Friday, February 10, 2017
Travel Ban Update, President Trump's Options
By Angela Lopez
And the “ban” goes on….. to the Supreme Court?
Two weeks ago I wrote an article outlining President Trump’s Executive Order temporarily banning travel to the U.S. by refugees and certain immigrants from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.
Yesterday, February 9, the Ninth Circuit ruled against President Trump’s executive order and denied the Department of Justice’s request for an emergency stay of the restraining order issued by U.S. Federal District Judge James Robart on February 3. This means that the restraining order stays in place and travel can continue, for now.
With so much at stake and so many different sources providing information, it is difficult to sort through it all and stay informed. Here is a recap of the executive order legal “battle” and the administration’s options going forward.
President Trump signed the executive order "Protecting the Nation from Foreign Terrorist Entry into the United States" to keep "radical Islamic terrorists out of the United States of America." This order bars admission to the U.S. of all people with non-immigrant or immigrant visas from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days. It also bars entry to all refugees from anywhere in the world for 120 days, and places an indefinite ban on refugees from Syria.
The American Civil Liberties Union filed a writ of habeas corpus at the Brooklyn Federal Court on behalf of Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq, two Iraqui brothers coming to the United States on special visas for their work with the United States Military, who were detained by Custom and Border Protection (CBP) at John F. Kennedy International Airport in New York City.
Judge Ann Donnelly of the Federal District Court in Brooklyn ruled that people stopped in airports nationwide could not be forced back to their original destinations because they could face "substantial and irreparable injury."
Federal lawsuits were filed in New York, Massachusetts, Virginia and Washington on behalf of travelers who were detained in airports throughout the United States.
Washington state Attorney General Bob Ferguson filed a lawsuit in the United States District Court in Seattle citing examples of residents impacted by the ban. The lawsuit included a separate emergency motion for a nationwide, temporary restraining order (TRO) that would bar the enforcement of parts of President Trump’s executive order.
U.S. Federal District Judge James Robart issued a restraining order to stop President Trump’s executive order allowing travel to continue. And, Hawaii filed a lawsuit asking the Federal District Court to block implementation of the executive order.
The Department of Justice filed an appeal to Judge Robart’s restraining order with the Ninth Circuit Court of Appeals in San Francisco requesting for an emergency stay on the restraining order. The administration argued that “the president is acting within his authority and that the ruling by Judge Robart second-guesses the President's national security judgment"
The Ninth Circuit Court rejected the Department of Justice’s request for an emergency stay on the restraining order and asked for briefings from both parties to be filed on February 6 by 6:00 p.m. to make its decision.
The states of Washington and Minnesota and the U.S. Department of Justice submitted briefings to the Ninth Circuit for consideration. The briefings argued:
Washington and Minnesota - that the executive order causes "irreparable harm" to businesses, schools, family relations, and to state residents’ freedom to travel, and is unconstitutional because it discriminates on the basis of religion. Fifteen other states joined in support of Minnesota and Washington, along with the ACLU and leaders of the tech world from Google, Facebook, and Apple.
The Department of Justice - that the travel restrictions are a matter of national security and the administration was excluding people from countries with ties to terrorism, not people of a certain religion.
The Ninth Circuit heard oral arguments from attorneys for the Department of Justice and the states of Washington and Minnesota. Each side was allowed 30 minutes to present their arguments.
The three-judge-panel from the Ninth Circuit (William C. Canby Jr., Michelle Friedland, and Richard R. Clifton) unanimously ruled to deny the Department of Justice’s request for an emergency stay of the restraining order.
Judges’ decision: “We hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.”
In their decision, the federal judges referenced President Trump’s remarks on the campaign trail about implementing a ban on Muslims entering the United States if he was elected, and held that the government failed to provide evidence that nationals from the seven affected countries had carried out attacks on U.S. soil.
Following the decision, the Department of Justice issued a statement saying it is “reviewing the decision and considering its options.”
Alternatives: President Trump's Department of Justice has several options:
- Go to the Supreme Court - Appeal the Ninth Circuit court decision directly to the Supreme Court.
- Go to the full Court of Appeals – Appeal the three-judge panel's decision to the full U.S. Court of Appeals for the Ninth Circuit. The full U.S. Court of Appeals for the Ninth Circuit is comprised of 11 judges who would re-hear the case and issue a new ruling.
- Go back to Washington state - Allow the Ninth Circuit decision to stand and go back to the U.S. Federal District Court (Judge James Robart) that issued the restraining order on February 3, for a hearing on the preliminary injunction, which is the next step.
A hearing for a preliminary injunction is already in the works. Judge Robart gave both parties until February 17 to file motions related to this mater.
Regardless of the outcome, Judge Robart’s decision will be appealed and, upon completion of the appeal process, Judge Robart could hold new hearings to decide the case on the merits, which would determine whether the executive order is legal or not. This decision could also be appealed and the case could end up before the Supreme Court.
- Write a new executive order!
At this time, President Trump's travel ban is suspended, but the legal battle continues. We will continue to keep you informed so you can stay current on the issues.
Angela M. Lopez
Immigration Law Section
Cowles and Thompson.
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