TRUMP, TURMOIL, AND TERRORISM: THE U.S. IMMIGRATION AND REFUGEE BAN By Professor Maryellen Fullerton Note: This essay was originally written at the request of the Centre for International Refugee Law at the University of New South Wales, Sydney, Australia. We live in tumultuous times. Since Donald Trump was inaugurated as president of the United States a few weeks ago, the political scene in the United States has been marked by mass demonstrations, boldface headlines, and tweets in the middle of the night. Immigration, linked by Trump to criminals and terrorists, has been a flashpoint. Five days after the inauguration, Trump signed two immigration-themed executive orders, Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States. The first of these orders authorizes construction of a physical barrier along portions of the southern border of the United States and calls for hiring more Border Patrol agents. The second threatens to withhold federal funding from cities and towns that refuse to cooperate with federal immigration officials and provide sanctuary to unauthorized immigrants. Both Executive Orders contain multiple other provisions, but the vague language and lack of specific details make the likely impact of these orders unclear. The anti-immigrant tone, however, is crystal clear. Public debate about the legality of the orders immediately erupted. Two days later, on January 27, Trump released Executive Order 13769, Protecting the Nation From Foreign Terrorist Entry into the United States. Signed late on Friday afternoon and ordered to go into effect immediately, this order caused turmoil in international air travel, upended thousands of lives, precipitated multiple lawsuits across the United States, and led to a standoff between the executive and judicial branches of the U.S. Government. The order cited to the terrorist attacks of September 11, 2001 fifteen years earlier and asserted that [d]eteriorating conditions in certain countries... increase the likelihood that terrorist will use any means possible to enter the United States. Accordingly, the order immediately suspended for 90 days the entry of any citizens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. In addition, the order suspended all refugee admissions for 120 days. Further, it suspended the admission of all Syrian refugees indefinitely. Moreover, the order stated that when refugee admissions resume the United States should prioritize refugees fleeing religious persecution who are members of a minority religion in their homeland. In the interim, the order authorized two Cabinet officials to make case-by-case exceptions to the suspensions in the national interest, which it defined to encompass religious minorities fleeing persecution. Although it did not become public at the time, a top official at the U.S. State Department Bureau of Consular Affairs issued the following order on January 27: I hereby provisionally revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Without notice to the affected individuals or an opportunity for them to challenge the action, the U.S. government in one stroke cancelled the ability of 60,000 to 100,000 individuals to enter, return to, or lawfully remain in the United States.
Confusion reigned at multiple international airports in the United States on Friday night and Saturday morning as volunteer lawyers and interpreters arrived to offer their services to travelers affected by the ban. Those who were waiting for people scheduled to arrive began to panic, worried that their family members had been denied entry and forced back onto airplanes to return to the departure city. It was unclear what was happening in the zones where Customs and Border Protection (CBP) officers examine new arrivals, as government agents refused to allow attorneys to enter the passenger inspection areas. In response to attorneys requests to speak to government supervisors in order to obtain permission to consult with their clients who had not emerged from the airport arrivals area, government officers said: Call Mr. Trump. By mid-afternoon on Saturday, January 28, attorneys in multiple cities around the United States filed legal proceedings arguing that their clients must be released from the airports because their detention pursuant to Executive Order 13679 was unlawful. Accompanying the writs of habeas corpus, attorneys filed requests for emergency court orders prohibiting U.S. officials from relying on the Executive Order to detain or deport anyone falling within its contours. Federal courts around the country held emergency hearings, and by Saturday evening the courts began to respond. The federal court in Brooklyn, New York, whose jurisdiction encompasses JFK Airport, issued the first emergency order. It forbade the U.S. government from in any manner or by any means removing individuals with [approved] refugee applications and from removing 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. Within 24 hours, federal courts in Boston (Logan Airport), Virginia (Dulles Airport), Seattle, and Los Angeles had issued similar orders, though the details varied. The Virginia court order addressed only the situation at Dulles Airport, while several other courts issued orders that applied to airports across the United States. The Brooklyn federal court prohibited the deportation or removal of noncitizens from the seven listed countries; the Boston federal court limited, in addition, the type of screening government agents could carry out in the arrival zones; the Los Angeles federal court ordered the U.S. government to locate an individual who had been returned to Dubai and to permit him to enter the United States. All the courts, however, issued emergency orders, known as Temporary Restraining Orders (TRO), that maintain the status quo while the parties develop and present their legal arguments to the court. Consequently, a court order to grant a TRO does not address the legality of the underlying dispute. Nonetheless, courts only grant TROs when the petitioners can show a strong likelihood of success on the merits of their legal argument, as well as the likelihood that individuals will suffer irreparable injury if the status quo is not preserved. Thus, by Sunday, January 29, multiple federal courts had publicly forecast that the Executive Order raised serious constitutional issues. The courts set short time periods from one to three weeks in which the parties could prepare and submit fuller arguments concerning the legality of the Executive Order. Over the January 28-29 weekend, as news of the Executive Order spread to the public, crowds spontaneously congregated at major airports, while large rallies protesting the Executive Order took place in multiple cities. Networks of volunteer attorneys and interpreters remained at
the airports, in light of confusion as to whether the U.S. immigration officers were obeying the court orders. By Monday, January 30, it appeared that the officers were generally admitting air passengers under the pre-executive order standards, and the spotlight shifted back to the federal courts. As the next phase of litigation geared up, Sally Yates, the Acting Attorney General of the United States, instructed Justice Department lawyers not to defend the Executive Order, saying she did not think it was lawful. Within hours, President Trump fired Yates, stating that she had betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. That very same day, Monday, January 30, a new challenge to the Executive Order was filed in federal court in Seattle, Washington. In contrast to the earlier cases, which had been initiated by noncitizens denied entry into the United States, this suit featured the State of Washington as the plaintiff. Washington, soon joined by the State of Minnesota, sought a TRO against Executive Order 13769, arguing that the order injured state residents in areas of employment, education, business, family relations, and freedom to travel. Further, the states argued that the Executive Order injured the operations and missions of [the] public universities and other institutions of higher learning, as well as [state] operations, tax bases, and public funds. The judge scheduled a hearing on the TRO for Friday, February 3. The U.S. government and the states filed briefs and argued the case for an hour in front of Judge Robart. At the conclusion of the hearing, Judge Robart issued an order prohibiting the federal government from implementing the disputed portions of the Executive Order. The judge emphasized that his order maintained the status quo while the parties prepared and submitted their substantive legal arguments, which the judge would then address promptly. He explicitly stated that his order applied throughout the entire United States. The next day, Saturday, February 4, the U.S. government filed an emergency motion with the U.S. Court of Appeals for the Ninth Circuit, seeking a stay of the TRO pending an appeal to the Ninth Circuit. The appellate court denied the stay and scheduled a hearing for Tuesday, February 7, to consider the federal government s appeal and request for reversal of Judge Robart s TRO. President Trump, meanwhile, publicly denounced Judge Robart as a so-called judge whose ruling is ridiculous and will be overturned. The Ninth Circuit appellate argument took place via telephone. Each of the three judges participated from a different state, and the lawyers for the State of Washington and the United States were in separate locations as well. The Ninth Circuit provided a live audio stream of the hour-long oral argument, and thousands listened. The tone was engaged, but respectful, as the judges peppered questions at attorneys for both sides. At the conclusion of the allotted time, Judge Michelle Friedland announced that the judges would consider the arguments and prepare a ruling quickly. President Trump issued numerous statements, saying that the Executive Order was so clearly lawful that even a bad high school student would understand this. It s so simple and so beautifully written and so perfectly written. in contrast, federal judges, he said, seem to be so political, and it would be great for our justice system if they would be able to read a statement and do what s right.
On Thursday, February 9, the Ninth Circuit unanimously denied the federal government s appeal to reverse the nationwide TRO issued by Judge Robart. As in the earlier judicial decision, the issue was procedural: the court ruled that the federal government had failed to show that it was likely to prevail on the merits of the legal arguments and that it would be irreparably harmed if the Executive Order did not go into effect immediately. The Ninth Circuit opinion, however did address several of the underlying constitutional challenges to the order. Although careful to note that it was not deciding the merits of the arguments, the opinion indicated that there was precedent that could support the State of Washington s allegation that Executive Order 13769 violated the Due Process Clause of the U.S. Constitutional by cancelling valid visas and suspending entry of all citizens of the seven proscribed countries. The opinion also noted that there were serious reasons to conclude that the Executive Order ran afoul of constitutional provisions regarding religious discrimination, though it reserved decision on those claims until after the contending parties had an opportunity to address the religious arguments thoroughly. Contrary to what many expected, the Trump Administration did not file an immediate appeal with the U.S. Supreme Court. Nor did it seek en banc reconsideration of the panel decision by the Ninth Circuit. Back at the trial court level in Seattle, Judge Robart conferred with the parties to establish a briefing schedule, with a discovery conference set for March 15 and the initial discovery disclosures deadline set at March 29. Meanwhile, the Trump Administration stated that it would soon prepare a new, more narrowly order to supersede Executive Order 13769. For roughly a month, the refugee program continued to admit refugees, including Syrians, from overseas into the United States. Citizens of the seven banned countries who had visas continued to enter the United States. The airports returned to normal, more or less, although there was an uptick in complaints that immigration officials were hassling foreign visitors. Mem Fox, an Australian author of children s books who had previously visited the United States more than 100 times reported that she was aggressively questioned and publicly treated in a demeaning fashion by US agents at the LA airport. Henry Rousso, a French historian of Egyptian ancestry who had been invited to speak at a symposium at Texas A & M University, was detained for 10 hours at the Houston airport and almost forced to return to France before university officials and immigration experts intervened. An Afghan family holding visas based on their assistance to U.S. forces in Afghanistan was detained for 40 hours at the LA airport. The revised Executive Order appeared on March 6. It expressly rescinds Executive Order 13769 as of March 16, 2017, the effective date of the new order. As in the prior order, the new Executive Order suspends for 90 days the entry of nationals of Iran, Syria, Somalia, Sudan, Libya, and Yemen. It also suspends for 120 days the entire overseas refugee processing program of the United States. Moreover, it declares that the entry of more than 50,000 refugees in FY 2017 would be detrimental to the interests of the United States, thus reducing by more than 50% the 110,000 refugee admissions that President Obama and Congress agreed six months ago were appropriate for 2017. There are key changes from the prior executive order, however:
There is no mention of prioritizing religious persecution claims of minority groups Iraq has been deleted from the list of prohibited countries Entry prohibitions do not apply to lawful permanent residents (green card holders) Entry prohibitions do not apply to nonimmigrants who already have valid visas Visa cancellations do not apply to persons already in the United States Case by case waivers may be given to those outside the United States in the following circumstances: o Students or temporary workers previously in the U.S. to study or work who want to resume their work or studies o Those who previously established significant contacts with the U.S. but are currently outside the U.S. for work, study, or other lawful activities o Those seeking to visit or reside with a close family member who is a U.S. citizen, lawful permanent resident, or has a valid nonimmigrant visa o Those traveling on U.S.-sponsored exchange programs o Those, such as young children or individuals needing urgent medical care, whose entry is justified by special circumstances. These changes respond to many of the most damning criticisms of Executive Order 13769 and render the new order more defensible against legal challenge. The March 6 Executive Order, though, clearly anticipates future litigation. For example, Section One devotes multiple paragraphs to describing and defending Executive Order 13769, even though the order explicitly revokes its predecessor. The new order, despite omitting any mention of religious persecution, strongly asserts that religious animus did not motivate Executive Order 13769 s provisions prioritizing refugee claims from religious minority groups. Furthermore, rather than evoking the September 11, 2001 terrorist attacks as a justification for suspending travel and refugee processing, the new order refers to country-specific terrorism threats mentioned in the 2015 State Department Country Reports on Terrorism. There is no doubt, however, that lawsuits will challenge the new Executive Order. Indeed, the State of Hawaii filed suit on March 8, seeking a TRO against the new order. A federal judge in Hawaii has scheduled a hearing for March 15, the day before the new order is due to go into effect. Washington, Minnesota, New York, Massachusetts, and Oregon announced that they would amend the complaint pending before Judge Robart in federal court in Seattle, and would seek an extension of the nationwide injunction that has been in effect since February 3. hatches. One gale-force storm has died down, and other storms are brewing. Batten down the March 10, 2017