering at Stanford University. “America is now considered hostile to foreigners. Before they can even want to come, they’re turned away.”

The ripple effects of that hostility could be profound, Wadhwa predicted. In the 2012 paper he co-authored, titled “America’s New Immigrant Entrepreneurs: Then and Now,” Wadhwa noted that more than a quarter of American engineering and technology startups were founded by immigrants and that in Silicon Valley, nearly half of startups are immigrant-founded. When it came to patents, more than 60 percent of filings were done by immigrants; over 40 percent of international patent applications on behalf of the American government included an author who wasn’t an American citizen.

The travel ban could fundamentally change the American economy by drying up that source of innovation.

“With this brain drain happening, we’re arming our competitors in China and South America with the greatest threat to American security,” said Wadhwa. In particular, there’s the fact that “we’ve been training the smartest students from China and sending them back home,” he said. “China is catching up to America in artificial intelligence and gene editing and robotics. We never thought China would be able to compete with the U.S. but China is on par with the U.S. right now.”

Even before the Supreme Court’s decision on Tuesday, the effects of the ban were become evident in a variety of fields. Dr. Atul Grover, the executive vice president of Association of American Medical Colleges, said that over the preceding year, there had been about a 22 percent drop in the number of people requesting a student visa from the seven countries on the president’s list.

“For a one year difference that is pretty significant,” Grover said.

But, he added, the actual impact is likely to be even more severe. He expected prospective medical students from countries not on the current list to balk at applying to schools in the United States out of fear that their nations may be added by Trump at a later date. In addition, students with spouses from countries currently under the ban would have to weigh the possibility of splitting up their family if they choose to study in the United States.

“We are already looking at a physician shortage,” Grover said. “While we have increased the number of graduates from U.S. medical schools, we are still reliant on international graduates to serve people, particularly in underserved areas. That will be harder and harder to fill these positions if we have fewer applicants. Or it may be that these applicants are as qualified as they are in the past. We’ve had our choice of the best and the brightest in the past. But now, people might look elsewhere.”

Under the travel ban, individuals from the seven targeted countries can still apply for, and be granted, student and exchange visas. But the incentives for requesting each are greatly diminished. Progress in STEM fields take an immense amount of work and time, from producing the research, to building a company, to seeking investment of capital. If a ban or the threat of deportation holds, that incentive to stay in the country is diminished.

This will impact both those here and those seeking to come. According to data provided by the Institute of International Education, there were 25,751 students from the seven banned countries who studied in the United States during the 2016-17 calendar year. Advocates expect that number to diminish and those students to look abroad for career opportunities.

Meanwhile, the Department of Justice reported that the number of visas issued by the to students from Iran, Libya, Yemen, and Somalia in the first three months of this year was just 298. “This is less than a quarter of the volume needed to be on track for 2016 student visa levels,” the last full year before the ban took effect, Justice Stephen Breyer noted in his dissenting opinion.

Educators, likewise, will face diminished incentives to work at, or even collaborate with, U.S. institutions. In Yasseri’s case, the inability to attend the conference at Northwestern was a major professional setback, depriving him the opportunity to present groundbreaking research, network with others in the field, and participate in a conference that he helped coordinate and plan.

It’s one of the reasons why Yasseri—who is set to become a British citizen by the end of the year—said he has never entertained the United States as a potential research destination. He left for Europe 12 years ago from Iran, and while many of his friends went to the America, he found the single entry visas students had to deal with cumbersome. “If they left the country, they had to reapply for a visa,” he pointed out. “I didn’t want to be trapped in a single country.”

So Yasseri went around that. He earned his Ph.D. in Germany and is conducting research in the United Kingdom. With a British passport, he thinks traveling to the United States might become easier, and he might even look into doing a sabbatical in the U.S.

But settling in America permanently remains out of the question.

“Even if I got a visa, my family would not be able to visit,” Yasseri said.

Source: Trump’s Travel Ban Puts America’s Brain Drain in Hyperdrive

Toronto runner set to get Canadian citizenship, trump U.S. travel ban

Good news story:

It appears Soroush Hatami’s dream to compete in the Boston Marathon is finally about to come true.

“That’s exciting news … There’s a high possibility I can get my passport right on time and I hope I can make it to Boston,” Hatami said.

The 37-year-old, who emigrated from Iran to Toronto in 2013 and is a permanent resident of Canada, is set to receive his Canadian citizenship on Friday afternoon.

It would help clear a major hurdle that has barred him from entering the United States.

Marathon runner stopped in his tracks by Trump travel ban

U.S. Supreme Court allows Trump travel ban on residents of 6 mostly Muslim countries

Last January, an executive order issued by U.S. President Donald Trump blocked citizens of several Muslim-majority nations from entering the United States — including Hatami’s birth country of Iran.

Despite qualifying for the Boston Marathon back in October 2017, Hatami was banned from entering the U.S., based on his Iranian citizenship; a decision he calls “unfair” and “xenophobic”.

With over 30,000 runners annually, the Boston Marathon is one of the most prestigious and well-known marathons in the world. (Tim Bradbury/Getty Images)

“Targeting countries and banning everyone from those countries, doesn’t help with U.S. national security,” Hatami said.

But now, with the runner set to take the oath of citizenship after a months-long application process, he’ll be able to apply for a Canadian passport. According to the Government of Canada’s website, with express processing a new passport can be delivered in two to nine business days.

2018’s Boston Marathon is set for April 16.

Beyond the race, Hatami and fellow long-distance runner Daniel Sellers say they aren’t done fighting against the travel ban and hope to help those who may be caught in similar predicaments.

“That’s great that we’re about to realize our goal. However on the other side, the travel ban is not over and our campaign is not over.”

via Toronto runner set to get Canadian citizenship, trump U.S. travel ban – Toronto – CBC News

Canadian schools abandoning U.S. trips because of Trump ban

Multiculturalism, inclusion and solidarity – making a conscious choice to avoid exclusion:

Toronto parent Katie Lynes said she has heard disappointment among families about the cancellation of school trips, but there is also unease about events in the U.S. and elsewhere.

The TDSB travel ban mostly affects music students at her daughters’ school in north Toronto. The music teacher usually organizes trips to New York and Chicago, and is now considering options within Canada.

“Our board, and our school, is multicultural and inclusive, so the idea of certain kids potentially being stopped at the border or turned away does not sit well,” Ms. Lynes said. She added: “Disappointment over cancellation of trips is something that kids and families should be able to handle, especially when they realize that it’s in the service of larger principles, such as equity, inclusiveness and fairness.”

At Westmount, Ms. Jafralie, an ethics and religion teacher, said discussions about changing the itinerary allowed for a learning opportunity for her students. She and her students were disappointed that they wouldn’t visit the American sites, but not upset enough to leave classmates behind.

“We have a diverse population and we embrace our diversity. We’re just not willing to take the risk. We’re just not willing to break us all up,” she said.

Source: Canadian schools abandoning U.S. trips because of Trump ban – The Globe and Mail