Better Understanding: Immigration Law

by Becky Flaum DelGuercio

The travel ban executive order Trump handed down on January 27 (and all the subsequent court rulings) happened so fast, unless you knew the law and understood exactly how the courts worked, you might have felt more than a little lost or even worse, despondent.

Even after yesterday’s ruling to keep the stay on the travel ban, there’s still so much to digest, especially if we are to know how to fight moving forward. Knowledge is not only power but also empowering (see what I did there?), so I’ve spoken with a few lawyers about the basics and nuances of immigration law and about this executive order.

First off, here are the basics. There are four different kinds of visas: visitor, work, student, and immigrant. The first three are pretty self-explanatory and usually state a certain period of time the visa holder will be in the country. All can be subject to extension. The immigrant visa is one of the things you probably heard mentioned a lot recently. Immigrant visa holders are people coming to the U.S. with the intent to stay and become a legal permanent resident (LPR) or green card holder.

When the executive order came down, it halted entry of all visa and green card holders. The complete order, which you can read here, placed a 90-day ban on entry from seven predominantly Muslim countries. Further, the order halted the entry of refugees for 120 days and halted the admittance of refugees from Syria indefinitely.

People in the air when the order came down were detained at airports across the country, and many were sent back to their country of origin, or at least where they had departed. Amongst the detainees were green card holders, people who had established residency in the United States, whose families were here, people who had homes, and businesses.

So, is this a Muslim ban? According to lawyers I spoke with: yes. If you look at the language on the order it states, “ Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution...”

Religious minorities in Muslim countries are Christians, and the President has stated before that he would give preferential treatment to Christian refugees. So, yes, it is a Muslim ban.

Can the President do this? Yes and no. The President has the power when it comes to negotiating with countries in matters of trade, and some consider immigration to be a part of that realm of power. However, an executive order is meant to be used in issues where Congress has not spoken, and there is an Immigration and Nationality Act. It should be noted that, while the Immigration and Nationality Act of 1965 has a clause prohibiting discrimination based on country of origin, it doesn’t expressly prohibit discrimination based on religion (although it is not a far reach to say the two go hand in hand). However, the Constitution does have such a clause.

Going back to the executive order... on Saturday, January 28, a federal judge in New York issued a stay or temporary restraining order (TRO) halting the detention and removal of immigrants from these seven countries by the Customs Border Protection. The ACLU filed the petition. CBP was not complying with the stay, and it was unclear whether it was due to ignorance of the order or direct orders from the White House to not comply.

On Monday, January 29, the White House clarified that the ban would not include green card holders, but they would receive further screening. The week following the order was full of states suing to invalidate parts of the order, the argument being that it creates undue harm by damaging employers, schools, families, and even the state's’ economy.

Here it is important to know about jurisdiction. Most cases are state cases, but there are two ways a case can go from a state case to a federal one. The first is subject-matter jurisdiction, like interstate commerce. The other is diversity jurisdiction, i.e., the plaintiffs are from two different states. In this case, the states of Washington and Minnesota sued Trump, John Kelly, of Homeland Security, and the federal government.

So, what was the basis for Judge James L. Robart’s decision on Friday, February 3 to issue a temporary restraining order? First of all, it is important to note the rule of the court is not to make policy but to make sure the other branches are exercising their authority constitutionally. Judge Robart is basically saying that implementing the executive order will harm employment, homes, universities, and states’ economies.

Then on Tuesday, February 9, a three-judge panel of the Ninth Circuit Court of Appeals heard the case by the state of Washington on whether or not the TRO should be suspended. Again, this is not a ruling on whether the ban is constitutional, simply whether it will remain suspended.

If you listened to the hour-long conference call between the panel, the Washington state attorney, Noah Purcell, and the lawyer for the Justice Department, August Flatje, you heard both sides getting grilled pretty hard. If you were like me, you might not have understood what was happening and thought they were clearly siding with one side or the other. Law analysts also found it hard to decipher which way the court was leaning….

...Until yesterday, when the Ninth Circuit Court handed down its unanimous ruling. The stay on the travel ban remains in place and the ban is currently not enforceable. The decision handed down stated the government was unable to prove there was a threat from the seven countries included in the ban. The courts did not, however, decide whether or not the ban violated the First Amendment. It is likely the Trump administration will appeal this all the way to the Supreme Court.

Okay, so what should we know in order to stay on top of this issue? According to Mona Iman, a Los Angeles immigration attorney who was one of the “first responders” at LAX after the executive order was handed down, we are already headed in a good direction, “It’s important to be aware of what’s happening in our country and around the world. I am of the opinion that we are responsible for the well being of our communities. We must do our part to unify in our own neighbors and celebrate our differences.”

So, how can we help? By calling our reps and senators and making our opinions known. We can also donate to the big civil liberties warriors like the ACLU and Public Counsel and to refugee charities like the IRC. Iman also suggests donating to smaller, more local legal organizations who help immigrants, like Pangea in San Francisco or Friendly House in Phoenix.

And again, Iman stressed the importance of being engaged in our communities. In addition to fighting legislation as it  happens, we as individuals have to “make true friendships with those that are different than ourselves. As we start to change on the ground, our policies will be able to reflect that.”