Trump administration

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TRUMP EXPECTED TO ISSUE NEW EXECUTIVE ORDER NEXT WEEK

In a news conference held Thursday, President Trump announced that rather than continue fighting for the reinstatement of his controversial executive order on visas and refugees, he will instead start from scratch and issue an entirely new executive order on the matter. President Trump expects to release the new order next week.

In its supplemental brief to the Ninth Circuit filed Thursday, the Justice Department confirmed Trump’s announcement, stating that “[r]ather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.” The Department filed that brief in response to Chief Judge Thomas’s call for a vote considering whether the three-judge panel’s ruling blocking Trump’s original travel ban should be reviewed by the full Court. The Department further stated that though the injunction “readily meets the normal standards for rehearing,” the government “respectfully submits that the most appropriate course would be for the Court to hold its consideration of the [pending] case until the President issues the new Order and then vacate the panel’s preliminary decision.”

Both the President and the Department of Justice have stated that the new executive order will obviate the constitutional concerns articulated by the Ninth Circuit in its appraisal of the original order, though the Executive’s maintains that the Court’s ruling was “seriously flawed.” Whether the legal battles over the President’s immigration reform are over however, largely depends on the contents of his new order.

 

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The 9th Circuit Refuses to Reinstate President Trump’s Travel Ban

The 9th Circuit Court of Appeals on Thursday upheld a lower court’s stay blocking enforcement of President Trump’s ban on admitting travelers from seven predominantly-Muslim countries: Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen. The court’s decision means that the Trump administration will likely choose to either appeal the decision to the Supreme Court, or attempt to issue a new Executive Order that complies with the constitution. 

Due Process Violations

The court based its ruling largely on the Executive Order’s due process violations, namely a lack of notice and hearing prior to restricting an individual’s ability to travel. Although the government argued that the travel ban mostly impacts individuals who have no protection under the Constitution’s Due Process Clause, the 9th Circuit disagreed. Citing the Supreme Court’s decision in the 2001 case Zadvydas v. Davis, the court reminded the government that the protections of the Fifth Amendment’s Due Process Clause apply not only to citizens, but to all persons within the United States, “regardless of whether their presence here is lawful, unlawful, temporary, or permanent.” The 9th Circuit stated that restricting the ability of lawful permanent residents and temporary visitors to travel and return is likely an impermissible violation of the people’s due process rights.   

Reviewability

The government initially argued that the President’s actions in the field of immigration are unreviewable by the courts when motivated by national security concerns, even when the actions may violate constitutional rights and protects. While recognizing the deference that courts have historically given to the political branches in matters of immigration and national security, the 9th Circuit stated in its decision that this assertion lacks precedent and “runs contrary to the fundamental structure of our constitutional democracy.” 

Government Interest  

In weighing the government and public interests and the potential injury to those affected by the Travel Ban, the court found that the government failed to provide any evidence that persons from any of the seven countries named in the Executive Order had perpetrated a terrorist attack in the United States. Additionally, the court pointed to the strong public interest in the free flow of travel, preventing the separation of families, and protecting the people’s freedom from discrimination, which in this case would likely outweigh the government interest in banning travel from these countries.

 

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January 27th Executive Order Regarding Immigration

On Friday, January 27, 2017, President Trump signed an executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”   The following provides information on the key provisions of this order and any clarifications and updates that are known to date:

·         The order bans entry for 90 days (from January 27, 2017) of immigrants and non-immigrants from the following countries:  Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  (The following visas are exempt from this order: A, G, NATO, C-2 and C-3).  All embassies and consular posts have been instructed to immediately suspend the issuance of non-immigrant and immigrant visas for nationals of those countries.  Other countries may be added to the list in the future.

o   Department of Homeland Security (DHS) has clarified that the order applies to anyone who holds a passport from a designated country, including dual citizens who hold passports from a designated country as well as a non-designated country.

o   Legal Permanent Residents (LPR) may be admitted on a case-by-case basis following security review.  DHS has deemed entry of LPRs to be in the national interest and absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, LPR status will be a dispositive factor in case-by –case determinations.

·         The order suspends the U.S. Refugee Admissions Program for 120 days.   However, there may be exceptions made on a case-by-case basis, based on whether it is in the national interest, the person poses a risk to the U.S., the person is a religious minority facing religious persecution or the admission of the person is required to conform U.S. conduct to an international agreement, or the person faces hardship when already in transit.

o   The order suspends indefinitely the admission of Syrian refugees and reduces the number of refugees allowed to be admitted to the U.S. in 2017 to 50,000.

·         The order further provides for additional security protocols as well as requires that the U.S. consular officers interview everyone who applies for a non-immigrant visa.

On January 28, 2017, the U.S. District Court for the Eastern District of New York in Darweesh v. Trump, signed an emergency order prohibiting the removal of individuals with refugee applications approved by USCIS as part of the U.S. 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 the U.S.  This emergency order applies to all noncitizens who are detained at U.S. airports because of this January 27, 2017 executive order and will remain in effect until a full hearing is held.

Stern & Curray strongly condemns the President’s executive orders and maintains they are discriminatory and unconstitutional.  We will continue to keep clients and the public apprised of any developments in the immigration laws.

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President Trump Signs Series of Executive Orders on Immigration

In a series of executive orders announced on Wednesday, President Trump took the initial steps to significantly revise U.S. immigration policy from that of the Obama Administration. The executive orders call for a number of changes to various immigration programs, including DHS’s immigration enforcement priorities, the U.S. Refugee Admissions Program, visa issuances from specific countries, and the much-talked-about border wall.

Some of the announced changes include the following:

  • A revised list of immigration enforcement priorities that includes, among other categories, individuals charged with “any criminal offense,” even where the individual has not yet been convicted.
  • An increase in the number of immigrant detention centers and federal border patrol agents.
  • A dramatic decrease in the number of refugees admitted annually under the U.S. Refugee Admissions Program from 110,000 to 50,000.
  • A 120-day freeze on all refugee admissions, followed by a resumption of admissions only from countries determined to have sufficient safeguards to “ensure the security and welfare of the United States.”
  • A 30-day freeze on admissions of immigrants or nonimmigrants from countries designated as “areas of particular concern,” namely Iraq, Syria, Iran, Libya, Somalia and Yemen, followed by a potential indefinite suspension of admissions from these countries.
  • Construction of a contiguous, physical wall along the US/Mexico.

Although some of these proposed actions – such as the border wall, detention centers and increased number of border agents – will require Congress to allocate funding before they can be implemented, many of the actions will likely go into effect immediately.

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