Federal Judge Blocks President Trump
By Marjan Kasra & Babak Hojjat
Note: Please keep in mind that the situation with this ban is extremely fluid, and that things may change at any time. Therefore, it is highly advisable for nationals of countries affected by this ban to consult with an immigration attorney before making any travel plans, or decisions concerning their immigrant or nonimmigrant visa matters.
Following a week of protests and chaos at airports nationwide, a federal judge in Seattle on Friday blocked U.S. President Donald Trump’s executive order known as the “Muslim ban.”[1]
After U.S. District Senior Judge James Robert issued the temporary restraining order that lifted the ban, the State Department began restoring tens of thousands of cancelled visas for foreigners while the Department of Homeland Security “suspended all actions” in terms of enforcing the ban.
In response, Trump tweeted that the judge’s order “essentially takes law-enforcement away from our country” and would be “overturned.” The U.S. Department of Justice on Saturday night filed a formal appeal of the judge’s order.
Since Trump issued the order on January 27, the immigration rights of nationals of seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—were curtailed. The constitutionality of the executive order was questionable at best, and the lack of appropriate guidance to U.S. Customs and Border Protection and the Department of Homeland Security created even more uncertainty for travelers.
What the Ban Did
Trump’s executive order effectively suspended the entry of nationals from these countries for 90 days lasting through April 27 while the government reviews their visas. The federal government planned to use this time to determine if additional information would be needed to resume admission processing. Under Trump’s immigration ban, if a country didn’t comply, the ban would become indefinite. Due to the rocky relationship between the U.S. and many of these nations, if left unopposed, the ban could have become indefinite in some countries. Under the ban, refugee admissions from these countries was stopped for 120 days. Syrian refugees were hit the hardest, and refugee admissions was halted indefinitely.
Of particular note, Trump’s order included a discriminatory provision that carves out a special exception for “minority faith members,” but didn’t take into consideration the grounds normally afforded refugees.
Trump’s ban, combined with a lack of adequate guidance to CBP, DHS, and airline executives, left thousands of U.S. visa holders stranded at airports where they were denied boarding onto flights bound for the United States. More than 170 people were denied entry to the country, according to DHS.[2] Many of these people were blatantly refused access to legal counsel.
The tragedy is that legal permanent residents who make the United States their home were among these individuals. The executive order, taken on its face, effectively placed a ban on U.S. green card holders.
Furthermore, on January 27, the State Department published an “emergency advisory” instructing visa petitioners to not appear for their visa appointments, and not pay visa fees.
For individuals familiar with the U.S. immigration process, it is a very strict, rigorous, and lengthy and prospective immigrants undergo extensive background and security checks prior to gaining entry into the United States.
In family immigration matters (the most common type of immigrant petitions), an immigrant must wait two to 13 years before an appointment is scheduled at a U.S. embassy.
On January 28, immigration attorneys throughout United States began receiving emails from the State Department indicating that their client’s visa appointment was “cancelled due to unforeseen circumstances. We will re-schedule your immigrant visa interview and inform you of the new appointment date as soon as we are able.”
Ban Ignites Flurry of Litigation and Questions
Historically, dual citizens of certain countries such as Iran and the United Kingdom have enjoyed access to the Visa Waiver Program under which dual citizens can enter the United States under a treaty providing British citizens with a waiver from needing a U.S. visa. This changed during the Obama Administration when HR-158, or the Visa Waiver Program Improvement Act of 2015, went into effect. Legal experts believe Trump’s immigration ban is rooted in HR-158 because the same seven countries are identified in the ban as in the bill introduced by former U.S. Rep. Candice Miller (R-MI) in 2015.
On January 28, State Department officials released a statement to the Wall Street Journal indicating that the ban also applied to dual nationals from one of the affected countries. Therefore, anyone with a passport from one of these countries (dual citizen or not) was treated as being “from” that country.
However, DHS last week began admitting some green card holders on a case-by-case basis who made it to U.S. airports. Although DHS indicated green card holders would be allowed to board planes, immigration attorneys and others reported cases where their clients were prevented from boarding their flights bound to the United States.
Despite the limited improvement for some legal permanent residents, airports were flooded with immigrant and nonimmigrant visa holders who were detained for hours. This resulted in protests at airports nationwide.
Shortly after Trump signed the executive order, the American Civil Liberties Union filed a class-action case on behalf of two Iraqi nationals with valid visas, but were blocked entry at John F. Kennedy International Airport.
Late last week, a federal judge in New York issued an emergency stay of removal. Since it was a class-action case, it effectively stopped DHS from removing all visa holders and refugees with approved applications on U.S. soil. This was followed by similar petitions against Trump filed in the states of Virginia and Washington, and in Boston and Los Angeles.
These lawsuits alleged violations of due process rights under the Fifth Amendment, and argued that Trump’s order unjustifiably discriminated against the petitioner’s country of origin. Although the executive order didn’t literally declare a “ban on Muslims,” it effectively did, creating a plausible case under the equal protection component of the Due Process Clause of the Fifth Amendment. Interestingly, a Virginia lawsuit also claimed the executive order violated the Establishment Clause of the First Amendment by giving preference to non-Muslims.[3]
The Immigration Ban in Review
While these lawsuits were pending, four other developments occurred last week:
1) The U.S. government stopped travel for refugees from the seven nations;
2) The Canadian prime minister reported that he had received assurances from the U.S. government that Canadian dual citizens traveling on Canadian passports would not be affected by the ban, regardless of their nationality;
3) DHS Secretary John F. Kelly issued a press release stating that while the executive order applies to legal permanent residents, they qualify for an exception to the ban. “I hereby deem the entry of lawful permanent residents to be in the national interest,” Kelly said.
4) DHS issued a summary of the executive order allowing U.S. legal permanent residents traveling on valid I-551’s to be allowed to board U.S.-bound aircrafts, and to be “assessed for exceptions at arrival ports of entry as appropriate.” Admission of these individuals is subject to national security checks.
U.S. Citizens and Legal Permanent Residents File Lawsuits Too
Last week, U.S. Citizenship and Immigration Services (USCIS) suspended all pending immigration benefits applications on behalf of nationals of the seven impacted nations within the United States. This included petitions for asylum, adjustment of status, naturalization applications and swearing-in ceremonies for already approved U.S. citizenship applicants.
Meanwhile, the American Immigration Council, the Northwest Immigrant Rights Project, and the National Immigration Project of the National Lawyers Guild filed a lawsuit on behalf of U.S. citizens along with legal permanent residents and nationals of the affected countries. This class-action lawsuit challenges the suspension of immigrant visa processing—affecting many individuals already living in the United States. The plaintiffs allege that the executive order directly violates their sacred and constitutionally protected rights to family, equal protection, and marriage.[4]
Provision for Special Immigrant Visa Holders
CBP issued an update last week in which it deemed that the “entry of Iraqi nationals with valid Special Immigrant Visa (SIV) to the United States to be in the national interest and such individuals can apply for admission to the United States.” This follows the detention of an Iraqi SIV visa holder at JFK, and an ensuing lawsuit in New York that resulted in his release on January 29.
What’s Next?
The United States is a nation of immigrants, built by immigrants and for immigrants. Regardless of your political affiliation, this poorly drafted and horribly executed executive order jeopardized the U.S. Constitution and the core values of what it means to be an American. The right to be with one’s family, the right to practice your religion, and even your right to pledge allegiance to this nation, the very freedoms at the heart of our democracy, are called into question under this executive order. I have no doubt that more lawsuits are in the works to protect our core values as a nation of immigrants…. All immigrants, not just some.
1. Associated Press, “A Federal Judge Has Temporarily Blocked President Trump’s Travel Ban Nationwide,” February 3, 2017, http://time.com/4660416/donald-trump-ban-muslim-blocked.
3. Fox News, “Federal judge grants stay to allow those with visas to remain,” January 29, 2017, http://www.foxnews.com/us/2017/01/29/federal-judge-grants-stay-to-allow-those-with-visas-to-remain.html.
[3] The New York Times, “Trump’s Immigration Ban is Illegal,” January 27, 2017, https://www.nytimes.com/2017/01/27/opinion/trumps-immigration-ban-is-illegal.html?_r=0
[4] The New York Times, “Trump’s Immigration Ban is Illegal,” January 27, 2017, https://www.nytimes.com/2017/01/27/opinion/trumps-immigration-ban-is-illegal.html?_r=0
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