Judge blocks deportation of detainees over Trump refugee order
Brooke Seipel, The Hill, Jan 29 2017
A federal judge in New York has issued an emergency stay temporarily halting the removal of individuals detained after President Trump issued an order to ban immigrants from seven Muslim-majority countries from entering Pindostan. The move appears to mark the first successful legal challenge to the Trump administration and affects those who have arrived in Pindostan with previously approved refugee applications or were in transit with valid visas. Federal District Court Judge Ann Donnelly ruled in favor of a habeas corpus petition filed by the ACLU on behalf of two Iraqi men who were detained at JFK (Idlewild) on Friday after Trump signed his order. Donnelly, who was nominated by Obama and confirmed to her judgeship in 2015, ruled in the Eastern District of New York:
There is imminent danger that, absent the stay of removal, there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to it.
Lee Gelernt of the ACLU said:
This ruling preserves the status quo and ensures that people who have been granted permission to be in this country are not illegally removed off Pindo soil.
The ruling deals with a portion of Trump’s order handed down Friday, which bars Syrian refugees indefinitely and halts the resettlement of all refugees for four months as the administration reviews the vetting process. The order also denies entry for 90 days for individuals from seven predominantly Muslims countries: Iraq, Iran, Somalia, Sudan, Syria, Libya and Yemen. The ACLU’s Anthony Romero said in a statement:
Clearly the judge understood the possibility for irreparable harm to hundreds of immigrants and lawful visitors to this country. Our courts today worked as they should as bulwarks against government abuse or unconstitutional policies and orders. On week one, Donald Trump suffered his first loss in court.
The order Saturday evening capped off a chaotic first day following Trump’s directive, as the administration moved to implement his order, with reports emerging of individuals being detained at a number of airports across the country. The DHS said Trump’s order would apply to green card holders from the seven impacted countries. Sen Jeff Flake (R-Ariz) said in a statement:
President Trump and his administration are right to be concerned about national security, but it’s unacceptable when even legal permanent residents are being detained or turned away at airports and ports of entry.
A senior administration official said green card holders from the countries who are currently outside Pindostan will need a case-by-case waiver to return, and green card holders in Pindostan will need to meet with a consular officer before leaving the country. An administration official also said:
Trump advisers were in contact with State & Homeland Security for weeks prior to the issuing of this order. It affects a relatively small number of people. It’s important to keep in mind that no person living or residing overseas has a right to entry to Pindostan.
Backlash on Saturday to the order was swift from civil-rights groups, businesses and various Democrat Party officials. Rep Nydia Velázquez (D-NY) slammed Trump’s executive order outside JFK where she and fellow Rep Jerrold Nadler (D-NY) worked to secure release of the two Iraqi men, calling it “arbitrary” and “unjust.” Democrats also pressed the Trump administration for further explanation on the order, and Sen Chuck Schumer (D-NY) called on the DHS to immediately rescind it. Trump told media gathered in the Oval Office on Saturday afternoon, as he signed three new executive orders (on lobbying, Daesh and the NSC):
It’s not a Muslim ban, but we are totally prepared… It’s working out very nicely. You see it in the airports, you see it all over. It’s working out very nicely and we are going to have a very, very strict ban and we are going to have extreme vetting, which we should have had in this country for many years.
Federal Judge Grants Partial Block Of Trump Immigration Order
Tyler Durden, Zero Hedge, Jan 28, 2017
Symbolic war broke out between the Judicial and Executive branches shortly before 9pm on Saturday evening, when federal judge Ann Donnelly in the Eastern District of New York in Brooklyn issued an emergency stay halting Trump’s executive order banning immigrants from seven mostly Muslim nations entering Pindostan. Her decision temporarily lets people who landed in Pindostan with valid visas remain on Pindosi territory, since in her view removing the refugees could cause “irreparable harm.”
The court’s ruling was in response to a petition filed on Saturday morning by the ACLU on behalf of the two Iraqi men who were initially detained at JFK (Idlewild) on Friday night after Trump’s ban, and were subsequently granted entry into Pindostan.
However, while some media reports present the court ruling as a wholesale victory over Trump’s order, the stay only covers the airport detainees and those currently in transit, and it does not change the ban going forward. In summary, the state of affairs as of this moment is that the executive order is now frozen for the next few days, until the case can be briefed. The court has ruled that no one who is currently being held can be sent back to their country of origin, but it remains unclear if they will be released is unclear. Judge Donnelly has ordered the federal government to provide a list of all people currently held in detention. Where the stay falls short is that according to the ACLU’s lawyer, there still can be no new arrivals from countries under the ban, but the ACLU and other organizations are working to file additional suits to roll back other portions of the order. A detailed read of Judge Donnelly’s ruling, per Josh Blackman, reveals that the order states that petitioners have shown a “strong likelihood of success” and that their removal would violate the Due Process and Equal Protection clause, and cause irreparable injury. Note, this order only applies to those already in the country, and thus protected by the Constitution; the same analysis does not apply to those outside the United States. As a result, the court issues what is effectively a nationwide stay, enjoining all of the named respondents, including Trump, Kelly and the acting director of the CBP, from the “commission of further acts and misconduct in violation of the Constitution as described in the Emergency Motion for Stay of Removal.” The key part is what they are enjoined from doing:
ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by Pindosi Citizenship and Immigration Services as part of the Pindosi Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter Pindostan.
Further, the court orders the Marshal for the Eastern District of New York to “take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.” What will disappoint civil rights advocates, is that this opinion only affects the small number of people who were in-transit when the order was issued, and arrived after it went into effect. The Constitution attaches to their status, and they cannot be held in violation of the due process clause. The same analysis does not apply to aliens outside Pindostan. We now look forward to Trump’s reaction to this act of defiance by a federal court which has partially and painfully voided his most controversial executive order to date, and whether the supreme court will be forced to opine on this most divisive of topics in the coming days. If anything, the risk to the latter may accelerate the prompt appointment of a conservative SCOTUS judge to fill the vacant Scalia spot.