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Thursday, August 03, 2017

Travel in the Trump Era (July 2017 Update)

Written by  Linda A. Dominguez

The Fourth Circuit Court of Appeals issued a decision on the preliminary injunction by the US District Court for the District of Maryland against enforcement of both the first Executive Order (“EO-1”) and the second Executive Order (“EO-2”) on May 25th, 2017, and then amended the decision on June 15th, 2017. The Fourth Circuit stated that the main issue in the case was whether the US Constitution “protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” The court found that the president’s broad power to deny entry into the US “cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

The court went further and sounded the alarm against the government’s argument that portions of the preliminary injunction were a problem because the court system has no right to review them. “Although the Supreme Court has certainly encouraged deference in our review of immigration matters that implicate national security interests, it has not countenanced judicial abdication, especially where constitutional rights, values, and principles are at stake.” Also, the court said, “the political branches’ power over immigration is not tantamount to a constitutional blank check, and that vigorous judicial review is required when an immigration action’s constitutionality is in question.”

President Trump’s habit of tweeting his opinions concerning various actions he and the personnel in the White House take on any given day has served to undermine the positions taken by the government attorneys in their claims that EO-1 and EO-2 are not a Muslim ban. The Fourth Circuit, in upholding the preliminary injunction issued by the Maryland federal judge, reviewed those tweets, as well as other statements made both during the election campaign and once he entered office, finding that the travel ban was very discriminatory in application, based on religion and, thus, the plaintiffs in that case had proven that there was irreparable harm that would be caused by allowing the EOs to be enforced.

The Fourth Circuit seemed to be particularly offended by some of the arguments of the government attorneys and refused to adopt them. “The government has repeatedly asked this court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers. We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution” (emphasis added).

On June 12th, 2017, the Ninth Circuit Court of Appeals decided the Washington State case involving the preliminary injunction order of the US District Court in that state. Their decision also upheld the preliminary injunction against the Executive Orders.

The federal government appealed the decisions of both courts to the US Supreme Court, which issued a partial stay of the preliminary injunction in the Government’s favor until the case can be heard in the fall of 2017. The stay of the preliminary injunctions applied only to those persons “who lack any bona fide relationship with a person or entity in the US.” What this means is that if a person is granted a visa or refugee status outside of the US and they do not have a relative living in the US or have a “relationship” with an “entity in the US,” they can be denied entry for a limited period of time. However, if there is a family relationship or the person is someone who has a student visa to resume studies at a college or university (or is in a situation where they enter the US to teach or speak at an event that has occurred in the past and they have no visa violations from prior visits), then the preliminary injunction remains in place and those persons are to be admitted into the US.

The federal government attempted to claim that the phrase “familial relationship” did not include persons outside of the nuclear family, i.e., grandparents, cousins, nieces and nephews, grandchildren, but that claim was struck down by the Ninth Circuit.

We now must wait for the fall to find out whether the preliminary injunctions will continue to remain in force and permit people with ties to the US to enter or whether the current White House will be permitted to enforce a ban on travel based on religion. Stay tuned, my friends!

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