Executive Order 13769 and America’s Longstanding Practice of Institutionalized Racial Discrimination Towards Refugees and Asylum Seekers

One of the paradoxes of international human rights law is the international community’s inability to curb xenophobic attitudes resulting in discriminatory regulations that exclude refugees. The United States has an established history of excluding immigrants, particularly refugees, based on national or ethnic origin, masked under national security. After the Civil War and the abolition of slavery, lawmakers sought to control the ethnic composition of the country, by prohibiting the entry of certain ethnic groups. The practice was implemented through racially discriminatory legislation until the Immigration and Nationality Act of 1965. Nonetheless, the federal government continued to exercise racial discrimination through the adjudication of asylum claims. The United States exemplified its present‐day practice of racial exclusion with Executive Order 13769 “Protecting the Nation from Foreign Terrorist Entry into the United States,” which prohibits the admission of Syrian nationals indefinitely and suspends the U.S. Refugee Admissions Program for a minimum of 120 days. Such immigration policies and regulations are a form of institutionalized racial discrimination that violate a refugee’s equal protection and due process rights under the Fifth Amendment and international human rights norms and customs. Although the Ninth Circuit Court of Appeal unanimously stayed the injunction, the appellate court did not review the merits of the case. This Article traces the enduring practice of institutionalized racial discrimination towards refugees in the United States and the illegality of Executive Order 13769 under federal and international law. Finally, the United States has both constitutional and international obligations to denounce xenophobia and racially discriminatory laws.