Archives for February 2017

The states of Washington and Minnesota (later joined by 17 more states) filed a lawsuit against President Trump’s recent executive order banning entry into the United States by citizens of 7 majority Muslim countries, claiming the ban harms the interests of the states, their citizens and legal residents. On February 9, a three-judge panel of the 9th Circuit Court of Appeals unanimously voted to uphold federal district judge Robart’s temporary block of President Trump’s administration ban. What does this decision mean for U.S. citizens, refugees, and immigrants?

Upholding Checks and Balances

The administration argued that the judiciary branch should defer completely to the executive branch on orders purportedly affecting national security, primarily because the court is not aware of pertinent classified information that only the president knows. In upholding lower court’s decision, the appeals court rejected this argument, affirming that under the U.S. constitution the courts play a critical role in acting as a check on the power of the executive branch, including immigration matters.

[T]he Government has taken the position that the President’s decision about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. . . There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. . . [T]he Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.

Right to Due Process

The 9th Circuit also held that the states showed a likelihood of success on their contention that the immigration ban violates due process rights afforded to non-citizens as well as U.S. born citizens, naturalized citizens, green card and visa holders.

The procedural protections provided by the Fifth Amendment’s due process clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” . . . These rights also apply to certain aliens attempting to re-enter the United States after traveling abroad.

No Need for Immediate Action

While the Trump administration claimed that the immigration ban was a pressing matter of national security, the 9th Circuit court held that the administration failed to present evidence supporting the immediate need for the order. The court also considered evidence presented by the states that doing so could harm U.S. interests and those of its citizens and legal residents.

[T]he public has a powerful interest in national security and in the ability of an elected president to enact policies. . . [T]he public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.

After initially seeking reconsideration by the full 9th Circuit, yesterday the Trump administration withdrew its request and told the court it would rescind the travel ban, a complete victory for the states. The president has promised to issue a new executive order soon that complies with the law. The states, immigration advocates and affected families and individual will be watching, ready to challenge the president again if he oversteps his authority.

The attorneys at Brownstein & Nguyen have decades of experience with immigration cases in Atlanta. Contact us to evaluate your immigration case today.