President Trump’s travel ban proclamation states that the Department of Homeland Security (DHS) developed a global baseline for visa vetting that all governments must meet before their nationals can travel to the United States. The proclamation states that the president then applied DHS’s baseline to all countries and then restricted travel to all those that failed them. This explanation is untrue.
DHS created nine baseline criteria grouped into three categories (see the Appendix for a detailed explanation of each one). Here they are:
- Category 1: Identity management: 1) Use of electronic passports embedded with data; 2) Reports lost and stolen passports; 3) Makes available upon request identity-related information.
- Category 2: National security information: 4) Makes available terrorist and criminal information upon request; 5) Provides identity document exemplars; 6) Allows U.S. government’s receipt of information about passengers and crew traveling to the U.S.
- Category 3: Risk indicators: 7) Is a known or potential terrorist safe haven; 8) Is a participant in the Visa Waiver Program that meets all of its requirements; and 9) Regularly fails to receive its nationals subject to final orders of removal from the U.S.
The proclamation states that the president then applied the DHS baseline to every country and banned all those—and only those—that fail its criteria. This never happened.
Despite statements to the contrary, the proclamation admits that the president did not ban all countries that failed the requirements and did ban others that met them. It applies higher-than-the-baseline criteria to the countries on the list, but never applies those more stringent criteria to other countries that remained off the list. The president’s proclamation also applies mitigating factors to avoid banning every failing country but then didn’t apply those new mitigating factors to the other banned countries. Even when applying all of these additional criteria, no set of failed or met factors can explain the proclamation’s choices of which countries to ban. The travel ban simply lacks an objective grounding.