Ninth Circuit Issues Clear Rebuke to Trump's Discriminatory Immigration Ban

On Friday, January 27, 2017, President Donald Trump issued an Executive Order entitled Protecting the Nation From Foreign Terrorist Entry Into the United States, which went into immediate effect upon signing. This order imposed a 90-day ban on visas and entry by immigrants from seven predominantly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The order also suspended the US Refugee Admission Program for 120 days, directed the prioritization of Christian religious claims, and banned the entry of Syrian refugees indefinitely, among other things. As a result of this ban, which there was no forewarning of, thousands of immigrants were negatively affected—many were not allowed to travel to the US as planned, had their visas and green cards cancelled upon arrival and were sent back, or were detained upon arrival.

Protests erupted country-wide in response to this discriminatory ban. The order was immediately challenged in courts across the country. The next day, judges from New York and Washington DC granted temporary emergency stays in their jurisdictions on the ban that limited the ability of the Customs and Border Patrol to remove those that had been detained and that ordered authorities to permit lawyers to access detained permanent residents.

On February 3, a federal district court in Seattle, Washington, issued a Temporary Restraining Order on the ban nationwide that effectively halted the implementation on the ban. Surprisingly, Customs and Border Patrol largely abided by the order and processed immigrants from the banned nations the same as it had before the ban. On February 4, Trump appealed the decision to the 9th Circuit and requested an administrative stay as well as an emergency stay pending appeal. Hundreds of organizations, government officials, states, tech companies, unions and law professors have filed amicus briefs in opposition to Trump’s ban. The 9th Circuit immediately denied the administrative stay, which would have reinstated the President’s order, and heard oral arguments on the emergency stay pending appeal on February 7.

Yesterday, in a clear rebuke to Trump, the 9th Circuit issued its decision denying Trump’s motion for an emergency stay. Key aspects of the decision found that:
(1) Trump has not shown a likelihood of success on the merits of its appeal;
(2) that the President does not have unfettered power to do whatever he pleases on immigration and national security matters and that his actions are subject to judicial review;
(3) that the ban clearly violates procedural protections provided by the 5th Amendment’s due process clause to all people within the United States, regardless of immigration status; and,
(4) that Trump failed to provide any evidence to support the urgent need for this ban, and that the public’s interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination outweighs the national security concerns here since there is no evidence linking people from the 7 banned nations to terrorist activities.

Trump will undoubtedly appeal to the Supreme Court, so the outcome remains to be seen. For now, however, Trump’s discriminatory ban is no longer in effect. Local 21 will continue to monitor this ban and other Trump actions that negatively impact immigrant communities.

If you or your family are impacted by this ban, please reach out to us for assistance. We will be setting up a page on our website with resources, updates, and information on upcoming legal consultations around the Bay Area. Below is a list of free or low cost immigration service providers in the Bay Area and Northern California, in no particular order.