9th Circuit Rejects Government's Emergency Stay Motion in State of Washington v. Trump

INTRODUCTION

On February 9, 2017, the United States Court of Appeals for the Ninth Circuit rendered a decision in State of Washington v. Trump, No. 17-35105 [PDF version]. The case regarded the U.S. government's appeal of the temporary restraining order (TRO) issued by the United States District Court for the Western District of Washington [PDF version] against parts of President Donald Trump's Executive Order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” [PDF version] [see article]. In a per curium opinion (meaning that it was not signed by one of the three judges rendering the decision), the Ninth Circuit denied the Government's emergency motion for a stay of the TRO pending appeal.

In this article, I will briefly explain the Ninth Circuit's reasoning and what may happen next. Please see my companion blog to read my opinion of the decision.

Although the Ninth Circuit did not address the statute directly, the contested provisions of the Executive Order were generally issued under section 212(f) of the Immigration and Nationality Act (INA). Please see our full article to learn more about the statute [see article].

OPINION IN STATE OF WASHINGTON V. TRUMP

JURISDICTION OVER STAY MOTION

Before deciding anything else, the Ninth Circuit had to determine whether it had jurisdiction over the Government's stay motion. Washington and Minnesota (henceforth “the States”) argued that the appeal was premature, because a TRO is not ordinarily appealable. However, the Ninth Circuit held in accord with its decision in Serv. Emps. Int'l Union v. Nat'l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010) [PDF version], that the TRO “possesses the qualities of a preliminary injunction.” Due to the nature of the TRO and the “extraordinary circumstances” of the case, the Ninth Circuit held that “the TRO should be considered to have the qualities of a reviewable preliminary injunction.” Therefore, the Ninth Circuit continued to address other issues.

QUESTION OF STANDING

Next, the Ninth Circuit moved to consider whether the States had standing to bring suit against the United States Government. The government contended that the States lacked standing, and that the appeal of the TRO should be granted on that basis. Citing to the Supreme Court decision in Lujan v. Defs. Of Wildlife, 504 U.S. 560-61 (1992) [PDF version], the Ninth Circuit explained that in order to establish Article III standing, the plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely a favorable decision will redress the injury.” The Ninth Circuit found that the States had standing based on the claim that the Executive Order “causes a concrete and particularized injury to their public universities.” The specific reasoning was that the Executive Order would harm the state universities by preventing academics from the seven specified countries in the Executive Order from traveling to the United States for research, academic collaboration, or personal reasons. Furthermore, the Executive Order prevents students from the seven countries from traveling to the United States to engage in studies or to consider admitting potential students. The Ninth Circuit found that the States had “third party standing” to assert the rights of student, scholars, and faculty at state universities. Furthermore, the Ninth Circuit also held that schools have the right to assert the rights of their students, citing to, citing to Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976) [PDF version] and multiple circuit decisions. Because the Ninth Circuit also held that granting the relief sought by the states would redress the injury to the States, the Ninth Circuit found that the States had Article III standing. Interestingly, the Ninth Circuit did not reach the District Court's finding that the States also had standing based on their roles as parens patriae of the residents living within their borders.

AUTHORITY TO REVIEW

Having determined that the States had standing to sue, the Ninth Circuit then addressed whether the district court had the authority to enjoin the Executive Order. The Ninth Circuit rejected the Government's claims that the district court lacked the authority to review the Executive Order. The Ninth Circuit cited to Boumediene v. Bush, 553 U.S. 723, 765 (2008) [PDF version], wherein the Supreme Court held that Congress and the Executive branch could eliminate federal court habeas corpus jurisdiction over enemy combatants.

The Government cited to Kleindienst v. Mandel, 408 U.S. 753 (1972) [PDF version], in arguing that the district court did not have authority to review a discretionary exercise of immigration authority by the Executive based on a “facially legitimate and bona fide reason.” However, the Ninth Circuit accused the Government of misrepresenting Mandel by omitting key passages, holding that Mandel applied to the lawsuits regarding the denial of an individual visa based on a congressionally enumerated statute to the particular facts of the visa application. The Ninth Circuit distinguished the challenge of the States in the instant litigation by noting that the challenge was to “the President's promulgation of sweeping immigration policy,” rather than to the denial of an individual visa application based on an enumerated congressional standard particular to the facts of a specific visa application.

The Ninth Circuit also found that the district court had authority to review notwithstanding the Government's national security claims. In addition to Boumediene, the Ninth Circuit cited to Aptheker v. Sec'y of State, 378 U.S. 500 (1964) [PDF version], Ex parte Endo, 323 U.S. 283 (1944) [PDF version], and Hamdi v. Rumsfeld, 542 U.S. 507 (2004) [PDF version].

The Ninth Circuit noted that courts owe “considerable deference” to the President's policy determinations with respect to both immigration and national security. However, the Ninth Circuit found nevertheless that the judiciary retained the authority to resolve constitutional challenges to executive action even in these areas.

STANDARD OF REVIEW

The Ninth Circuit explained that its decision whether to stay the TRO was based on the determination of following four questions (citing to Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) [PDF version]):

1. Whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
2. Whether the applicant will be irreparably injured absent a stay;
3. Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
4. Where the public interest lies.

The first two factors pertain to the Government in this case, which was seeking the stay. The third factor referred to the States, seeking to defend the TRO. The fourth factor involved weighing the public interest in an outcome in favor of the Government and an outcome in favor of the States. The Ninth Circuit found that all four factors weighed against granting the Government's stay motion in the instant case. We will examine the Ninth Circuit's reasoning in the forthcoming subsections.

LIKELIHOOD OF SUCCESS ON DUE PROCESS CLAIM

The Ninth Circuit held that the Government failed to show that the Executive Order provided adequate Fifth Amendment due process protections to the people affected.

The States had argued that the Government violated the due process rights of various aliens in at least three different ways:

1. Sec. (3)(c) of the Executive Order denies reentry to certain lawful permanent residents (LPRs) and nonimmigrant visa-holders without constitutionally sufficient notice to respond;
2. Sec. (3)(c) prohibits certain LPRs and nonimmigrant visa-holders present in the United States from “exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter reentering in the United States”; and
3. Sec. 5 “contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.”

The Ninth Circuit took the position that the district court “held generally” that the States were likely to prevail on the basis of due process claims, “without discussion or offering analysis as to any specific alleged violation.” It is worth noting that a careful review of the TRO reveals that at no point did the district court rule that the States were likely to prevail on the merits of their due process claims.[1] Rather, the district court decision offered no reasoning as to the grounds on which the States were likely to prevail.

The Ninth Circuit cited to Zadvydas v. Davis, 533 U.S. 678, 693 (2001) [PDF version], in holding that the due process clause applies to all persons within the United States. It also cited to Landon v. Plasencia, 459 U.S. 21, 33-34 (1982) [PDF version], which held that certain aliens attempting to reenter the United States after traveling abroad have due process rights. Based on these precedents, the Ninth Circuit held that returning LPRs have constitutional due process rights. Furthermore, the Ninth Circuit rejected the Government's argument that the claims regarding LPRs had been mooted by the White House chief counsel's post-issuance guidance that the Executive Order does not apply to LPRs [see article].

Furthermore, the Ninth Circuit held that nonimmigrant visa-holders who have been in the United States but either temporarily departed or wished to temporarily depart, refugees, and visa applicants who have a relationship with a U.S. resident or an institution that may have rights to assert may have “potential claims” regarding due process rights. The Ninth Circuit also held that persons in the United States unlawfully may also have claims under Zadvydas. The Ninth Circuit relied on this analysis in declining to limit the scope of the TRO to LPRs.

The Ninth Circuit relied on Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015) [see article], aff'd by an equally divided Court, 136 S.Ct 2271 (2016) [see article], in declining to limit the geographic scope of the Executive Order.

LIKELIHOOD OF SUCCESS-RELIGIOUS DISCRIMINATION

The States argued that the Executive Order violated the Establishment and Equal Protection Clauses of the United States Constitution “because it was intended to disfavor Muslims.” To this effect, the States brought to bear statements from President Trump during the presidential campaign about intending to implement a “Muslim ban.” The States argued that the sections 5(b) and 5(e) of the Executive Order were intended to implement such a Muslim Ban. The Ninth Circuit cited to precedent that evidence of purpose besides the face of the challenged law can be considered in evaluating religious discrimination claims. To this effect, the Ninth Circuit referred to Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) [PDF version]; Larson v. Valente, 456 U.S. 228, 244 (1982) [PDF version]; and Village of Arlington Heights v. Metro Housing Dev. Corp., 439 U.S. 252, 266-68 (1977) [PDF version].

The Ninth Circuit stated that the States' religious discrimination claims were serious and presented significant constitutional questions. However, the Ninth Circuit reserved further consideration of the claims until the merits of the appeal have been fully briefed.

BALANCE OF HARDSHIPS AND THE PUBLIC INTEREST

The Ninth Circuit held that the Government had failed to show that a stay was necessary to avoid irreparable injury. The Ninth Circuit cited to Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010) [PDF version], which held that “the Government's interest in combating terrorism is an urgent objective of the highest order.” However, the Ninth Circuit noted that the Government had provided no evidence that any alien from the seven countries designated in the Executive Order has perpetrated a terrorist attack in the United States. The Ninth Circuit also rejected the Government's claims that it suffered as a result of the TRO an irreparable institutional injury by erosion of the separation of powers because it may pursue its claims in further litigation. By contrast, the Ninth Circuit held that the States provided “ample evidence” that the reinstatement of the Executive Order, even temporarily, would cause substantial injury.

The Ninth Circuit rejected the Government's claim that the Executive Order's waiver provisions are a sufficient safety valve for “those who would suffer unnecessarily.” The Court noted that the Government “offered no explanation for how these provisions would function in practice.” Additionally, the Ninth Circuit noted that the Government did not explain how the waiver provisions would suffice to avoid causing irreparable injury to the States.

WHAT HAPPENS NEXT?

Shortly after the decision was issued, a judge on the Ninth Circuit who was not on the 3-judge panel that denied the government's stay made a sua sponte (of his or her own accord) request that the full Ninth Circuit vote on whether the order issued should be reconsidered en banc (before the entire court) [PDF version]. The Ninth Circuit requested briefing from the parties to be filed by February 16, 2017, as to whether the matter should be considered en banc.

The Government has multiple options as to how to proceed.[2] It may seek an emergency stay from the Supreme Court with Justice Anthony Kennedy, which would require five of the eight justices to grant the stay. The Government may also seek a hearing before judgment, which would only require the vote of only four justices. The Government may also decline to do anything and instead file briefs on the merits of the case before the same three-judge panel of the Ninth Circuit.

Alternatively, the Trump Administration may opt to withdraw the Executive Order and replace it with an Executive Order that would be more likely to survive judicial scrutiny. One of the most obvious changes that the President could make in a revised Executive Order would be to explicitly exempt LPRs from its scope. Furthermore, the President could consider exempting certain other aliens from the scope of the order that drew concern from the district court and the Ninth Circuit.

It is unclear at this time which path the Trump Administration will take. There have been reports suggesting that it would withdraw the Executive Order and replace it with a modified or revamped one, and reports that the Administration is still considering endeavoring to take the matter to the Supreme Court. We will update the site with more news on this issue as it happens. Please see my blog on my opinion of the Ninth Circuit decision.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Blackman, Josh, “Instant Analysis of Washington v. Trump,” joshblackman.com, (Feb. 9, 2017)
2. See Blackman, Josh, “The Procedural Paths Forward in Washington v. Trump,” joshblackman.com, (Feb. 10, 2017)

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President Trump's Impromptu Law Lecture

In a recent post, I criticized the United States Court of Appeals for the Ninth Circuit's decision to uphold a temporary restraining order (TRO) (as a preliminary injunction) against aspects of President Donald Trump's Executive Order suspending entry for aliens from seven countries, and I also criticized the President for his reckless off-the-cuff statements during the litigation [see blog]. However, on February 8, 2017, President Trump engaged with the issue more productively, by taking a moment to discuss the statute under which he issued the Executive Order instead of attacking individual judges and making statements about the proceedings without consulting the lawyers tasked with defending him [link to remarks]. Please see our comprehensive article on section 212(f) of the Immigration and Nationality Act (INA) to learn about the provision in even more detail than offered by President Trump in his impromptu lecture [see article].

PRESIDENT TRUMP'S REMARKS

The following is President Trump's parsing of section 212(f);

And that's why it was done. And it couldn't have been written any more precisely. It's not like, oh, gee, we wish it were written better. It was written beautifully. So just listen, here's what it says. This is what they're arguing:

“Whenever the President finds that the entry of any aliens” — okay, the entry, the entry of any aliens — “or of any class of aliens” — so any aliens, any class of aliens — “into the United States” — so the entry of people into the United States. Let's say, just to be precise, of aliens into the United States.

So any time — “whenever the President finds that the entry of any alien or any class of aliens into the United States would be detrimental to the interests of the United States” — right? So if I find, as President, that a person or group of people will be detrimental to the interests of the United States — and certainly there's lots of examples that we have, but you shouldn't even have them, necessarily — he may be — and “he may by proclamation, and for such period as he shall deem necessary…” Now, the only mistake is they should have said “he or she.” But hopefully, it won't be a she for at least another seven years. After that, I'm all — (laughter and applause.) See? I just noticed that, actually. I just noticed it. I'm saying, whoa, this is not politically correct. It's correct, but it's not politically correct, you know, this is the old days.

He may by proclamation and for such period as he shall deem necessary — so here it is, people coming in — suspend the entry of all aliens. Right? That's what it says. It's not like — again, a bad high school student would understand this. Anybody would understand this. Suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens. Okay, so you can suspend the aliens, right? You can suspend the aliens from coming in — very strong — or impose on the entry of aliens any restrictions he may deem to be appropriate.

Okay. So you can suspend, you can put restrictions, you can do whatever you want. And this is for the security of the country — which, again, you're the chiefs, you're the sheriffs. You understand this.

And I listened to lawyers on both sides last night, and they were talking about things that had just nothing to do with it. I listened to a panel of judges, and I'll comment on that — I will not comment on the statements made by certainly one judge. But I have to be honest that if these judges wanted to, in my opinion, help the court in terms of respect for the court, they'd what they should be doing. I mean, it's so sad.

They should be — when you read something so simple and so beautifully written, and so perfectly written — other than the one statement, of course, having to do with he or she — but when you read something so perfectly written and so clear to anybody, and then you have lawyers and you watched — I watched last night in amazement, and I heard things that I couldn't believe, things that really had nothing to do with what I just read.

ANALYSIS

President Trump was on to an interesting idea in deciding to discuss and parse the language of section 212(f) of the INA. To be sure, it was not quite the standard of a law-review article or of an article that we would post here on site. However, President Trump is not a lawyer, but instead is a political official who must defend his actions not only in court, but also to the broader public.

In his typical style, President Trump exposed many Americans to a statute that very few have ever seen in order to explain the central issue at hand regarding the litigation of his Executive Order. Had President Trump decided to give this speech when he issued the Executive Order, instead of issuing the Order without any prior explanation or guidance, he would have likely been able to frame the debate favorably for the administration from an early point in the process. As the litigation goes forward, President Trump — and the country — would be far better served by him actually explaining and defending his policies instead of attacking individual judges and critics on Twitter (something he did not even manage to do for the duration of the speech that the above passage was taken from). If he proved anything in the campaign, it is that he has a preternatural ability to command attention when he speaks, and that his simple and blunt style appeals to millions of Americans.

In a blog that I posted on the occasion of President Trump's dramatic election victory, I included two quotes from our 30th President, Calvin Coolidge, that would seem to be more relevant today than they were even then.

First:

“The words of the President have an enormous weight and ought not to be used indiscriminately.”

Second:

“It would be exceedingly easy to set the country by the ears and foment hatreds and jealousies, which, by destroying faith and confidence, would help nobody and harm everybody.”

We can only hope that what we saw on February 8 may be the seeds of a change in how he will defend his more contentious policies — although subsequent signs have been mixed at best. President Trump would do himself and the country a great service by learning to heed the wise advice of one of his great Republican predecessors, Calvin Coolidge.

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President Trump's Executive Order Part 2: Legal and Policy Analysis

INTRODUCTION

In this article, I assess the most contested provisions of President Trump's Executive Order, titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (82 FR 8977 (Jan. 27, 2017)) [PDF version] as a matter of legal soundness and policy. Before reading this article, please see my blog on the controversial provisions of the EO [see blog] as well as our website's detailed analysis of section 212(f) of the Immigration and Nationality Act (INA). Please note that there is fast-moving litigation in the federal courts regarding the EO, and a nationwide temporary restraining order was issued against parts of it by the United States District Court for the Western District of Washington [PDF version]. In this post, we will focus on the language of the EO and how it has been implemented as of February 5, 2017. Please continue following our website for further analysis of the EO and other immigration news, as well as developments regarding the implementation of the EO and related court decisions.

MY ANALYSIS OF THE LEGALITY AND WISDOM OF THE EXECUTIVE ORDER

Having reviewed the most controversial provisions of the EO [see blog], I will now offer my opinion of the legality of these provisions and whether, if legal, they constitute good policy. I will do so in light of the language and enforcement of the EO and not the litigation that is in progress. Please see the Immigration Blog to find blog posts about developing news regarding the litigation contesting the EO.

AS APPLIED TO PERMANENT RESIDENTS

The EO initially suspended entry for LPRs from seven countries that have already been designated under section 217(a)(12) for restrictions of their nationals using the VWP. To the effect that it suspended the entry of LPRs, it is my opinion that the EO was both unlawful and constituted bad policy. LPRs returning to the United States are generally not treated the same as those seeking admission into the United States as nonimmigrants or in any other non-permanent status or configuration. Under most circumstances, returning LPRs are not considered to be seeking admission into the United States [see article]. Furthermore, under longstanding precedent, LPRs are under most circumstances not considered to be making a new “entry” into the United States upon return. Because section 212(f) pertains to the President's power to suspend “entry,” it is highly suspect to interpret the provision as allowing the President to deny entry to an LPR who is not considered to be seeking “admission” (under current law) or a new “entry” (under the pre-1996 law). Multiple federal district courts issued injunctions against the application of the EO to LPRs, and they were correct to do so. Fortunately, the White House reversed its original interpretation of the EO and has decided that it never applied to LPRs [see blog]. Please see the applicable section of our full article on section 212(f) to learn about the statutes and case law that underpin my argument on this point [see section].

As a matter of policy, applying the EO to LPRs was indefensible even if there were no legal questions. LPRs have already gone through an extensive application process and have been afforded the privilege of residing permanently in the United States. As Charles C.W. Cooke of the National Review notes — himself an LPR — “these are people who have been granted permanent residency; people who have made their lives here on the understanding that to fail to do so will incur penalties.”[1] Indeed, the failure to reside in the United States may lead to abandonment of LPR status [see article], with limited exceptions for certain workers from Canada and Mexico [see article]. Cooke added, “As a permanent resident myself, I don't expect to be handed a passport or treated like a citizen… But I do expect to be treated differently than a guy who got off a plane for the first time…”

If an LPR is suspected of being deportable, there are many provisions in section 237 of the INA to initiate proceedings against the LPR. However, one of the virtues of LPR status is that it provides more process protections against being denied entry into the United States, removed, or stripped of status than do the various nonimmigrant statuses.

AS APPLIED TO NON-PERMANENT RESIDENTS

With regard to suspending entry for non-LPRs from the seven specified countries, it is my opinion that the President is well within his authority. Section 212(f) gives the President sweeping authority to issue a proclamation finding that the entry of any aliens, or of a class of aliens, is detrimental to the interests of the United States. Although courts have hitherto not found any restrictions on the President's section 212(f) authority, it is likely that certain exercises of it could trigger scrutiny from the courts. To learn more about this issue, please see the relevant portion of our section 212(f) article [see section].

For this EO, the President suspended immigration from seven countries that have already been designated under section 217(a)(12) for restrictions of their nationals using the VWP. Rather than immediately suspend immigration to other countries that may also be compromised by terrorism, the President instructed relevant agencies to conduct a full review along with formulating and implementing new vetting procedures. The reasoning for implementing limited restrictions immediately was to lessen the strain on the relevant agencies while conducting said review.

There has been an interesting debate regarding the question of whether the President has the authority to suspend entry by all citizens of designated countries under section 212(f). David J. Brier of the Cato Institute argued that the Immigration and Nationality Act of 1965's prohibition on discrimination against immigrants on the basis of national origin bars suspending entry for persons from an entire country based on section 212(f).[2] Section 212(f) was promulgated in 1952. However, I agree with Andrew C. McCarthy's assertion in the National Review that absent Congress' repealing or amending section 212(f), the provisions should be read in harmony, where plausible.[3] In banning national origin discrimination for the purpose of immigrant visas, Congress did not see fit to abrogate section 212(f), or at the very least limit its scope. As McCarthy noted, “Congress is presumed to not repeal statutes by implication; there must be a clear expression of legislative intent.” Because there are interesting questions on this issue, I look forward to posting another blog on it in the future as the issue is litigated.

In the case of this EO, the President limited its scope to countries already designated as countries of concern by the Congress and by then-Secretary of State John Kerry last year. The President held off on designating further countries until a full review is completed. It is important to remember that aliens abroad, even those with nonimmigrant visas, do not have a right to enter the United States. The wisdom of the order aside, the President was within his authority to issue it, and I hope to see the courts uphold his authority to have done so. By the same token, the President was well within his authority to suspend the entry of Syrian refugees for the foreseeable future.

Please see the final section of this article [see conclusion] for my analysis on the wisdom of the EO.

SUSPENDING THE REFUGEE PROGRAM

I find the EO's suspension of the U.S. Refugee Admissions Program (USRAP) for 120 days to be reasonable, as I do the reduced cap of 50,000 for FY-2017. The President is exercising his authority judiciously to conduct a thorough review of the refugee program, provided the number of refugees that we have been accepting from regions of the world with high anti-American sentiment.

Furthermore, certain statements from the Obama Administration begged question about the effectiveness of current vetting practices. For example, in September of 2016, Senator Ted Cruz of Texas was unable to procure a definitive answer from the Director of the United States Citizenship and Immigration Services (USCIS), about the extent to which testimony of an applicant for refugee status must be corroborated by concrete evidence.[4] In previous blogs, I have noted specific problems regarding the vetting of Syrian refugee applicants given the security situation there [see blog].

FAVORING SPECIFIC RELIGIOUS MINORITIES FACING RELIGIOUS PERSECUTION IN REFUGEE ADMISSIONS

The final particularly controversial point of the EO was the President's provision that applicants for refugee status based on religious persecution who are religious minorities in their home countries should be given preference in refugee applications.

In a blog that I published on November 29, 2015, I rejected the notion, as espoused by then President Barack Obama, that religion was not relevant to refugee considerations [see blog]. Under section 101(a)(42) of the INA, religious persecution is, in fact, one of the five categories under which an individual can seek refugee status. The United States has given preference to religious minorities before in similar contexts (see e.g., “Lautenberg Amendment” PL 101-167).

On March 18, 2016, then-Secretary of State John Kerry asserted that the Islamic State (ISIS) was perpetrating genocide against Christians, Yazidis, and other religious minority groups in Iraq and Syria.[5] There was little question, even by the previous administration, that religious minorities were in grave danger in regions of the Middle East and North Africa where ISIS is active. Interesingly, however, on November 1, 2016, it was reported that of the 13,210 Syrian refugees taken into the United States since the beginning of 2016, 12,966 were Sunni while only 24 were Shi'a Muslim, 110 were non-Sunni/Shi'a Muslims, 77 were Christian, and 24 were Yazidi.[6] Whatever the reason, it seems peculiar that two groups that the Secretary of State found were the victims of genocide in Syria, and who make up roughly 10% of Syria's population, comprised approximately 0.7% of the refugee admissions.[7] Beyond Christians and Yazidis, it seems odd that Shi'a Muslims, who make up 13% of Syria's population, had so few refugees as well considering the amount of territory commanded by ISIS.

Although the resettlement figures do not bear it out, Knox Thames, the State Department's special adviser for religious minorities, stated in 2015 under the Obama Administration that “[d]ue to the unique needs of vulnerable religious minorities communities, the State Department has prioritized the resettlement of Syrian Christian refugees and other religious minorities fleeing the conflict.”[8] It was certainly not unconstitutional for an official of the Obama Administration to state — plainly — that they would give priority to refugee claims made by religious minorities in Syria. It is no less unconstitutional for the Trump Administration to do so. Furthermore, as constructed, giving preference to religious minorities would potentially give preference to non-Sunni Muslims in Syria, and to Muslim applicants for refugee status in places in the world where Muslims, or Islamic sects, are both the minority religion and face religious persecution.

In response to the EO, Chaldean Catholic Archbishop Bashar Warda of Erbil expressed support for the EO's preference to religious minorities (while also expressing reservations with other aspects of the EO):

“There were no protests when Syrian Christians were only let in at a rate that was 20 times less than the percentage of their population in Syria. I do not understand why some Americans are now upset that many minority communities that faced a horrible genocide will finally get a degree of priority in some manner.” [9]

CONCLUSION

For reasons I have discussed in previous blogs, I support the idea behind the EO. It is indisputable, as I previously noted, that majority populations of many countries in the Middle East — including the seven designated in the EO — support ideas that, when implanted, represent a danger to the United States. The Daily Caller reported that from March 2014 to June 2016, at least 20 alleged terrorists entered the United States from the seven countries specified in the EO.[10] There are also dangers presented separate from being an actual member of a terrorist organization, but rather support , for example, execution or severe corporal punishment for apostasy, homosexuality, or adultery [see blog]. While I strongly oppose bans based on religion or religious affiliation, I support President Trump's call for recognizing the danger of totalitarian and radical Islamist ideas in the Middle East and adjusting our vetting procedures accordingly. Furthermore, I have previously expressed support for suspending the Syrian refugee program due to the impossibility of properly vetting applicants, and I stand by that position now [see blog]. The first priority of our immigration system must be to ensure the safety and security of the American people.

However, the Trump Administration made a hash out of implementing and enforcing the EO, and that is categorically inexcusable. There is ample evidence that the President and his staff rushed to issue the EO without consulting adequately with the officials who would be responsible with implementing and enforcing it. Furthermore, there is evidence that the Trump Administration overrode the Department of Homeland Security's initial opinion that the EO should not apply to LPRs. The continuing failure to provide comprehensive guidance for dual nationals of an affected country and an unaffected country has also been a significant oversight. President Trump's stated reasons for issuing the EO without warning to those affected or to the agencies involved is — to say the least — lacking. The refusal of the President and his inner-circle to acknowledge any error makes it hard to offer the benefit of the doubt.

Even if the EO had been perfectly drafted and implemented, it would have been highly controversial. The White House did itself and the nation a disservice by implementing it precipitously if not recklessly and by not being prepared to offer a coherent defense of its otherwise reasonable provisions. While the DHS and the Department of Justice (DOJ) have worked hard to interpret, implement, and defend the EO on the fly, certain officials in the President's circle seem more concerned with making a political point than in helping to ensure the safety of the American people.

As a final point, the implementation of the EO will create problems for both the Administration and for people who, like me, support stronger vetting of applicants from dangerous regions of the world. First, the lackluster implementation and defense of the EO will make it difficult for President Trump to institute further reforms to strengthen our immigration system after the expiration of his temporary suspensions, regardless of whether this EO is ultimately upheld in court. Secondly, as Andrew McCarthy points out on the National Review Online, “[b]ad implementation begs victims with legitimate grievances and heightened judicial scrutiny — the kind of bad facts that tend to make bad law. And bad law makes it much harder to develop good policy. It can become a cycle of self-defeat.”[11]

The Trump Administration has made many errors in implementing the EO and accordingly has eroded its already shaky public trust. It is incumbent on the Administration to salvage immigration reform from the resulting mess, to defend the EO's lawful provisions effectively so as to preempt the creation of bad judicial precedents, and to learn from its mistakes for future actions in the immigration and in other contexts.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Cooke, Charles C.W., “Trump's Executive Order Covers Green Cards — That Makes No Sense,” nationalreview.com/corner, (Jan. 28, 2017)
2. Bier, David J., “Trump's Immigration Ban Is Illegal,” nytimes.com, (Jan. 27, 2017)
3. McCarthy, Andrew C., “Responding to Patterico on Trump's Executive Order on Immigration,” nationalreview.com/corner, (Feb. 1, 2017)
4. Barkoukis, Leah, “Cruz Grills DHS Official Into Admitting Some Refugees Are Allowed Into US Based on Their Testimony Alone,” townhall.com, (Sep. 29, 2016)
5. Labott, Elise and Tal Kopan, “John Kerry: ISIS responsible for genocide,” cnn.com, (Mar. 18, 2016)
6. Goodenough, Patrick, “13,210 Syrian Refugees So Far in 2016; Up 675% from 2015; 99.1% Are Muslims,” cnsnews.com, (Nov. 1, 2016)
7. Wikipedia, “Syria,” https://en.wikipedia.org/wiki/Syria#Religion, (retrieved Feb. 2, 2015)
8. Shea, Nina, “The State Department Turns Its Back on Syrian Christians and Other Non-Muslim Refugees,” nationalreview.com, (Nov. 2, 2016)
9. Morissey, Ed, “Iraq archbishop: Where were all those protesters while ISIS committed genocides?” hotair.com, (Feb. 2, 2017)
10. Prestigiacomo, Amanda, “Report: 20 Alleged Terrorists From Countries Listed on Trump Order Entered US Since 2014,” dailywire.com, (Jan. 31, 2017)
11. McCarthy, Andrew C., “Trump's Order on Entry into the U.S.: Implementation Problems,” nationalreview.com, (Jan. 30, 2017)

Lawyer website: http://myattorneyusa.com

White House Counsel Holds That Executive Order Does Not Apply to LPRs

Update: The United States District Court for the Western District of Washington issued a temporary restraining order against the entry restrictions in the Executive Order that is in effect as of February 5, 2017. Please follow our website for further updates.

On February 1, 2017, the Counsel to the President, Donald F. McGahn II, issued a Memorandum to the then-Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security titled “Authoritative Guidance on Executive Order Entitled 'Protecting the Nation from Foreign Terrorist Entry into the United States' (Jan. 27, 2017).”[1] The Memorandum concerns the enforcement of President Donald Trump's recent Executive Order suspending entry for aliens from seven specified countries [PDF version].

The Memorandum covers to sections 3(c) and 3(e) of the Executive Order. Section 3(c) suspends immigration from the seven countries specified in section 217(a)(12) of the Immigration and Nationality Act (INA) for 90 days, while section 3(e) directs the Secretary of Homeland Security, in consultation with the Secretary of State, to submit to the President a list of countries recommended for similar entry prohibitions that do not provide adequate information needed to adjudicate visas, admissions, or other benefits under the INA. Specifically, the Memorandum clarifies to the Secretary of State, the Attorney General, and the Secretary of Homeland Security that the Executive Order does not apply to lawful permanent residents of the United States (LPRs).

The Executive Order was initially interpreted as applying to LPRs. After several federal district courts stayed the enforcement of the Executive Order against LPRs, the DHS issued guidance that the entry of LPRs from the restricted countries would generally be found to be in the national interest, which would allow entry under the Executive Order. The new guidance from the White House means that the Executive Order will not apply to LPRs. This means that going forward, LPRs from restricted countries will not require waivers or exemptions under the EO in order to enter the United States. Because many of the early court rulings against the EO were based on its application to LPRs, the White House's new position may serve to preempt much of the litigation on this issue.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. AILA Doc. No. 17020300 (Posted Feb. 3, 2017)

Lawyer website: http://myattorneyusa.com