The GOP presidential candidate on Monday called for a “total and complete shutdown” of Muslims entering the United States, including immigrants, tourists and even Muslims who are U.S. citizens and travel abroad. His plan to bar U.S. citizens drew particular ire from legal experts, some of whom fumbled for words as they tried to explain its illegality, since none had considered the matter before.
“That’s blatantly unconstitutional if it excludes U.S. citizens because they are Muslims. It’s ridiculous,” said Richard Friedman, a law professor at the University of Michigan. He cited the U.S. Constitution’s equal protection clause and the First Amendment’s doctrine of freedom of religion.
Barring Muslims who are not U.S. citizens from entering the country may not violate U.S. law in the same way, the experts said, because the Constitution’s protections generally do not apply to people outside the nation’s borders. But that’s irrelevant, they said, because Trump’s plan would break many principles of international law and agreements the U.S. has signed with other nations.Rebecca Kaplan reports at CBS:
There are many forms non-U.S. citizens abroad file to seek temporary or permanent immigrant visas, and none require disclosure of religion. Similarly, immigrants who have been legally admitted to the U.S. and are looking to become permanent residents are also not asked about their religion.
That omission is no mistake. A 2012 U.S. Citizenship and Immigration Services policy memorandum instructs immigration officers, "Avoid questions about a person's religious beliefs or practices unless they are relevant to determine the individual's eligibility for a benefit. Do not make any comments that might be taken as a negative reflection upon any other person, race, religion, or country."
If an immigration official asks about an immigrant's religion and then uses the answer as the basis for denial of relief, "that could be a constitutional violation," Greg Chen, the director of advocacy at the American Immigration Lawyers Association, told CBS News. This comes into play especially in cases when immigrants have already been legally admitted to the U.S. because, says Chen, a court could find that their equal protection rights have been violated.