THE CONSTITUTIONAL IMPLICATIONS OF THE THIRD IMMIGRATION EXECUTIVE ORDER

On January 27, 2017, a mere two days after signing sweeping immigration Executive Orders, President Trump signed yet another Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Order”) which was implemented immediately and caused chaos at airports and outrage throughout this country and the world.

The Order, commonly-known as a “Muslim-ban,” suspends the U.S. Refugee Admissions Program for 120 days, reduces the number of refugees to be admitted, bars indefinitely the admission of Syrian refugees, and bans the entry of individuals from the Muslim-majority countries of Iran, Iraq, Libya, Somalia, Sudan, Syrian, and Yemen, for at least 90 days. As a result, anyone from these countries who sought – or were already approved for, immigrant visas to permanently reside in the U.S. or non-immigrant visas for temporary travel to the U.S. were denied entry. Incredibly, the Order was also made applicable to Legal Permanent Residents (LPRs), who have already been vetted by the government, who were returning home from business trips or vacation. Since then, the Administration has provided a number of “updates” including a couple of updates to clarify the Order is not applicable to LPRs. These updates have led to confusion and as of the writing of this blog continue to change.

Since the implementation of the Order, at least thirteen (13) lawsuits were filed against the new Administration, including a class action lawsuit, alleging Constitutional violations of procedural and substantive due process rights under the Fifth Amendment, as well as the right to readmission as LPRs; discrimination based on country of origin substantially motived by animus toward Muslims in violation of the Equal Protection component of the Due Process Clause of the Fifth Amendment; violations of the Establishment Clause of the First Amendment by giving preference to non-Muslims; and violations of the Administrative Procedure Act and the Religious Freedom Restoration Act. (AILA Doc. No. 17013101).

The lawsuits yielded immediate results in the form of stays and, on February 3, 2017, U.S. District Judge James Robart in Seattle temporarily blocked the Order nationwide. The government quickly sought an emergency stay of Judge Robart’s order but the Ninth Circuit Court of Appeals refused to immediately reinstate the ban. On February 7, 2017, the Ninth Circuit Court heard oral arguments on the government’s motion, and a decision is expected later this week. Once a decision is issued by the Ninth Circuit Court, either side could appeal to the U.S. Supreme Court but, as has been noted, it could prove difficult to find the required five votes given the Court has been missing its ninth justice for almost a year since Antonin Scalia’s death.

The last immigration case that reached the Justices was in 2016 when Texas and 25 other states sued the Obama Administration to prevent the implementation of deferred action for parents, which resulted in a 4-4 decision. (United States v Texas, 136 S. Ct. 2271 (2016)). The other issue is time. How and when the case will reach the U.S. Supreme Court is unknown. The “Muslim-ban” is for 90 days and the issue could be moot by the time a decision is reached by the Justices. Or, as we have seen with so many updates, the government could yet again change the Order.

It would be wise for anyone affected by this Executive Order, especially those who intend to travel, to seek the immediate assistance of immigration counsel.

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