Despite the TRO, the Legal Arguments Against Trump's Immigration Order Are Iffy

The travel ban is unfair and illogical, but that does not make it illegal.


U.S. Courts

When Sally Yates, then the acting attorney general, refused to defend President Trump's executive order suspending the U.S. Refugee Admission Program and blocking the entry of travelers from seven Muslim-majority countries, she said she wasn't sure the new restrictions were legal, but she didn't say why. Likewise James Robart, the federal judge in Seattle who last Friday issued a temporary restraining order (TRO) prohibiting enforcement of the travel ban. This reticence reflects a reality that will not please opponents of the order who want it to be illegal as well as unfair and unwise: The president has very broad authority to restrict admission to the United States, while foreign nationals have no right to a visa or refugee status.

Legal permanent residents have stronger claims, but they supposedly are no longer covered by the travel ban. I say "supposedly" because green-card holders from the seven countries Trump picked—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—arguably are still covered by the order, even if they presumptively qualify for waivers. Then again, Nathaniel Gorton, a federal judge in Boston who upheld Trump's order on the same day Robart issued his TRO, concluded that the language of the travel ban does not apply to legal permanent residents, even though the Trump administration initially said it did.

The complaint that resulted in the TRO, which was filed by the states of Washington and Minnesota, cites 10 causes of action, including equal protection, due process, and religious freedom claims. In approving the TRO, Robart concluded (among other things) that the plaintiffs are "likely to succeed on the merits," but he gave no indication of which arguments he found most persuasive. Josh Blackman, a professor at South Texas College of Law, highlighted the skimpiness of Robart's seven-page ruling in an interview with The New York Times. "Does the executive order violate the equal protection of the laws, amount to an establishment of religion, violate rights of free exercise, or deprive aliens of due process of law?" Blackman asked. "Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper."

Gorton's ruling is three times as long as Robart's, and it marshals considerable evidence to support the view that the executive order is well within the president's powers, starting with this provision of the Immigration and Nationality Act (INA): "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

That power, Washington and Minnesota argue, is limited by another provision of the INA that says "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence." The Trump administration argues that "pausing then resuming visa applications" based on nationality does not qualify as discrimination "in the issuance of" immigration visas. Even if that's a stretch, this provision does not help refugees, students, tourists, or other travelers using nonimmigrant visas.

Several of the lawsuit's other claims also have limited application. "Where Congress has granted statutory rights and authorized procedures applicable to arriving and present non-citizens," the complaint says, "minimum due process rights attach to those statutory rights." Even if accepted, that claim would not help people outside the United States seeking permission to enter it. Similarly, Washington and Minnesota argue that the INA gives would-be refugees a right to seek asylum once they arrive in the United States, meaning it is illegal to remove them without a hearing. That claim would not help the vast majority of refugees, since you must be on U.S. soil to seek asylum. Washington and Minnesota's claim under the Foreign Affairs Reform and Restructuring Act, which says "the United States may not involuntarily return any person to a country where there are substantial grounds for believing the person would be in danger of being subjected to torture," likewise would not apply to refugees who have not made it to the U.S. yet.

The claims with broader implications tend to be shakier. Washington and Minnesota argue that Trump's order violates the Establishment Clause by favoring Christians over Muslims. It is true that the vast majority of people affected by the travel ban are Muslim and probably true that preferences for religious minorities in the admission of refugees will mainly benefit Christians (which according to Trump is the intent). But the order is framed in religiously neutral terms, and it has no effect on the vast majority of Muslim travelers (those who are not refugees and do not come from any of the seven covered countries).

Washington and Minnesota cite Trump's history of calling for "a total and complete shutdown of Muslims entering the United States," a proposal that evolved into the order issued on January 27. Comments by Trump and his adviser Rudy Giuliani suggest the changes were aimed at making the policy less controversial and more likely to pass legal muster. Those comments arguably show the order is a Muslim ban by another name, still motivated by animus against a particular religion. Yates, who in the letter laying out her position on the order alluded to "statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order's purpose," seems to think so. But to accept this argument, courts would have to speculate about Trump's motives, which they may not be willing to do in the context of an order that is ostensibly aimed at protecting national security.

Washington and Minnesota argue that the executive order violates the Fifth Amendment's guarantee of equal protection (implicit in the Due Process Clause, according the Supreme Court) by targeting travelers based on their national origin or religion. But in the immigration context, the standard of review for equal protection claims is highly permissive. "Because the [executive order] involves federal government categorizations with respect to non-resident aliens," Gorton writes, "rational basis review applies." Under that highly deferential standard, a challenged policy passes muster as long as it is rationally related to a legitimate government purpose, a test that pretty much guarantees the policy will be upheld. "Under rational basis review," Gorton notes, quoting the Supreme Court, "a classification is permissible 'if there is any reasonably conceivable state of facts that could provide a rational basis.'"

Robart's comments during a hearing on Friday suggest his version of the rational basis test is more demanding. "When Robart asked the DOJ's Michelle Bennett how many foreign nationals of the seven countries targeted by the ban had been arrested on domestic terrorism charges since 9/11," reports The Stranger's Sydney Brownstone, "Bennett told the court she didn't know. Robart informed her that the answer was none." [His actual words, per a Seattle Times video of the hearing: "The answer to that is none, as best I can tell."]

That is not quite right. According to a review by Cato Institute immigration analyst Alex Nowrasteh, "six Iranians, six Sudanese, two Somalis, two Iraqis, and one Yemini" were "convicted of attempting or carrying out terrorist attacks on U.S. soil" from 1975 through 2015. Nowrasteh says at least half a dozen of those cases happened after 9/11. It is true, Nowrasteh says, that "foreigners from those seven nations have killed zero Americans in terrorist attacks on U.S. soil between 1975 and the end of 2015." That remained true last year, although there were two less serious attacks by people with Somali backgrounds. In September a Somali-American named Dahir Adan was shot and killed after attacking shoppers with a knife at a mall in St. Cloud, Minnesota. Ten people were injured. In November a Somali refugee named Abdul Razak Ali Artan was shot and killed after ramming people with his car and stabbing them with a knife at Ohio State University in Columbus. Thirteen people were injured.

While Robart overstated the case, it is accurate to say that people from the countries covered by Trump's order have been responsible for only a small share of terrorist activity and no deadly attacks in the United States, which casts doubt on the logic of his criteria. "You're here arguing on behalf of someone who says we have to protect the U.S. from these individuals coming from these countries, and there's no support for that," Robart told Bennett. Bennett replied that it's for the president to decide whether there is empirical support for his policy, and "the court doesn't get to look behind those determinations." To the contrary, Robart said, rational basis review means "I have to find fact as opposed to fiction."

I wish rational basis review meant that, but it is usually enough for the government to proclaim its good intentions. Trump's lawyers argue that the president is trying to protect Americans from terrorism, and the courts have no business second-guessing the means he chooses. If the rational basis test applies, the appeals court that reviews Robart's rulings probably will agree.

[This post has been revised to clarify what Robart got wrong about terrorism arrests.]

Addendum: Writing at The Volokh Conspiracy, Ilya Somin argues that Trump's order is unconstitutional because it discriminates against Muslims. Somin notes that "the Supreme Court has long recognized that a seemingly neutral regulation qualifies as unconstitutional discrimination if the true purpose behind it is in fact to target a specific racial, ethnic, or religious group." He adds that Trump will have a hard time showing a nondiscriminatory purpose because "the security rationale for the order is laughably weak."

NEXT: Trump Sparks Weekend Freakout Over How Morally Superior America Is

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  1. Clearly he’s a “so-called judge”. Why just look at that bow tie.

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  2. Thank you, Mr. Sullum. This is an extremely good article that cuts through a lot of the obfuscation a lot of your colleagues were pushing over the weekend. And it is an extremely welcome addition to the conversation.

    I’m split on the substance of the EO. I’m not even particularly sure the INA allows Trump to issue the ban without Congressional approval. But, when I run into arguments against it that I know are playing fast and loose with both logic and the facts, I find myself more inclined to support it.

    1. “When I run into arguments against it that I know are playing fast and loose with both logic and the facts, I find myself more inclined to support it.”

      That’s how I feel about basically everything Trump does. The arguments against many of his actions have so far been somehow even more idiotic and illogical than Trump’s actions to begin with.

    2. My reading of the INA shows that it gives the president and other secretaries in the executive branch broad discretion.

      The problem with Judge Robert is that he tossed out a list of tests written and Congress and replaced them with his own tests. He does not get to rule on the wisdom of decisions, only on their legality.

    3. INA allows latitude through AG and DHS. If they disagree, Trump fires them. He already fired the AG – she was certainly not going to be rehired – so that leaves Director of DHS. That person will likely be let go if they have not been already.

  3. How,do,the states possibly have standing to,bring the case in the first place?

    Or is this creating the precedent that standing no longer matters?

    1. Apparently they are arguing that they have standing as “parents” of their residents, for people who cannot as yet be residents of those states.

    2. The NY Times article brought this issue up and said that the argument being made is that the states are injured because some of these immigrants will be working within their borders and due to this EO, they will not.

      1. That’s a loophole big enough to give standing to anyone on anything.

      2. Aren’t these the same people that thought that was irrelevant for the Arizona suit to enforce immigration checks despite the fed’s deprioritization?

        I guess harming immigrants = bad, harming US citizens = good in the mind of the NYT. Pick a side already, either the state has standing on immigration law and enforcement or it doesn’t regardless of the desired outcome.

  4. This may just be a layman’s reading of the law, but it seems to me that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” is a clause that is to be in force all else being equal, otherwise there is absolutely no way that a presidential determination on a class of aliens can be enforced. Thus nondiscrimination is a baseline for the bureaurcracy, and a determination to the contrary can be made “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States”.

    1. I am not sure how it squares with preferential treatment for refugees, though. As all those categories are relevent in determining ehether they are persecuted.

  5. Why, two excellent articles by Sullum in a row? It’s almost as if it’s the norm rather than an exception.

  6. Isn’t the Libertarian position on immigration to be, like all other policies, as lax as possible? So, a Libertarian favors individual vetting, but not broad-based bans that drive more governmental intrusion?

    1. I just have a hard time getting worked up over a 90 day pause in travel from jihadiville. 90 days. The ban seemingly even allows for exceptions. If you visited any of those 7 countries, and walked the streets you wouldn’t make it through a day.

    2. The ban is temporary while the procedure for individual vetting is improved from the nothing state it currently exists in.

      Nobody with a working cognition believes that liberty exists without situational awareness of existential threats.

      Evidently we have an emerging or morphing culture of Libertarians who’ve never read a goddamn word of Ayn.

      Lax denotes carelessness and anyone who understands history and philosophy should resist apathy toward their freedoms.

      1. The “nothing” state being the years-long process that it currently takes to immigrate here?

        1. The many thousands of refugees dumped here from Middle-Eastern countries went through no ‘years-long’ process to gain access to state resources and no ‘years-long’ process is required in several states for illegals to obtain a fucking drivers license- much less the lack of ‘years-long’ process required for illegals to work here for life due to sanctuary cities.

          With a system this nonchalant who needs citizenship?

          Hell made earth its home and it spills blood like a horde of drunken vampires and the last remaining bastion of freedom should just fucking act as if every single man, woman, and child coming here is a lovely gift from the gods and the minds of these angels foam with living fountains glittering the ethos of liberty?

    3. I do not find arguments based upon notions of disparate impact to be remotely lax. Not particularly libertarian, as they are ultimately based upon the CRA.


  8. “Foreigners from those seven nations have killed zero Americans in terrorist attacks on U.S. soil between 1975 and the end of 2015.”

    Condensed Cato engineered by an immigration specialist devoted to espousing the doctrine of open borders for reasons cleverly veiled behind American values dripping Kochian triumphalism.

    At least be fucking sincere about the appetite your employers hold for ultra-cheap and uneducated labor. Empathy and ethics are a minor dusting on the tempest of this thing. Pretending otherwise requires reams of calculated sophistry.

    1. This is 2017, 1975 is no longer relevant.

      Congress wrote a list of tests in the 2016 Visa Waiver Program reform.
      How often are people rejected from that country IN THE LAST YEAR?
      How many terrorists are there?
      Is the country at war?
      How porous is it’s border?
      Can the home govt verify it’s documents?
      How easily are they forged?
      Does the home country cooperate with us on counter-terrorism?

      These questions and other are what gets countries listed. It’s not our fault that all or virtually all are Muslim. 1975 doesn’t really matter. The judge’s feelings don’t matter – as Congress has already provided a method. Does the EO fall under the law? There is no other question.

    2. “….Americans …” “…on US soil…” is NOT the important test here.

      At a minimum it should be “…anywhere in the world…”

      Also it should be “anybody”. If Germans, Brits, and Japanese are killed by terrorists in Thailand, I think it is a useful metric for risk to Americans by terrorists from those countries. Not necessarily sufficient, but better than the narrow focus of Americans on US soil.

  9. I find it bizarre that the Left has gone to the mattresses over this. Trump implements a pause to improve vetting of peeps from countries identified by the friggin Obama administration for having issues and the left reacts as if it is the end of the world.
    All this does is convince the moderate-to-right side of the country that the left is utterly unserious and will happily subvert the rule of law and function of the government for their own ends. The right isn’t fascist, but if the left manages to convince the right that the rule of law and societal compacts are now null and void, god knows what we’ll see in the future.

    1. Trump has a genius for causing them to lose what little sanity they have. They reflexively and hysterically oppose everything he does no matter what impression that makes on the public.

      1. I would love to see Trump come out in favor of something like single payer healthcare, just to see the spinning tizzy it would produce. “Single payer is so awesome, but Trump supports it, so I don’t know what to do!”

        1. He already did something similar with his infrastructure spending proposal.

    2. I love it and hopen they keep it up for a while.

    3. They are fighting him from within the regulatory state. Not just favorable ground, but effectively their homeland.

  10. I would encourage anyone interested in this topic to read the lower court’s decision. It is the worst piece of legal writing I have ever seen. The judge would have been better off just writing “fuck you Trump”. That would have been no more poorly reasoned than what he did write and would have at least had the virtue of brevity.

    1. He just said he looked at the evidence, considered the arguments, and was convinced that his order was justified, but he didn’t really deign to explain why. It was more “trust me.”

      1. Surrounded by a lot of cut & pasted boilerplate legal language.

        From the questions the judge asked in the hearing, it sounds like he disagreed with Trump’s policy – but that’s not his job as a judge. He does not get to consider the wiseness of policy.

        1. It’s like what Gorsuch said. “A Judge who likes all of his decisions, is very likely a bad Judge”.
          This judge falls into that category.

      2. It’s not his job to educate you, shitlord.

    2. Good summary. Thumbs up.

  11. Everybody who already has a green card after complying with the law has due process rights, and those shouldn’t be violated. If the standard in granting a TRO is the likelihood of that part of the order being struck down in court, then I understand why that part of the order might be subject to a TRO.

    However, rightly or wrongly, the courts give broad deference to the President in regard to his responsibilities as Commander in Chief, and it is highly unlikely that the courts will strike down the part of the executive order that pertains to asylum seekers who have yet to obtain a green card or establish legal residency. That part of the order should not be subject to a TRO.

    If only the courts had cared as much about mass surveillance!

    The part of the order that gives preferences to religious minorities isn’t obviously unconstitutional either. Religious persecution is a legitimate basis for an asylum claim according to treaty, and minority status should speak to the legitimacy of a persecution claim just like it does–rightly or wrongly–in a discrimination claim.

    If minority status doesn’t speak to discrimination, then the whole basis for affirmative action, Title IX, court supervision of redistricting in the south–among a world of other things the government does–are all being brought into question by this ruling. Again, I don’t see any basis for a TRO on that issue either if the standard is the probability of the government losing in court.

    1. I was struck by the silliness of the insistence that it’s somehow unconstitutional to let in persecuted christians (or others) before letting in the people that, ostensibly, supported their persecution. Of course, how do you test if someone is a true christian or not?

    2. On my first several readings of the EO I didn’t think it applied to those who already held visas, but going back to it when the TRO was issued it appeared obvious that it did. I was questioning if I was looking at the same text. “prevent the entry of aliens with immigrant and non-immigrant visas” Personally I thought it was bad idea to not allow entry to those who already had visas and it appears that was reversed (perhaps permanently) after the TRO.

      I Googled to find a WaPo article on Jimmy Carter’s 1980 revoking of Iranian visas, affecting about 150k people at that time. It said that those currently in the US, on immigrant or student visas, “couldn’t be deported immediately” but that, for example students currently traveling overseas, “would have a hard time getting back in.” That doesn’t sound very much different than Trump’s order.

  12. “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence.”- The Chinese Exclusion Case, 130 U.S. 581, 603 (1889)

    ” in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotations omitted) See also Adams v. Howerton, 673 F.2d 1036, 1041 (9th Cir. 1982) (citing Fiallo)

  13. It’s amazing how many principles the left is throwing under the bus here.

    Judicial restraint, the precautionary principle, deference to the president’s powers as Commander-in-chief–they’re even willing to throw minority status as an indication of persecution or discrimination under the bus?

    I’ve accused Dalmia of being like this, where there doesn’t seem to be any principle so important that she wouldn’t throw it under the bus to save immigration. The left seems to be right there with her, too.

    If letting asylum seekers in without proper screening is wrong, they don’t want to be right.

  14. Despite the TRO, the Legal Arguments Against Trump’s Immigration Order Are Iffy
    The travel ban is unfair and illogical, but that does not make it illegal.

    Shikha just unfriended you on Facebook because you insufficiently shat your pants. What’s point except baiting n inciting in Trump’s America?

    1. Speaking of the illiberal ‘libertarian’, Shikha, Glenn Reynolds has a more libertarian perspective on the riots at Berkley. He makes a good point.…../97521138/

  15. My understanding is the green card and immigrant visas were the issue…not the entirw thing which is temporary.

    Also are there really a lot of hi tech workers coming from somalia, iran, libya, sudan, iraq syria and yemen? I dont see it

  16. I was struck by a number in a piece on Today this morning. They said there are 60k people with green cards or work visas affected by this ban.

    Holy crap, that’s a lot of people travelling back and forth from a pretty small population base. I would never have guessed that we are talking about that many.

    I know Iran send a lot of students here. I worked with a couple of Iranian post-docs during gulf war I. But they tossed out 3,000 as the number of PhD students currently studying here from Iran. Jeez, that’s a big number. Iran is just not that big of a place, compared with that number of foreign PhD students studying in one country.

    1. 77 million in Iran, a bit less than Germany, more than France or the UK

  17. This isn’t the first time Reason has covered the adventures of Judge Robart.

    “According to Seattle District Judge James Robart, a student who believes Amherst violated his due process rights, wrongfully expelled him, and ignored subsequent evidence that his accuser, “Sandra Jones,” was the actual violator of the college’s sexual misconduct policies, does *not* deserve the opportunity to make his case because someone else’s feelings are more important.”

  18. That is the beauty of conducting a religious war. The government is banned from taking action as it would be discriminating.

  19. i oppose the order. that’s my personal point of view.

    legally, i think the restriction against permanent legal residents is illegal. i don’t think it’s should survive scrutiny even if you’re granting them a waiver, because i don’t believe that’s at the discretion of trump or anyone else.

    there’s an argument against the rest of it, sure, but the government has the right to pass bad laws, or in this case, sign bad orders. if something not making sense made it illegal, then this would be a longer, and more complicated conversation.

    1. Generally I support the order. I thought the restriction against permanent legal residents was unwise. However, in reading the laws cited by the EO and reading pieces by several attorneys over the past week, I don’t see how any of it is illegal. In looking up Jimmy Carter’s revoking of Iranian visas in 1980, a WaPo article said that student visas holders currently out of the country “would have a hard time getting back in” and that student and green card holders inside the US “couldn’t be deported right away” Didn’t mean they wouldn’t be deported eventually – I assume they had to track them down.

  20. Sullum is not a lawyer nor did he attend law school and it shows. While you certainly do not have to be a lawyer to comment on legal issues, the ones dealt with in this article get deeply into the weeds, and here a license helps. For example, the provision in the INA which mandates non-discrimination in the issuance of visas is irrelevant to the issues here, because the holding of a visa does not guarantee exemption from suspension of entry. Oddly enough, with reference to Judge Robart’s claim that no refugees had been arrested on terrorism charges, the obvious point seems to have been missed — how many have been suspected by the FBI or CIA of terrorist links or activities but for reasons of national security cannot be publicly acknowledged.

  21. Yep. All the amicus briefs and the statements by John Kerry, et al., are long on complaints about the effectiveness, or the reason for the EO, or the sanity of Trump, or the possible damage to international discourse.

    But few of them seem to say anything about the actual legality of the action.

    The ban be be stupid, wrong-headed, even insane, but almost certainly within the President’s purview under the Constitution and the laws as written.

    And pretty much anyone who insists on using the words “Muslim Ban” should immediately be dismissed as knowing nothing about which they are speaking.

  22. Other POV explaining much the same thing, citing relevant SCOTUS decisions.…..wide-stay/

  23. Of course, the libs who deride Trump’s ban would have no issues with blocking alt-righters from speaking college, using almost exactly the same rationale – violent rhetoric leads to violence.

    Most people around the world are not heartened by the thought of a rogue refugee running over hundreds of their own people with a truck during one of their national celebration. It doesn’t matter that their tiny Muslim population have no record of violence. Because they recognize radical Islam as a distinct and universal threat – one that can permeate civil society and inspire disturbed individuals to action. It’s a virus.

    People in Korea and Japan get nervous when Kim Jong Un tests missiles that fly bit too close to their lands. After a few weeks no one cares about it. If Tokyo heard gunfires and “Allah Akbhur”, the entire eastern Asian region will be thrown into massive panic. Because they know they could be hit from the inside.

    Trump’s EO is a case of too much too soon, but I have no doubt that a very silent majority of Americans quietly support his measure. At the very least, they won’t oppose additional vetting steps and visa restrictions on these countries. Unlike democrats, they take into account ISIS’ brutality and organization into account. A refugee agent is on a different level than a random illegal alien who might run over people while driving drunk.

  24. Ok when such a common sense decision as this EO causes so much hysteria, I realize the country is basically lost. It doesn’t mean that we stop fighting but it means the country is so torn that it feels hopeless. Obviously the progressive movement has so completely taken over Education in this country that we now have many tens of millions of hopelessly miseducated people who can’t even think straight unless someone from the fake news media tells them what to think.

  25. That power, Washington and Minnesota argue, is limited by another provision of the INA that says “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

    Note that the public was promised as part of passage of this act that the mix of immigrants would be fairly representative of US demographics. Congress should probably rewrite the entire act. Adherence to the US Constitution, English literacy, high income potential and special workplace skills should be the primary criteria for both immigrant and non-immigrant visas.

  26. Exactly what defines something as a “religion”? (I’m sure the SCOTUS has addressed this at some point.) The U.S. Government was able to discriminate against Communists. If they just declared themselves a religion would this have been unconstitutional?

  27. On the discrimination issue — how can it be discriminatory?

    For instance, suppose the President were to issue an EO declaring all immigration of green people from Nations A, B, and C, were to be tightly restricted for 6 months, but green people from other countries would not be restricted. In order to claim unlawful discrimination we’d have to look beyond why it affected green people and ask what those countries had in common.

    It isn’t religious discrimination if Muslims from Pakistan or Malaysia aren’t affected. Nor is it racially discriminatory if non-Muslim Iraqis (e.g. Coptic Christians) are not affected.

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