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Federal Court issues temporary partial stay of Trump Executive Order (Update: Copy of Order)

Federal Court issues temporary partial stay of Trump Executive Order (Update: Copy of Order)

No one detained in U.S. under Executive Order can be removed, for now, remainder of EO still in place.

https://www.youtube.com/watch?v=npvd-VVqh9Q

(ORDER added at bottom of post)

A federal court in Brooklyn, NY, issued a temporary stay against enforcement of one aspect of Trump’s Executive Order on visas and refugees.

The suit was brought by the ACLU on behalf of two detained men seeking to prevent being sent back to Iraq. The Judge ordered a halt to removals of persons detained in the U.S. under the Executive Order. The lawsuit did not seek to challenge other aspects of the Executive Order.

UPDATE: The Order is posted  It is clear that this only pertains to persons detained who, prior to the Executive Order, had valid visas or refugee applications already approved, or legally entered the U.S. from one of the 7 countries subject to the Executive Order:

IT APPEARING to the Court from the Emergency Motion for Stay of Removal, the other submissions, the arguments of counsel, and the hearing held on the 28th of January, 201 7,
1. The petitioners have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution;
2. There is imminent danger that, absent the stay of removal, there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 2 7, 2017 Executive Order;
3. The issuance of the stay of removal will not injure the other parties interested in the proceeding;
4. It is appropriate and just that, pending completion of a hearing before the Court on the merits of the Petition, that the Respondents be enjoined and restrained from the commission of further acts and misconduct in violation of the Constitution as described in the Emergency Motion for Stay of Removal.

WHEREFORE, IT IS HEREBY ORDERED that the respondents, their officers, agents, servants, employees, attorneys, and all members and persons acting in concert or participation with them, from the date of this Order, are

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services 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 United States.

IT IS FURTHER ORDERED that to assure compliance with the Court’s order, the Court directs service of this Order upon the United States Marshal for the Eastern District of New York, and further directs the United States Marshals Service to take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.

There is nothing in the Order that prevents implementation of other provisions of the Executive Order other than removal of a certain class of persons.

————

Court Order Staying Trump Executive Order on Refugees by Legal Insurrection on Scribd

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Comments

From what I read it only applies to people with valid visas who reach the US. Trump put a freeze on new visas.

    William A. Jacobson in reply to myiq2xu. | January 28, 2017 at 9:39 pm

    I think that’s right.

    Milhouse in reply to myiq2xu. | January 28, 2017 at 10:57 pm

    Yes, but on what grounds is their removal being challenged? Surely the judge knows that a visa is not a guarantee of admission — never has been, and every visa says so. A visa merely allows you to present yourself at a point of entry and apply for admission, which may be denied for almost any reason. So if the president has ordered his employees to deny these people’s application for admission and send them back where they came from, what right of theirs has been violated, and why has this never been a problem before whenever someone is turned back at the airport?

      CloseTheFed in reply to Milhouse. | January 29, 2017 at 12:14 am

      I see no disaster. I see more caterwauling by the opposition.

      And as for this, it lets the world know that the previous permissiveness is defenestrated.

      Good. Keep it up.

      I wanted to go to the Garland Cartoon contest, and I didn’t. And a muslim in our country went and died. Good. We’re getting serious about the scourge of foreigners destroying our country and instilling fear in everything we do.

      People killed in a bar in Florida. Wut?

      People killed at a Boston Marathon. Wut?!? No!!!!

      Boot them out, and perhaps we can rid ourselves of taking our shoes off to fly. Bring a little civilization back to civilization. No more sacrifices from me, for people I don’t give one damn about, and would happily put on the lowest rung of hell.

      Wisewerds in reply to Milhouse. | January 29, 2017 at 1:31 am

      Milhouse–It seems like you may have particular expertise in this area. Do you? Could you explain what it’s based on?

I find it questionable that this executive order could have been so time-efficient as to already be sending somebody back to their country of origin. Something smells here.

    Milhouse in reply to georgfelis. | January 28, 2017 at 10:58 pm

    What could cause a delay? The order goes out, why would it not be obeyed immediately?

    Not really. This is actually the way it is supposed to work (and would work in any efficient corporate entity). A decision is made at the top, clearly communicated, and it becomes the duty of the line-operators to implement it.

    Here, it is a decision that anyone from the 7 countries listed is to be turned away at the border if they are attempting to enter without United States Citizenship (Visa or Lawful Permanent Resident Status) unless they have some form of special exception.

    That has ALWAYS been within the discretion of Department of Homeland Security or prior to that Immigration and Naturalization Services. If for some reason a person is flagged while outside of the United States, they CAN be turned away at the border.

    While I do not practice in Immigration, I’ve had to tell certain criminal clients in the nation illegally or on Lawful Permanent Resident Status that if they EVER go home or to visit their relatives, that they’re NOT coming back, because they’ve been flagged due to their criminal conduct. It’s not sufficient to get them deported outright, but if they leave, the federal government won’t let them back across the border lawfully.

I just hope that the detained people aren’t released to blend into the general population. Other than that, regulating the status of green card holders/visa holders probably isn’t that bad a thing.

Humphrey's Executor | January 28, 2017 at 10:02 pm

Sounds like some officious bureaucrat taking things too far to cast Trump’s policy in a bad light.

    In what way have they taken things too far? Did the order not tell them to do exactly this? I just wonder on what grounds it’s being challenged.

      Humphrey's Executor in reply to Milhouse. | January 29, 2017 at 8:50 am

      Did Trump’s EO apply to people who already had visas at the time of his order?

        yes it did if I read it right

        YES.

        HOWEVER, a Visa does NOT guarantee you entry into the United States. It gives you the authority to PRESENT yourself for entry into the United States (or any nation) and then to be examined as to if that nation is going to grant you entry. If you’re not granted entry, you go back home.

        If you’ve ever flown internationally, when you arrived you walked up to a little booth and presented your Passport. That is the Federal Government doing a quick security screening. For those on a Visa or on Lawful Permanent Resident Status, that screening is more intense, and the status those documents grants is MUCH more tenuous than Citizenship, which almost guarantees entry (entry for a Citizen actually CAN be denied under certain circumstances).

        The Progressive troglodytes here are attempting (and largely succeeding) in misrepresenting what is going on here to the Low Information crowd, by playing to emotion and a lot of histrionics (the weeping, wailing and gnashing of teeth).

The ACLU and the media are spinning this horribly. This is simply a temporary stay on removing people from the US, until a further hearing is held. It does not prohibit the government from denying the person entry and detaining them, nor does it require that the government release them into the country.

This is a pretty standard action to preserve the status quo, until a hearing can be held. I hope the detainees enjoy local ICE detention facility.

    snopercod in reply to Mac45. | January 29, 2017 at 7:31 am

    You bring up a good question. Just where are these detainees going to be held?

      I’m sure that there is a dedicated immigration detention facility somewhere in the Tri-State area. The detainees could simply held there, until their fate is decided/

      Granny in reply to snopercod. | January 29, 2017 at 4:49 pm

      Airlines overseas are not allowing people who they know will be detained to fly to the US, so this really only applies to those who were already in transit and there weren’t many of those. All US Ports have some limited detention facilities where people can be held for several days until they are returned to their point of origin.

    Likely no-mans-land at the airport.

    There is a region which is technically treated as international land prior to the granting of entry into a nation.

    There was a (legally and factually squishy) movie made about this starring Tom Hanks in 2004 called “The Terminal” which was loosely based on a the story of Mehran Karimi Nasserian who is an Iranian refugee who lived in the departure lounge of Terminal One in Charles de Gaulle Airport from 26 August 1988 until July 2006.

When’s the hearing on the merits?

    I don’t know that it’s been set yet, but it shouldn’t be more than two weeks. See FRCP 65(b)(2). It can be extended for a period of an additional two weeks for “good cause” by the Court, and said “good cause” must be stated on the record (which likely makes THAT finding immediately appealable as an interlocutory order of the Court).

    Also, the Judge got this Legally and Factually wrong. As near as I can tell under Rule 65 of the Federal Rules of Civil Procedure, this should be a “Temporary Restraining Order,” not a “stay.” But, I don’t practice in Federal Court, so I may be wrong.

I believe that the visa could be administratively invalidated. Then this order would be mute.

People who have long — and peaceably– lived in the US with valid green cards and who were visiting overseas are left stranded by this executive order. This is a PR disaster unfolding.

    Milhouse in reply to TheReader. | January 29, 2017 at 12:11 am

    They’ve never had an automatic right to be readmitted to the US. They’ve always had to apply for readmission, and there’s always been a non-zero chance that they would be refused. They’re from dangerous countries, therefore there’s a substantial risk that they’re dangerous; length of residency doesn’t change that. And they’re not stranded, they just have to apply to the secretary for special consideration. If they have a good case, I’m sure it’ll be granted; why wouldn’t it be?

      sequester in reply to Milhouse. | January 29, 2017 at 8:33 am

      Are you saying that a US Permanent Resident who travels to Iraq and meets with ISIS can be refused re-entry to the United States?

        Milhouse in reply to sequester. | January 29, 2017 at 11:23 am

        I’m saying that a US Permanent Pesident who travels anywhere, for any reason, can be refused re-entry to the United States, almost entirely at the discretion of the career civil servant (i.e. almost certainly a Democrat) who happens to process them at the airport.

        TheReader in reply to sequester. | January 29, 2017 at 4:33 pm

        The problem (speaking hypothetically- but maybe not so much) is treating a permanent resident of the US who served as a translator for our troops and who returned home to visit their grandparents the same way.

          Granny in reply to TheReader. | January 29, 2017 at 4:54 pm

          We can’t have an immigration law so long you need 10 degrees to even read the thing. One of the two held at JFK yesterday was indeed an Iraqi interpreter who is now a green card holder. He was held, investigated and released just exactly as he should have been

          The EO says that if you come from one of seven countries you get extra vetting. That is as it should be.

          Kind of like when I fly home from the UK every year with an extra suitcase full of allowed groceries. I always have to go through the USDA line and have my bags searched. ALWAYS. Of course I could leave the Christmas Stilton in the UK and skip it, but I want the Stilton and those are the rules.

          Have you ever heard the term “green on blue”? Nominal ally gets hit with Sudden Instant Jihadi Syndrome, Americans end up dead.

That was fast. The ACLU knew that it had a slim margin of time before Trump could put his stamp on the DOJ and other departments. Whoever argued the administrations case before the judge was probably not whole heartedly committed to the defense.

Remember how all of you attacked Obama over his executive orders?

Now that your guy is having his executive orders shut down you don’t like it. All it took was one week.

Where’s all of your chest puffing talk now?

KARMA.

    mariner in reply to m1. | January 29, 2017 at 2:15 am

    A lot of Obama’s Executive Orders were flatly unConstitutional and others were illegal.

    I haven’t seen any showing that Trump’s Executive Orders were not within his authority.

      heyjoojoo in reply to mariner. | January 29, 2017 at 2:28 am

      You don’t seem to understand what is happening here. Nothing has been “shut down” and Trumps EOs will continue.

      CloseTheFed in reply to mariner. | January 29, 2017 at 8:44 am

      Trump’s E.O.’s on entry/exit are saying “enforce current law,” and by the way, current law allows the President to decide who can come in and out.

      This is an example of a judge making law on her own.

      IMPEACHMENT is the proper reaction to this judge’s failure to follow her oath.

        Actually no. This is the Judge issuing a Temporary Restraining Order (which she has improperly referred to as a “stay”) on the motion and affidavit of ONE of the parties, presented without argument and a hearing, on the affidavit of the parties that they will suffer irreparable harm.

        The Judge likely does not do immigration regularly, and thus doesn’t KNOW the rules about it.

        This IS actually the proper method to hear this, having the Judge issue a freeze of all actions, and having a “preliminary” hearing on it within 14 days, at which time the Federal Government attorneys will show up, United States Code (USC) and Code of Federal Regulations (FRC) in hand, and show the Judge exactly what gives the Executive Branch the authority to issue this Executive Order.

The order is devoid of any reference to any federal law that the judge relied upon. Can they just willy nilly have a different opinion merely by reason of their title, which trumps President Trump?

    Kaffa in reply to pdxnag. | January 29, 2017 at 4:45 am

    Perhaps if more judges were impeached for their overreaching actions, this foolishness would stop. Judges are not the gods that they think themselves to be.

    tarheelkate in reply to pdxnag. | January 29, 2017 at 7:23 am

    Thank you. Can attorneys here tell me if a federal judge can overrule a legal presidential order? There has to be some basis in law for it, surely, and if not, the judge is merely saying he disagrees with it. Does he have authority to overrule the executive branch merely because he doesn’t like the policy in question?

      Milhouse in reply to tarheelkate. | January 29, 2017 at 8:41 am

      By definition, a judge can’t override a legal order from the president to his employees. But a judge can override an illegal order, and it’s the judge’s role to decide whether the order is legal. Not liking something is not a basis for deciding it’s illegal. For now the judge hasn’t found the order illegal, but has said it might be, so for now the challengers must be detained rather than sent home, so if the order turns out to be illegal they can be released.

      From the order it seems the challenge is on the basis of the challengers being denied due process; if they had a right to due process then this would be a strong challenge, but I don’t see how their situation is different from that of any alien who shows up at a point of entry to the US with a valid visa, and applies for admission. Such applications have never been understood to be subject to due process; when someone is turned away there is never any kind of hearing, they’re just held until there’s an empty seat on a plane back to where they came from, and then sent home. If this judge now finds there’s a right to due process that will overturn the standard practice of decades, and invite thousands of lawsuits.

    stevewhitemd in reply to pdxnag. | January 29, 2017 at 10:03 am

    It’s a temporary restraining order issued on a weekend. There will be a more formal hearing. The administration will have a lawyer at said hearing that will explain their position. I expect at that point for the temporary order to be dissolved. If the judge continues restraint, expect a quick appeal to the Court of Appeals.

    It doesn’t have to YET. That’s the point of a Temporary Restraining Order. It’s an allegation of IRREPARABLE harm that literally CAN’T be argued to a final hearing because it will occur BEFORE notice can be given to the other side.

    This is a “everybody hold your horses and let’s have a hearing” order (and if I read it right, it MUST be held within 2 weeks, or the Judge’s TRO (stay) expires of it’s own legal authority pursuant to FRCP 65(b)(2).

      A lawyer can face sanction for advancing a point for which there is no legal support or is based on lies. I suspect this is precisely suited to any ex parte proceeding.

        That is true, but the burden is high (but not insurmountably so). There may be a question as to if there is a good faith argument regarding the extension of existing law in terms of those with Lawful Permanent Resident status and the implementation of executive orders and entry into the country.

In case anyone was wondering, yes, Judge Donnelly was appointed by Barack Obama. She was recommended for the position by Sen. Schumer.

    Awing1 in reply to snopercod. | January 29, 2017 at 10:33 am

    What about Judge Leonie Brinkema of EDVA? Judge Thomas Zilly WDWA? Judge Allison Burroughs of DMA?

    They’ve all issued stays related to the EO.

Your source on the intent of the EO is a little old, you should probably look for something that was written *after* the EO was issued. Rudy Giuliani on Fox last night said the order came about because Trump asked him how he could do a Muslim ban legally. So he put a commission together and they came up with this on the basis of security implications rather than religion. Imagine the same story, but with “Jewish” in the place of “Muslim”, and tell me if you’d still be saying this isn’t a religiously motivated EO.

I’d also note that your characterization of how LPRs will be handled is grossly inaccurate. A “case by case exception basis”, as I’m sure you well know, means all covered LPRs (including hundreds of thousands of people that have lived in this country legally for years, and who are still here and now afraid to go on a trip) are banned from entry, but a small number of exceptions could be made. It’s not like every single one will get a case-by-case review.

This is absolutely unprecedented. A ban (and yes, temporary bans are still bans) on LPRs entering the country based purely on nationality is new, and it’s not clear that’s legal under the INA as amended. It prohibits discrimination on the basis of a person’s race, sex, nationality, place of birth, or place of residence, and its exceptions do not include section 1182(f).

I’m extremely disappointed in you professor. I would have expected you to be above partisanship on stuff like this.

    Granny in reply to Awing1. | January 29, 2017 at 11:25 am

    You are incorrect. Obama put a ban in place in 2011 based solely on nationality and there have been many others over the years.

    http://abcnews.go.com/Blotter/al-qaeda-kentucky-us-dozens-terrorists-country-refugees/story?id=20931131

      Awing1 in reply to Granny. | January 29, 2017 at 11:28 am

      That was a ban on issuing new visas, not a ban on entry of people already with visas, much less LPRs.

        Milhouse in reply to Awing1. | January 29, 2017 at 11:54 am

        So what? What extra constitutional rights does a visa holder have over any other alien?

          Awing1 in reply to Milhouse. | January 29, 2017 at 12:38 pm

          Well, as a pure matter of responding to the comment I was responding to, they said I was wrong about the unprecedented nature of the order based on specific criteria when I wasn’t. So there’s that. But more to the point, we generally provide far more significant rights to LPRs than to visa-holders or other aliens. Even when Carter in ’79 expelled Iranian nationals, he didn’t expel, or even block the reentry of, Iranian nationals that were LPRs. Blocking LPRs from entry to their country of residence, for many of them (like my wife) their only home, on the basis of nothing but their nationality, is an extreme step, unprecedented in our modern history.

          Awing1 in reply to Milhouse. | January 29, 2017 at 12:43 pm

          But I really don’t have time to keep arguing this. This isn’t just liberals with their normal outrage about having to deal with the unpleasantness of life (although hopefully now they’ll stop their whining about dumb stuff), this is an unprecedented step, and without a very strong justification, it’s absolutely something to question.

          That we’re now finding out it may not have been run through the normal channels, and that Trump has taken the joint chiefs of the NSC’s principals committee and put in a political operative like Bannon, is cause for legitimate concern regardless of political stripe.

          Barry in reply to Milhouse. | January 29, 2017 at 4:02 pm

          “But I really don’t have time to keep arguing this. ”

          Why? Your argument can be summed up in a couple seconds.

          Wah, wah, wah.

          You don’t actually have an argument. You’re a moron.

        You don’t practice in Immigration Law or Criminal Law, do you?

        Us criminal practitioners have FOR YEARS had to tell our non-citizen criminal clients (illegals AND Lawful Permanent Residents) that have committed certain acts that if they leave the United States after conviction for certain criminal acts that they are INELIGIBLE for reentry. PERIOD. We’ve had to advise FAMILY members that if THEY have benefited from the criminal’s acts THEY can be excluded even though they themselves have done NOTHING wrong.

        see Padilla v. Kentucky generally for the ATTORNEY’S requirements for advising defendants on their pleas.

        This is fully within the Executive Branch’s powers, as delegated to it by Congress.

        If you don’t like it Awing1, your remedy is to have Congress pass a legislative act returning the decision-making regarding immigration and entry into the United States to Congressional rules, based on legislative directive rather than delegating it to the Executive Branch by general delegation. However, it will still be IMPLEMENTED by the Executive Branch, as an executive act.

          Ragspierre in reply to Chuck Skinner. | January 29, 2017 at 12:12 pm

          Yeah, Chuck, but…”due process” and conviction.

          Rags, conviction for a crime reuires due process. Exclusion from the US doesn’t. i.e. when they’re excluded a the airport they don’t get a hearing on whether they were convicted of a crime, they just get put on the next plane out with an empty seat. If in fact they haven’t been convicted of a crime and it’s all a big mistake, they get to make that case from wherever they’ve been, not at the airport. That’s if the ICE are being d*cks about it. If they’re being reasonable they’ll sort it out at the airport, but they don’t legally have to.

          Ragspierre in reply to Chuck Skinner. | January 29, 2017 at 12:36 pm

          Milhouse, did you read what Chuck posted? I did.

          I spoke to that.

          Hi Rags. The due-process section doesn’t necessarily apply here. It’s discretionary to the Executive as to whom they will allow entry to or not, as delegated to them by the Congress.

          That’s why individuals who have never been charged or have had any court process, as those who have benefited from OTHERS criminal acts can be barred from re-entry, even when they themselves have done nothing at all wrong.

          Ragspierre in reply to Chuck Skinner. | January 29, 2017 at 4:40 pm

          Hi, Chuck!

          What you just wrote suggests that somebody got due process and a some kind of adjudication.

          This WAY outside my wheelhouse. I’m just going on what you wrote.

          This is tangential to my normal practice areas, which is why I’ve bumped up against it often enough to know about it, even though I don’t practice Immigration law (I did ONCE represent ONE Lawful Permanent Resident in her renewal of her status, and was VERY uncomfortable doing it due to having to learn a whole new area of law basically from scratch).

          The due process piece actually isn’t related to the allowable entry portion. That’s why individuals who have never had any type of due process can be excluded due to actions by 3rd parties. Yes, SOMEBODY got due process, but not necessarily the “affected” (or if you prefer “afflicted”) party. The affected party has no standing to challenge the outcome or the decisions of the Executive, as near as I can tell.

          Effectively due to the way Congress delegated the authority to the Executive branch, it’s an unlimited discretion of the Executive as to whom should or should not be admitted entry.

          In effect, if President Trump said tomorrow “we’re closing the borders to all non-citizen travelers and if you are a citizen and travel to certain countries you’re going to face scrutiny about why you were there and what you were doing, and if we don’t like your answers, we’re going to detain you until we verify EVERYTHING you told us to the last detail” the President would be well within his Executive Authority to do so (until Congress revoked it by Legislative act, which would be within THEIR power to do so).

          I think that this is going to be shut down VERY quickly at the District Court Level, and anything that survives is going to get fast-tracked to SCOTUS, which will bench-slap any Court that tries to derail it, with a quick “political question” lack of jurisdiction.

          “Tangential” to your practice area? Now it makes sense, you don’t actually understand the structure of immigration law as it relates to LPRs, you’re just extrapolating from the small role you’ve occasionally had to play. Let me help you out.

          Read through Landon v. Plasencia, you’ll see they’re talking a lot about the INS being able to determine whether the LPR was making an “entry” for purposes of the INA. This is what the due process portion is concerned about: to what extent, if at all, is due process required when INS (now CBP for this function) makes the initial determination about whether an LPR is making an “entry”? Now, why is this a question? Well (and this used to be clearer pre ’96 when “entry” was more explicitly tied to “seeking an admission” under the current iteration of the INA), an individual that has been admitted as an LPR to the United States previously is not considered to be “seeking an admission” under the INA unless they meet one of a series of criteria (including conviction of a variety of offenses, which is probably where your experience with it comes in). As long as they pass inspection, and they don’t fit in to one of the enumerated categories in 8 USC 1101(a)(13)(C)(i-vi), they’re not seeking admission, and thus there’s no entry.

          That’s why there’s a question of due process, because it’s not discretionary. The issue in Landon v. Plasencia is what process is due INS (now CBP) when making the determination of whether or not the LPR fits under one of those enumerated categories, and thus whether or not there is an entry. That’s also why initially DHS assumed the order didn’t apply to LPRs, and why the administration has since backtracked after originally telling DHS that it should be applied to LPRs.

    Milhouse in reply to Awing1. | January 29, 2017 at 11:33 am

    Awing, it doesn’t matter if it is religiously motivated. Aliens have no right to be admitted to the US, ever, and it would be perfectly legal (though in my opinion ill-advised) to put a total ban on the entry of all alien Moslems (or Jews, or blacks, or anyone else the president chose to exclude). AIUI there is no right to due process, and therefore it can be completely arbitrary.

    And such a ban would be fairly easy to enforce: just make every applicant for admission declare either (a) that Mohammed was not a prophet, or (b) that Mohammed was not the last prophet. Test (a) would exclude everyone except Moslems and Baha’i, and test (b) would filter out the Baha’i.

    In this case, however, Moslems are not being excluded at all. People from dangerous countries are being excluded, on the grounds that they may be dangerous, and we have no way of knowing whether they are or not. We’re certainly not required to take their word for it, as the complainants seem to demand.

      Awing1 in reply to Milhouse. | January 29, 2017 at 11:42 am

      It absolutely does matter whether it’s religiously motivated. While it’s at best ambiguous whether it matters from a legal perspective, to argue it doesn’t matter at all is just asinine, and I think you know that. It matters as an issue of national values and politics. Complainants are LPRs that are already ON US SOIL, and they absolutely have due process rights, you’re flat wrong about that.

        Milhouse in reply to Awing1. | January 29, 2017 at 11:52 am

        If applicants for admission to the US have a right to due process, why has this never been raised in the more than a century that such applicants have routinely been summarily refused admission? Why has not one of them ever successfully (or even, as far as I’m aware, unsuccessfully) sued the government for admission, false imprisonment, denial of due process, etc? It is well established that the usual constitutional protections do not apply at points of entry to the US; people who have presented themselves for admission are not considered to be here until they are admitted.

          Awing1 in reply to Milhouse. | January 29, 2017 at 12:21 pm

          The problem is that you think LPRs are always applicants for admission, when generally they aren’t: 8 USC 1101(a)(13)(C).

        Complainants are LPRs that are already ON US SOIL, and they absolutely have due process rights, you’re flat wrong about that.

        So what? Just because LPR status has been granted does NOT guarantee entry. There are WHOLE CLASSES of individuals who are EXCLUDED from reentry even though they have LPR status, even if they make it to US Soil, but are stopped at a DHS checkpoint.

        see 8 U.S.C. § 1182(a)(2) generally;

        Here’s a generally decent primer:

        https://www.justice.gov/sites/default/files/civil/legacy/2011/05/03/REVISED%20Padilla%20v.%20Kentucky%20Reference%20Guide_11-8-10.pdf

          Here’s a far better one:

          https://supreme.justia.com/cases/federal/us/459/21/case.html

          Discussions of what constitutes an entry, particularly given 8 USC 1101(a)(13)(C), which delineates when an LPR is and is not “seeking admission”, are different for LPRs.

          Yep, if they’ve committed certain crimes, they can be considered as “seeking admission”. “Subject to an EO” is suspiciously missing from the list.

          Apparently you didn’t read the FIRST PARAGRAPH of the syllabus of the case you cited. Let me quote it for you herein:

          Section 235 of the Immigration and Nationality Act of 1952 (Act) permits the Immigration and Naturalization Service (INS) to examine “all aliens” who seek “admission or readmission to” the United States and empowers immigration officers to take evidence concerning the privilege of any persons suspected of being an alien “to enter, reenter, pass through, or reside” in the United States, and to detain for further inquiry “every alien” who does not appear “to be clearly and beyond a doubt entitled to” enter. Under § 236(a), if an alien is so detained, the officer is directed to determine whether the alien “shall be allowed to enter or shall be excluded and deported.”

          That seems pretty cut and dried to me that they can detain AT WILL (and by extension at the direction of Executive Order).

          I absolutely read the first paragraph of the syllabus, which briefly describes the procedural posture of the case, I just also read the rest of the case, including where they repeatedly state that a permanent resident that has lived in the US for long enough to develop ties is entitled to due process prior to exclusion after a trip abroad. Are you in the habit of reading only the history of a case, rather than the actual opinion itself, to determine what an opinion says? You should read the whole thing.

        Mac45 in reply to Awing1. | January 29, 2017 at 12:31 pm

        Yes, if the action was based SOLELY upon religious identification, then it would be likely be deemed unconstitutional. However, this order effectively banns entry to ALL people from specific countries which wither harbor or support terrorist actors inimical to the safety and security of the United States. So, the racial discrimination argument will not fly unless some evidence exists that a specific religions faction is being discriminated against. And, as at this time, that is impossible to do.

        On the subject of the due process rights of the detainees, you are also incorrect. In order to be legally within the United States and under the Constitutional protection of due process, the person has to be legally admitted into the United States. The only exception to that is persons making a claim to asylum. But, even those persons can be detained until the claim is accepted. Also, the law allows for a entrant to be denied entry, at a border control station, and forced to return to a point outside the US, immediately.

        The point, at issue in this case is whether the current administration has to honor visas issued by a previous administration and, if so, under what restrictions and guidelines.

          Awing1 in reply to Mac45. | January 29, 2017 at 12:48 pm

          “Yes, if the action was based SOLELY upon religious identification, then it would be likely be deemed unconstitutional. ”

          I actually doubt that. It bumps up against some provisions of the INA, and I think it goes against our national values, but I don’t see a constitutional provision that applies.

          “On the subject of the due process rights of the detainees, you are also incorrect. In order to be legally within the United States and under the Constitutional protection of due process, the person has to be legally admitted into the United States. ”

          The issue is a combination of statutory rights and constitutional rights. If you were correct, four federal judges would not have issued the stays, which required finding a high likelihood that the detained individuals would ultimately prevail in their substantive claims. It doesn’t mean they actually will, but the issues are at best ambiguous.

          CloseTheFed in reply to Mac45. | January 29, 2017 at 8:16 pm

          To Mac45:

          It is my understanding that individuals outside of our borders and with no ties to the United States, have no due process or constitutional rights under our laws.

          We can exclude whomever we want.

          muslims are dangerous and Trump is being too cautious.

        Granny in reply to Awing1. | January 29, 2017 at 5:00 pm

        LPRs who are already on US soil are not affected by this Executive Order.

          Awing1 in reply to Granny. | January 29, 2017 at 7:31 pm

          Tell that to the LPRs that had to get a court order to be released. Priebus stated this morning that the administration is not going to apply the EO to LPRs “going forward” after realizing that they screwed up, but that’s no reason to pretend that they didn’t originally apply it to them.

awing, where does the INA prohibit such discrimination? Please note that if you’re referring to 8USC§1152(a)(1) you lose, since it only applies to “the issuance of an immigrant visa”, not to admission to the US.

Here is my take on this issue.

A group of people holding valid visas were denied entry into the US based solely upon their country of citizenship. The current administration attempted to remove them from this country after their arrival, but before they were processed to enter the country. The judge, rightly, decided to enjoin the government from immediately expelling these people until the government explained why the visas should not be honored. However, she did not order the government to either honor the visas or to release the parties affected into the general population. It was solely designed to protect the interests of all parties in the case, until a hearing on the matter could be held. Such protective injunctions are not unusual in such cases and designed solely to maintain the current status quo, until the arguments of all affected parties can be heard and weighed.

This is much ado about nothing. No court has overturned any part of the President’s EO. A hearing will be held and it should be decided upon the narrowest grounds. This would be whether the President has the authority to deny entry to persons based upon their country of origin and if the current Presidential administration has any responsibility to honor a prior commitment of the government, in this case a visa, and under what cases such a prior commitment can be waived. Also, until a judgement is rendered ordering the government to honor existing visas and allow the holders of such visas to enter the US, then anyone else arriving here, under the same circumstances, would simply be detained and held until the matter is settled, unless they chose to be voluntarily deported.

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