Virginia Federal Judge Upholds Trump Immigration Executive Order Signalling Possible Split in Circuits

On March 24 President Trump’s revised immigration ban which took effect March 16, 2017 (March Order) was found to be enforceable for the first time. U.S. District Judge Anthony J. Trenga in Alexandria, Va., denied an emergency request for a temporary restraining order (“TRO”) to suspend enforcement of the March Order. Judge Trenga diverged from his counterparts in Hawaii and Maryland who granted temporary restraints against the March Order. On March 15 U.S. District Court Judge Derrick Watson in Honolulu issued a TRO pending further order of the Court and blocked core provisions of the March Order on the basis that the Order is an unconstitutional establishment of religion and inflicts immediate harm on Hawaii’s economy, education and tourism; this order is on appeal to the Ninth Circuit. Specifically, Judge Watson blocked the 90-day ban on entry of foreign nationals from the six Muslim-majority countries (Iran, Syria, Libya, Sudan, Yemen and Somalia) and the 120-day ban on U.S. entry by all refugees. The next day U.S. District Court Judge Theodore D. Chuang in Greenbelt, Maryland issued a nationwide preliminary injunction blocking the part of the March Order that suspended the issuance of visas to citizens of the six banned countries; Judge Chuang’s decision is on appeal to the Fourth Circuit which will hear arguments on May 8. Judge Chuang and Judge Watson both found that the March Order was intended to discriminate against Muslims. On March 29, Judge Watson converted the TRO into a nationwide preliminary injunction blocking provisions of the March Order indefinitely.

The Virginia lawsuit was brought by Linda Sarsour, national co-chair of the Women’s March on Washington and a Muslim activist. Ms. Sarsour relied on Trump’s public remarks and argued that the “long and unbroken stream of anti-Muslim statements made by both candidate Trump and President Trump, as well as his close advisors, which, taken together, makes clear that [Trump’s January and March Orders] are nothing more than subterfuges for religious discrimination against Muslims.” In deciding not to enjoin the March Order, Judge Trenga reasoned that the March Order was “explicitly revised in response to judicial decisions that identified problematic aspects of EO-1 [Trump’s January Order]…” and cited that part of the March Order that “expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.” Judge Trenga found no violation of the Establishment Clause on the grounds that the March Order “clearly has a stated secular purpose: the ‘protect[ion of United States] citizens from terrorist attacks, including those committed by foreign nationals.’” Judge Trenga also concluded that the substantive revisions reflected in the March Order precluded findings that the predominant purpose of the March Order is religious discrimination against Muslims and that the March Order is a pretext for this purpose. Judge Trenga wrote that to proceed otherwise required his “extending [the] Establishment Clause jurisprudence to national security judgments in an unprecedented way.”

Judge Trenga’s March 24 decision is not immediately appealable; Sansour’s court challenge will proceed and the Administration must answer the complaint. If Judge Trenga dismisses the complaint, an appeal to the Fourth Circuit Court of Appeals is expected and may then be consolidated with the pending appeal of Judge Chuang’s preliminary injunction. Given the increased likelihood of a split in the Circuits, the March Order may ultimately be reviewed by a fully constituted Supreme Court. Meanwhile, Judge Watson’s national injunction remains in effect and the attorneys general for California, Maryland, Massachusetts, New York and Oregon have joined Washington in filing another complaint challenging both the January and the March Orders.

If you would like to discuss how the March Executive Order or these court decisions affect your employees and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Trump Blinks and Signs Revised Executive Order; States React Immediately

On March 6 President Trump signed a second Executive Order revoking his January Order and replacing it with Executive Order (“March Order”) effective March 16, 2017 that is intended to overcome court challenge. The March Order suspends for 90 days entry into the U.S. of nationals of six countries, but carves out limited exceptions for certain categories of affected aliens. After issuing the March Order, the Justice Department immediately asked the federal court in Seattle to halt Washington’s and Minnesota’s legal challenge from proceeding against the January Order and notified the Court notice that the Government plans instead to enforce the provisions of the March Order.  However, for the moment the Seattle lawsuit remains pending.

Under the March Order, entry by nationals of six countries -Iran, Libya, Somalia, Sudan, Syria and Yemen- is suspended through June 14, 2017. The suspension of entry into the U.S. will apply only to foreign nationals from the six countries who 1) are outside the U.S. as of March 16, 2017, and 2) did not hold a valid visa as of 5 p.m. EST on January 27, 2017 and 3) do not have a valid visa as of March 16, 2017. The suspension of entry into the U.S. will not apply to U.S. permanent residents, any foreign national who is admitted to or paroled into the U.S. on or after March 16, 2017, any foreign national who has a document other than a visa valid on March 16, 2017 that permits the individual to travel in the U.S., any dual national of one of the six countries if the individual is traveling using a passport from the non-designated country, any foreign national traveling on a diplomatic visa, NATO visa, C-2 visa for travel to the U.N. or a G-1, 2, 3 or 4 visa, any foreign national granted asylum, and any refugee already permitted to be in the U.S. No immigrant or nonimmigrant visas issued before March 16, 2017 is being revoked by the March Order and any individual whose visa was revoked as a result of the January Order is entitled to a travel document permitting travel to and entry into the U.S.

Although the March Order does not list Iraq as a banned country, decisions about issuance of visas or granting entry to any Iraqi national will be subject to additional scrutiny to determine if the alien has connections to ISIS or other terrorist organizations, or otherwise poses a threat to national security or public safety.

The March Order also suspends all refugee travel into the U.S. under USRAP and suspends decisions on all refugee status applications through July 16, 2017. The January Order banned all Syrian refugees’ admission into the U.S. indefinitely. The Secretaries of State and Homeland Security retain the ability to jointly determine a refugee’s admission into the U.S. on a case-by-case basis so long as admission is in the national interest and poses no threat to national security and welfare. Finally, for fiscal year 2017 entry by refugees in excess of 50,000 is suspended until the President determines additional entries are in the country’s interest.

The first state to challenge the March Order was Hawaii which sued in Honolulu federal court claiming that the March Order results in an unconstitutional establishment of religion and inflicts immediate harm on Hawaii’s economy, education and tourism. U.S. District Judge Derrick Watson will hear Hawaii’s request for a temporary restraining order on March 15. New York’s Attorney General announced that New York will join Washington and Minnesota in the pending federal case in Seattle. Other states are expected to follow New York’s and Hawaii’s example.

If you have any questions or would like to discuss how the March Executive Order affects your employees and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

9th Circuit Refuses to Stay Nationwide Injunction Against Enforcement of Trump Immigration Order While Government Appeals

On February 9, 2017, the Court of Appeals for the Ninth Circuit affirmed the U.S. District Court’s Temporary Restraining Order prohibiting nationwide enforcement of key portions of the immigration Executive Order issued on January 27. A unanimous three-judge panel, consisting of two Democratic appointees and one Republican appointee, in a per curiam opinion, ruled that “the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.” As a result, the TRO stands and aliens from the seven listed countries (Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen), including those with immigrant and non-immigrant visas, may continue normal processes for entry into the U.S. and refugees from the seven countries, including Syria, may resume their proceedings to relocate to the U.S. State of Washington v. Trump, (February 9, 2017).

Washington State and Minnesota argued that the Executive Order violated the Establishment and Equal Protection Clauses because it disfavored Muslims and that the TRO merely returned the nation temporarily to the status quo in effect for many years. The Government submitted no evidence to rebut the States’ arguments. The Government, the judges observed, was hard pressed to point to a single recent example of an entrant from one of the seven listed countries who was arrested for terrorist activities. Regarding the argument that the Executive Order violates the Establishment Clause, the court withheld judgment for the time being, pending a decision on the merits, explaining, “The States’ claims raise serious allegations and present significant constitutional questions.”

The Ninth Circuit decision to maintain the nationwide TRO of the Trump immigration Order is immediately appealable to the Supreme Court. The President’s immediate tweet — “See You In Court, The Security Of Our Nation Is At Stake!” – anticipates that the Supreme Court will ultimately review the constitutionality of the Executive Order.

If you have any questions or would like to discuss how the Executive Order affects your employees and your business, please contact  Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.