Archive for the 'Immigration' CategoryPage 2 of 11

Immigration: Why Did Border Patrol Ask for ID on a Domestic Flight?

A recent domestic flight was boarded by immigration officers who asked to see passengers’ identification. The flight from San Francisco to New York was met by two U.S. Customs and Border Protection (“CBP”) agents who were conducting a search at the request of Immigration and Customs Enforcement. According to CBP, an immigrant who had legal immigration documents received a deportation order after multiple criminal convictions for domestic assault, driving while impaired, and violating a protective order. The agents were in search of this unidentified immigrant, but did not find the person on the flight.

Was this Action Typical?

According to the New York Civil Liberties Union, law enforcement officials sometimes board airplanes to apprehend a suspect or fugitive. They occasionally may pull someone off a flight or officers will enter a plane to make an arrest. However, it is highly unusual for officials to do what they did here – wait outside an arriving plane to ask for identification from each passenger.

ImmigrationWhy Did CBP Ask Passengers for ID?

During campaign season, President Trump promised his supporters he would deport “bad dudes” or “bad hombres”, a term he coined for immigrants convicted of crimes. It appears he’s trying to make good on his promise.

Asking for identification from each passenger was without a doubt atypical for CBP and certainly not protocol. Due to this unusual action by CBP, people are starting to question whether it was connected to President Trump’s new immigration guidelines. Under the Obama administration, U.S. Immigration and Customs Enforcement (“ICE”) prioritized finding and deporting undocumented immigrants with prior criminal convictions. The Trump administration has taken this one step further. Under the Trump administration, the Department of Homeland Security issued guidelines to ICE and CBP empowering federal agents to detain, target and deport any immigrant currently in the United States without documentation. This includes immigrants who have no past criminal convictions.

What are the Immigration Laws in the U.S.?

The Immigration and Naturalization Act (“INA”) is the body of law that governs current immigration policy.

There are essentially three ways to legally immigrate to the United States. First, an immediate family relative can sponsor anyone seeking immigration visas so long as the immigrant is at least 21 years old and can demonstrate either the sponsor or the immigrant has the financial means to support him or herself in the United States. Second, individuals who leave their home country to avoid persecution can obtain refugee status through the U.S. Embassy, thereby obtaining refugee and asylum status. Third, lawful permanent residency allows for a foreign national to work and live lawfully in the U.S. This is known as obtaining an employment or work visa.

Are Immigrants a Problem in the U.S.?

Recent statistics show that there are a record 61 million immigrants and their American-born children who live in the United States. Given the limited ability for most immigrants to immigrate to America legally, there are an estimated 15.7 million who live here illegally. These people are known as undocumented (or illegal) immigrants, and they are foreign people who have no legal right to remain in the U.S.

As with any group of people, some immigrants are criminals, but it is dangerous to assume all immigrants are “bad dudes.” Not only is it an unsubstantiated stereotype, it also unfairly categorizes an entire group of people based purely on their immigration status. The fact that this stereotype is perpetuated by the President of the United States, the most powerful position in the world, encourages narrow-minded thinking.

President Trump’s new stricter guidelines that encourage targeting, detaining and deporting immigrants are consistent with his campaign and presidency which seem to focus on dividing our nation instead of uniting it.

Immigration Ban 101: Understanding Trump’s Executive Order

Trump’s executive order on immigration has created mass confusion, waves of legal battles, and incited outrage across the nation.  In the chaos that ensued after the executive order dropped, legal professionals began filing lawsuits that eventually led to a temporary suspension of the ban. Although the initial decision by the Ninth Circuit Court of Appeals is foretelling the executive order would ultimately be held unconstitutional, let’s take a closer look at the immigration policies Trump wants to implement.

Immigration Ban

Who’s Covered?

  • The order suspended new refugee admissions for 120 days, which suggests new vetting procedures were on the way. Although Trump says he wants a heavier regulated process, the U.S. refugee admissions system is already strict.  Refugees typically apply through the Office of the United Nations High Commissioner for Refugees (UNHCR), which then goes through several databases, including the State Department, the National Counterterrorism Center/FBI’s Terrorist Screening Center, the Federal Bureau of Investigation, Interpol, Drug Enforcement Administration, and the Department of Defense.  Currently, it can take anywhere from 18 to 24 months for the vetting process.
  • The order suspended the Syrian refugee system Last year, Trump’s Vice President, Mike Pence, tried to stop resettlement of Syrian refuges into the State of Indiana, but was blocked by an appeals court who ruled his attempt as “nightmare speculation”.  The order also requests review of a state’s right to accept or deny refugees for resettlement in their state, which is no doubt a nod to Pence.
  • The order bans entry into the U.S. from seven majority-Muslim countries for 90 days. Those countries include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, but more countries could be added at any point under the discretion of the Department of Homeland Security.  The ban was unclear as to whether the restriction included legal U.S. residents, which created chaos for individuals that were traveling when the order hit.  The Department of Homeland Security later clarified that some legal residents that didn’t pose a legal threat would be allowed in.  I’m not sure you can call that much of a clarification, though, as it’s still vague.
  • The ban included denial of entry of dual-nationals. This means even if you hold a passport from another country, but also one from one of the 7 above-listed countries, you could be banned from entering the U.S.
  • Prioritize refugees based on religion. While Trump claims it isn’t a ban on Muslims, there is a small provision within the executive order that says priority should be given to those of a minority religion, implying those religions other than Muslim will be given preference.
  • Lower the total number of refugees to be accepted from any country in 2017. This isn’t a new concept, as each year the president determines how many refugees will be admitted into the U.S., but the number is down from the previous 110,000.  While the U.S. has traditionally been one of the largest refugee resettlement countries in the world, this could easily change as Trump lowered the number to 50,000.

What Can We Expect to See Next?

While the current executive order was blocked by a federal court, this could all be a moot point as Trump has already announced his plans to rescind the current order and issue a new one that’s tailored around the Ninth Circuit Court of Appeal’s decision.  Sounds like a façade, only to appease the constitutional issues raised by ban, as Trump has made his intentions clear about who he wants to allow in the country.

One of the main arguments against the ban is that it’s unconstitutionally discriminatory based on religion.  Even if a new executive order is issued, it doesn’t seem likely Trump can avoid another lawsuit for discrimination because who he wants to prohibit from entering the country is entirely grounded on a person’s religion and nationality.  At this rate, we’re likely to see a constant stream of legal battles over the next 4 years.

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Trump’s Immigration Ban: Domestic and International Rights at Threat

Banning a whole class of individuals based on their nationality is not only hateful, but legal professionals around the globe agree Trump’s immigration ban has a number of constitutional and international human rights issues to overcome.  The immigration ban not only restricts access into the United States for those from select black-listed countries, but it temporarily stops entrance for refugees seeking political asylum and permanently stops entrance for Syrian refugees.

Trump Immigration Ban

First Amendment

The Establishment Clause of the 1st Amendment guarantees religious equality and restricts the government from establishing (or supporting) any one particular religion.  While Trump’s team insists the immigration ban is not a blanket ban targeting Muslims, it’s hard to refute that argument based on Trump’s previous campaign statements.

On its face, the text of the order doesn’t exclude Muslims, but the text of the ban does state priority is to be given to refugees of a minority religion.  Since the ban affects 7 Muslim-majority nations, this language strongly indicates a preference for non-Muslim religions.  I can’t stress enough how much this practice would be in direct contradiction to the establishment clause.

Fifth & Fourteenth Amendment

Trump’s executive order singles out individuals based on both their nationality and religion and encourages discriminatory visa processing procedures, all of which raise discrimination issues that violate due process rights.

Due Process rights under the 5th and 14th Amendment require fair treatment, both procedurally and substantively.  Both the way the law pans out and the way the law is written matter.  Not only must the government provide fair and sufficient notice before denying someone their life, liberty, and property, the government cannot enact laws it doesn’t have the authority to enact.  While executive orders have been traditionally accepted, presidents don’t have the authority to enact laws that are discriminatory and contrary to the principles of the Constitution and laws of our nation.

Trump’s blanket ban provides no processes or procedures for denying entrance into the U.S., which left many stranded, including legal visa holders.  There’s a strong argument those travelers were denied their procedural due process rights.  They were given no notice or chance to make alternative travel plans.  Attorneys scrambled to file writs of habeas corpus demanding that, as asylum seekers on U.S. soil, the government was required under the Immigration and Nationality Act to at least grant asylum hearings, something the order didn’t allow for.

U.N. Experts Say Ban Violates International Human Rights Obligations

In the midst of lawsuit upon lawsuit demanding a halt on the immigration ban for constitutional violations, a group of U.N. human rights experts have weighed in and say the United States is now in violation of its international human rights obligations.  Under non-refoulement principles, the U.N. has long held that nations cannot expel or return a refugee to an area where their life or freedom are threatened.

Will the Ban Hold Up in Court?

After multiple lawsuits were filed, judges across the country issued injunctions blocking certain aspects of the executive order.  The state of Washington filed suit on the order as a whole and U.S. District Judge James Robart blocked the order in its entirety.  Although Trump appealed the decision, normal screening procedures commenced and will remain in effect until a decision is handed down.

Despite Trump’s offensive tweets that questioned Judge Robart’s opinion, Trump seems to be a minority on this one.  Sixteen other state attorney generals have joined the lawsuit.  Massachusetts, New York, Pennsylvania, California, Connecticut, Delaware, Illinois, Iowa, Maryland, Maine, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and the District of Columbia have filed a brief as “friends of the court” to argue against the ban.  At least 127 tech companies have also filed briefs in opposition to the ban.

Trump cited a need to protect our nation from terrorist threats as the basis for the executive order, but it’s arguable the ban will do nothing to actually prevent future attacks.  Media attention has focused on the fact that none of the most recent attacks in the U.S. have originated from the countries on Trump’s list.  Certainly, national security interests can undoubtedly outweigh constitutional protections, but that should only be on a case-by-case basis and not a blanket ban based on nationality.  While courts traditionally have given the executive branch great leeway when it comes to immigration policy, it’s not likely this particular order will pass constitutional muster.

Why the “Muslim Ban” is Still On Hold

In a presidency already jam-packed with sweeping changes and controversial actions, no move has been so contentious as President Trump’s executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States;” better known colloquially as the “Muslim Ban.”  The executive order placed a 90-day bar against immigration from seven Muslim-majority countries, a 120-day bar on all refugees, and a permanent bar against refugees coming out of Syria.  The response to the order has been vocal to say the least.  However, the response has not just been protests and outcry–the order has also faced a number of legal challenges.  Just recently, a Washington court placed an emergency injunction on the “Muslim Ban”–a court order temporarily preventing Trump’s executive order from taking effect.

This isn’t the only, or even the first, court place an injunction on the “Muslim Ban.”  Courts in California, New York, and Massachusetts have all issued orders blocking parts of the ban. However, the Washington ruling was the first to stop the entire order in its tracks.

The Washington ruling was quickly appealed to the 9th Circuit Court of Appeals by the Department of Justice with the goal of overturning the injunction.  However, just yesterday, the 9th Circuit came back with a unanimous decision to keep the stay in place.

The Lead Up to the Ruling

In the oral arguments leading up to the decision, the court seemed split but appeared to lean in favor of upholding the ban.  Two of the judges on the three judge panel ruling on the case targeted the attorney for the Department of Justice (DoJ) with sharp questions about what evidence they had to support the need of the ban in the despite its potential for unconstitutional discrimination.  They also questioned the DoJ’s position that they did not have the power to review Trump’s executive order.  The third judge however, an appointee of former President George W. Bush, targeted the lawyer for Washington with equally sharp questions about whether the ban was discriminatory in the first place.

Muslim Ban TrumpA great deal could be read into these questions, and many felt confident that Washington’s injunction would be upheld 2-1.  However, it’s important to remember that questions can be just that–a judge’s job is to challenge both sides of the argument where they see inconsistencies in a pursuit of the truth.  Ultimately, the judges–appointed by a mix of Republican and Democrat presidents, came out with a unanimous 3-0 ruling against the “Muslim Ban.”

Why Did They Rule Against the Order?

Where a law, or executive order as the case may be, discriminates against a protected class (such as race, national origin, or religion) it is held to the highest levels of scrutiny and must be absolutely necessary to a crucial national concern with no other less harsh alternatives before it can be constitutional and thus valid.  My colleague has previously published an excellent article on the constitutionality–or lack thereof–of a immigration ban targeting Muslim majority countries.  While her article focuses on discrimination based on national origin, a very valid concern when we’re talking about an order which singles out people originating from specified nation for worse treatment, Washington’s injunction instead hinges on the argument that the ban singles out Muslims for discrimination.

However, the 9th Circuit’s decision does not go so far as to say that the “Muslim Ban” is or is not discriminatory.  Frankly, it doesn’t need to go that far in order to determine whether to uphold an injunction.  Instead, they need to make a decision based on whether the injunction itself should stand.  This requires them to find that the federal government has provided evidence which establishes that the country would suffer irreparable harm if the “Muslim Ban” were not immediately reinstated.

However, the federal government barely bothered to try to produce evidence on this issue.  Instead, they stuck with an argument that the courts had no power to review President Trump’s executive order when it was made on the subject of immigration.  While immigration is a subject where the President’s executive orders have the most sway, the idea that an executive order would beat out the Constitution is patently ridiculous and without support.  The 9th Circuit said as much in their opinion, stating “The Government has taken the position that the President’s decisions 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. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ We are called upon to perform that duty in this case.”  Basically, they told the government that–while executive orders receive deference when it comes to immigration and national security–to say that they are immune to the highest law of the land in the Constitution is a very silly argument indeed.

Thus, with the DoJ focusing on arguing that the Court didn’t have the power to intervene on an unconstitutional executive order, they didn’t really bother to produce any evidence of the danger of keeping the injunction in place.  They produced no evidence of terrorist attacks from refugees out of the named countries, really no evidence at all of dangers presented by keeping the injunction in place.  Thus, they lost 3-0.

What the Ruling Means

To put it most simple terms, upholding this injunction means that the entirety of President Trump’s executive order will simply not take effect until the case is fully resolved–immigration from the countries listed and refugees from around the world can continue to seek opportunity in the United States of America.  At a more abstract level, a unanimous ruling from three judges with differing political ideologies sends a message to the world about how strongly the United States values the Constitutional rights it guarantees.

The case is not completely finished, it can and almost certainly will be appealed directly to the Supreme Court of the United States.  However, with large chunks of the executive order designed to end 90 and 120 days after the order was signed it seems likely that these elements will run their course before a decision could come out of the Supreme Court on the issue.  This might require the Trump administration to come out with updates to the order if they want these elements in effect–updates which could face their own legal challenges.

What’s more, the Supreme Court currently has only eight sitting members.  With a very close ideological split in the Supreme Court, as well as a low chance of appointing a ninth member in time to address the issue, it is possible that the Supreme Court may simply deadlock on the issue as they have many times over the last year of inaction on the seat.  This would leave the 9th Circuit ruling in full force.

Still to come is the decision on the actual constitutionality of the order.  The 9th Circuit itself was fairly non-committal on the issue, simply stating that both sides had powerful interests in conflict–the government with an interest in national security and the power of executive orders, the public with an interest in free flow of travel, avoiding separation of families, and freedom from discrimination.  However, what they did rule on the issue was that the courts should consider the past statements of President Trump and his advisers as to whether the immigration ban was meant to target Muslims in a discriminatory fashion.  With President Trump and his advisors frequently declaring, both on the campaign trail and once in office, that an immigration ban targeting Muslims and favoring Christians is on their agenda it seems that this would allow in strong evidence that the “Muslim Ban” is in fact discriminatory and unconstitutional.

Trump Continues his Concerning Disdain for the Court System

As you might have noticed from his argument to the court in this case, President Trump has a penchant for a concerning belief that the he is above the Judiciary Branch of the U.S. Government.  Immediately after the ruling he took to Twitter to again publically blast the decision.  He has repeatedly questioned the intelligence and competence of every judge who has stood in his way.  Just this week he has publically called the courts “disgraceful,” said that they have less understanding than “a bad high school student,” and heavily implied political bias in the entire U.S. Judiciary system.  To say this lack of respect and understanding for the third branch ensuring checks and balances within our government is disturbing would be an understatement.  Even Neil Gorusch, Trump’s own nominee for the Supreme Court, has called his attitude “demoralizing” and “disheartening.”  Hopefully, a unanimous bi-partisan decision such as this will help him understand the importance of law.

Understanding President Trump’s Muslim-Based Immigration Ban

Since President Trump’s inauguration, his presidency has been fraught with controversy. Trump ran his presidential campaign on a platform that pledged he would “Make America Great Again.” Among his promises were to bar immigration from Muslim nations. Now he’s trying to make good on his promise.

As one of his first orders of business, President Trump signed an executive order on Friday that indefinitely suspends admissions for Syrian refugees to the United States. It further banned all refugees from Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen from entering the United States while prioritizing Christian refugees.

What Exactly Does the Order Do?

Under a guise of protecting Americans from acts of terrorism, President Trump calls his order “extreme vetting” of immigrants. He is careful not to call it a “Muslim Ban.” Instead the order is titled, “Protection of the Nation from Foreign Terrorist Entry into the United States,” and it will restrict entry from countries with a “history of terrorism.”

The order will suspend the entire U.S. Refugee Admissions program for 120 days, thereby blocking all refugees from all countries from resettling in the United States. Additionally, people from Iraq, Syria, Libya, Yemen, Somalia, Sudan and Iran will be barred from entering the United States for 90 days regardless of if they have valid visas. After the 90 days, permanent visa bans could be enacted for those countries and for others. The order also caps the amount of refugees who may be admitted to the United States at 50,000 immigrants, down 60,000 from last year.

Donald Trump

What is an Executive Order?

An executive order is an official statement from the President of the United States regarding how federal agencies are to use their resources. So long as the order is not against any existing laws, they are legally binding for federal agencies. The President is not creating new laws, but instead instructing the government how it must work within the confines of existing law set by the Constitution and Congress. While the Supreme Court may overturn any executive order, it is very rare. Congress may also limit executive orders.

What exactly gives the President such powers? Article II of the Constitution gives the President broad powers under “executive actions.” Executive actions generally are known to include executive orders, but they also include presidential memorandums (basically a step below executive powers), proclamations and directives.

Is a Muslim Ban Legal?

People are already questioning the legality of President Trump’s Muslim ban. Executive orders are legal so long as they do not conflict with existing law. Trump cannot, for example, sign an executive order requiring torture of any enemy combatant. Congress issued a law banning torture of U.S. prisoners back in 2015, and any order allowing torture would fly in the face of existing law.

In the 19th Century, the U.S. enacted laws which excluded all Chinese and almost all Japanese from entering the country. Based on this discriminatory history, Congress passed a law more than 50 years ago that outlawed discrimination against immigrants based on national origin. So no, Trump’s discriminatory Muslim-based ban is not legal. Because Trump is targeting Muslim-majority countries while prioritizing Christian refugees, he couldn’t even argue his order does not deliberately discriminate against Muslims, although he will.

On Saturday, the American Civil Liberties Union (“ACLU”) obtained an emergency stay from a federal New York judge which temporarily halts the deportation of refugees detained in the United States after Trump issued his Muslim-ban. This means that any immigrant, and certainly those from Muslim-majority countries, cannot be deported back to their home country despite Trump’s executive order.

Something to Remember

It’s also important to note that President Trump’s proposed list of banned countries does not include Muslim-majority countries where he has business links. Notably absent from the Muslim ban are Turkey, where Trump has two luxury towers, the United Arab Emirates, where Trump has golf courses, and Egypt, the location of two Trump business companies. Surely, this presents a potential conflict of interest where he is electing not to ban certain Muslim-majority countries because of his business ties, even though these countries also have a history of terrorism.

With all the controversy surrounding Trump’s first full week of office and his approval rating going down steadily, only time will tell whether he will hold firm on his Muslim-based immigration ban.