Category: Law

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The Trump travel ban lacks a rational basis

In his ruling upholding the president’s order banning admission to the U.S. by people from seven predominantly Muslim countries, District judge Nathaniel Gorton in Boston deferred to the chief executive’s authority over immigration.

But as the arguments in court that led Judge James Robart in Seattle to temporarily suspend the travel ban suggest, the government may struggle to persuade an appeals court that the executive order bears any fair relationship to the goal of protecting Americans “from terrorist attacks by foreign nationals” admitted to the U.S.

Here Robart asks Michelle Bennett, a lawyer for the Department of Justice, how many arrests of foreign nationals from the seven countries there have been since 9/11.

“Your Honor, I don’t have that information,” Bennett answered. “I’m from the civil division if that helps get me off the hook.”

“Let me tell you,” Robart replied. “The answer to that is none, as best I can tell. So, I mean, you’re here arguing on behalf of someone that says, we have to protect the United States from these individuals coming from these countries, and there’s no support for that.”

“Your Honor, I think the point is that because this is a question of foreign affairs, because this is an area where Congress has delegated authority to the President to make these determinations, it’s the President that gets to make the determinations,” Bennett answered. “And the court doesn’t have authority to look behind those determinations.”

Even if the White House is entitled to deference, the 9th Circuit U.S. Court of Appeals may ask, as Robart did, what tie, if any, the executive order has to the goal of protecting Americans.

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Appeals court rejects White House request to immediately reinstate Trump travel ban

The 9th U.S. Circuit Court of Appeals on Saturday denied a request by the White House to immediately reinstate a ban on travel to the U.S. by people from seven predominantly Muslim countries.

The ruling means that an order by District judge James Robart in Seattle that blocks enforcement of the ban nationwide will remain in effect until the 9th Circuit considers the government’s appeal.

Briefs opposing the government’s request to set aside the ruling by Robart are due Sunday, with a reply by the government due Monday by 3 p.m. Pacific time.

The office of Washington State Attorney General Bob Ferguson, who sued to block the travel ban, is posting legal documents in the case here.

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Boston judge’s ruling unblocking Trump travel ban highlights arguments the White House is likely to make on appeal

The Trump administration on Saturday appealed a ruling by a federal judge in Seattle that temporarily blocks a presidential order banning admission to the U.S. from seven predominantly Muslim countries.

The Department of Justice notified the 9th U.S. Court of Appeals that it will appeal the ruling. For a preview of what the government is likely to argue, we can look to Boston, where on Friday another district judge refused to extend an order that prevented the government from enforcing the travel ban.

The ruling, by District judge Nathaniel Gorton, assessed the likelihood that a group of Iranian nationals who were detained for several hours on Jan. 28 upon arrival from abroad at Boston’s Logan International Airport despite having valid visas, can prevail in court on the merits of six arguments against the travel ban.

Equal protection: The plaintiffs, who also include the global anti-poverty group Oxfam, charged that the executive order discriminates against aliens in violation of the Fifth Amendment. “There is a distinction, however, between the constitutional rights enjoyed by aliens who have entered the United States and those who are outside of it,” Gorton wrote in the 21-page ruling. The government’s decision to categorize non-resident aliens as ineligible for entry is entitled to deference by the courts, he said.

Establishment Clause: The plaintiffs lacked standing to challenge the law under the First Amendment’s Establishment Clause, which prohibits state sponsorship of religion. Though the group claimed the government’s prioritizing refugee claims by people whose religion is a minority religion in their country favors Christianity over Islam, the plaintiffs are not refugees, and therefore failed to show the type of concrete injury required to pursue a claim in federal court.

Due Process: The court rejected the plaintiffs’ challenge to the government’s refusal to admit them as a violation of the Fifth Amendment prohibition depriving someone of a legally protected interest without due process of law. “There is no constitutionally protected interest in either obtaining or continuing a visa,” Gorton wrote, noting that the plaintiffs would have a right to due process if the government initiated deportation proceedings against them.

Administrative Procedure Act: Federal law guards against rules put together sloppily, as the plaintiffs charged the administration did with the executive order. But the presidency is not an “agency” for purposes of the Administrative Procedure Act, said Gorton.

First Amendment: Oxfam did not demonstrate a likelihood of success with respect to its claim that the executive order violates the group’s First Amendment rights, Gorton said.

Potential for harm: Though the plaintiffs face the prospect of staying in the country out of fear that reentry “could prove difficult… there are public interest considerations on both sides,” Gorton wrote. “The public interest in safety and security in this ever-more dangerous world is strong as well,” said Gorton.

Gorton seemed inclined to defer to the government’s claim that the travel ban will help to protect the country, despite the government’s failure to tie visa holders from the seven countries at issue to terrorism.

The American Civil Liberties Union, which represents many of the plaintiffs, vowed to “keep fighting to permanently dismantle this un-American executive order.”

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Trump travel ban blocked temporarily by judge in Seattle

A federal judge in Seattle has temporarily blocked an executive order that bars admission to the U.S. for refugees and people from seven majority-Muslim countries.

The order “adversely affects the states’ residents in areas of employment, education business, family relations and freedom to travel,” U.S. District Judge James Robart wrote in a ruling issued Friday in a lawsuit filed by the states of Washington and Minnesota.

“In addition, the states themselves are harmed by virtue of the damage that implementation of the executive order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the states’ operations, tax bases, and public funds,” Robart added.

The ruling, which applies nationwide, will remain in effect until lawyers for the government have an opportunity to argue why it should be lifted. Airlines said late Friday they would permit passengers from the seven countries who hold valid visas or green cards to board flights to the U.S.

The government has voided as many as 60,000 visas since Jan 27, when the president signed the order.

“We are a nation of laws,” Washington State Attorney General Bob Ferguson told reporters after the ruling. “I’m certain the president will not like this decision, but it is his job, it is his responsibility, it is his obligation as our president to honor it and I’ll make sure he does.”

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‘It’s a beheading of democracy, a beheading of a sacred symbol’

https://twitter.com/DerSPIEGEL/status/827562802571251712/photo/1?ref_src=twsrc%5Etfw

 

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Trump’s immigration order is unconstitutional

Sally Yates paid with her job for standing up for the Constitution.

In a letter Monday to lawyers at the Department of Justice, Yates, the acting attorney general, explained that she was “not convinced” that the defense of a White House order issued Friday that bars entry to the U.S. by people from seven majority-Muslim countries would be consistent with DOJ’s “solemn obligation to always seek justice and stand for what is right.”

That earned her a sacking by the White House, intensifying a crisis that began Friday when President Trump signed the order, leading customs officials to detain people arriving from the countries at issue, visas in hand.

But as Yates appears to have concluded, the order is unconstitutional. Among other reasons: It results in the government’s favoring one religion over another, in violation of the Establishment Clause of the First Amendment.

Though the president denies that the order is a ban on Muslims, he also told an interviewer on Friday that Christians would be given priority when applying for refugee status. As David Cole, legal director of the American Civil Liberties Union wrote in a blog post published Saturday:

Here, too, Trump has violated the Establishment Clause’s ‘clearest command.’ Christians suffering persecution deserve asylum, but so do Muslims suffering persecution and Buddhists and Jews and Sikhs and Zoroastrians. There is no legitimate reason to favor Christians over all others who are persecuted for their beliefs.

Even had Trump not singled out Christians, the order would still be unconstitutional, according to Cole. Thirty-five years ago, the Supreme Court invalidated a Minnesota law that required religious organizations receiving less than half their contributions from members to register as charitable organizations and file an extensive annual report.

Though the statute did not mention any religion by name, members of the Unification Church, which raised most of its donations from non-members and, therefore, did not qualify for the exemption, accused the government of violating its free exercise of religion guaranteed by the First Amendment.

The court agreed. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another,” Justice Brennan wrote for the majority. “The fifty per cent rule sets up precisely the sort of official denominational preference that the Framers of the First Amendment forbade.”

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Trump Muslim ban: voices from the weekend

“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…”
U.S. District Judge Ann M. Donnelly
Eastern District of New York

“The court orders that… respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport.”
U.S. District Judge Leonie Brinkema
Eastern District of Virginia

“It is hereby ordered that respondents… shall not, by any manner or means, detain or remove individuals with refugee applications approved by the U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, lawful permanent residents, and other individuals from Iraq, Syria Iran, Sudan, Libya, Somalia and Yemen who, absent the executive order, would be legally authorized to enter the United States.”
U.S. District Judge Allison Burroughs
U.S. Magistrate Judge Judith Gail Dein
District of Massachusetts

“The unethical and discriminatory treatment of law-abiding, hard-working, and well-integrated immigrants fundamentally contravenes the founding principles of the United States.”
Petition signed by Academics Against Immigration Executive Order, including 37 Nobel laureates

“Ultimately, I fear this executive order will become a self-inflicted wound in the fight against terrorism.”
Senator Lindsey Graham, R-S.C.

“It’s working out very nicely.”
President Donald Trump

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Law

Judge stays Trump Muslim ban

President Trump, meet the rule of law.

A federal judge on Saturday blocked the administration from enforcing an executive order that would deny entry to the United States by people from seven Muslim countries.

In granting a request by the American Civil Liberties Union to stay deportations of as many as a dozen people detained upon arrival at Kennedy Airport, Judge Ann Donnelly of the U.S. District Court in Brooklyn noted that the detainees had arrived with valid visas.

“Our own government presumably approved their entry to the country,” she told lawyers at a hearing Saturday evening, noting that had the detainees arrived before the president signed the order on Friday they would have been admitted to the country without question.

The case of Hameed Khalid Darweesh, an Iraqi citizen who arrived at JFK on Friday evening, shows the serpentine path to the U.S. and the extensiveness of screening of refugees from the affected countries even before the president barred them for at least three months.

As detailed in court papers, Darweesh, 53, worked for the U.S. government in a variety of capacities for a decade starting in March 2003. His jobs included interpreter for the U.S. Army, project engineer for the U.S. Government and a contractor for a firm hired by the Americans.

The work led to Darweesh’s being targeted by anti-American militias. In October 2014, he applied for Iraqi Special Immigrant Visa (SIV) status, which Congress created to provide safety for Iraqis who have faced threats that resulted from their service to the U.S. Here’s what ensued, according to court papers:

  • Darweesh applied for and obtained so-called Chief of Mission (COM) approval from the U.S. embassy.
  • As a SIV applicant, he then filed a petition on Form I-360 with the U.S. Citizenship and Immigration Service.
  • Darweesh then applied for a visa by filing Form DS-260 with the National Visa Center. After that was processed, he was interviewed at the U.S. Embassy in Baghdad.
  • After the interview, the U.S. government conducted various security checks and a medical examination. It took two years from the data Darweesh received COM approval for the visas for his family and him to be processed.
  • Darweesh and his family received the visas on January 25. The family immediately boarded a flight to the U.S. via Istanbul and arrived Friday around 6 p.m. Eastern.

The family had hoped to travel to Charlotte, where they were to receive refugee benefits. But after landing at JFK, Darweesh was detained by agents from U.S. Customs and Border Protection (CBP).

According to the ACLU, Darweesh’s attorney was present in the arrivals section of Terminal 1 but did not enter the CPB area. Darweesh allegedly was moved to so-called secondary screening.

His family waited over an hour before Darweesh emerged with a CPB officer to return passports for every member of the family except Darweesh, who was then returned to screening.

At around 11:30 p.m., CPB officers asked the family to return to the security zone for additional questioning of Darweesh’s wife. The officers refused to question Mrs. Darweesh in the arrivals area despite requests of counsel. Darweesh himself allegedly was unable to meet with his attorneys despite their making multiple attempts to meet with him.

CBP officers allegedly told the attorneys they were not the ones to speak with about seeing their clients. When the attorneys asked with whom they should speak, the CPB agents allegedly told them, “Mr. Trump. Call Mr. Trump.”

In court papers, the ACLU charged that Darweesh’s detention denied him his right to apply for asylum in violation of U.S. and international law. The U.S. cannot return Darweesh to Iraq, where he might face persecution or torture, they alleged.

What’s more they alleged, the Trump executive order is “substantially motivated by animus toward – and has a disparate effect on – Muslims” in violation of the Fifth Amendment’s due process clause.

“In every conceivable way, the vetting process is already extremely thorough,” Mostafa Hassoun, a Syrian refugee living in the U.S., wrote Saturday in Politico. “I know this because I went through the process myself.”

Judge Donnelly set a date at the end of February to hear the case.

Throughout Saturday, while Darweesh and others were detained despite holding valid visas, and their attorneys worked to secure their release, and thousands of Americans protested at airports, the president took to Twitter to complain about the “failing” New York Times.

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Trump ‘extreme vetting’ to face court challenges

Of the 19 terrorists who attacked the U.S. on 9/11, 15 were from Saudi Arabia, two were from the United Arab Emirates, one was from Egypt and one from Lebanon.

President Trump invoked the image in an executive order signed on Friday that makes citizens of seven majority Muslim nations ineligible for a visa to enter the U.S. None of the nations include countries of the terrorists who carried out the 9/11 attacks.

The order directs the Homeland Security secretary to determine what information is needed to issue visas to people from Iraq, Syria, Yemen, Somalia, Sudan, Libya and Iran. The American Civil Liberties Union called such vetting “a euphemism for discrimination against Muslims.”

The order also bars refugees from entering the country for four months, and suspends admission of refugees from Syria indefinitely. The president said he would prioritize persecuted Christians from the Middle East as refugees.

The Council on American-Islamic Relations said Friday it would sue to challenge the order on behalf of more than 20 people who charge that it violates the First Amendment.

“The courts must do what President Trump will not — ensure that our government refrains from segregating people based on their faith,” Gadeir Abbas, one of the group’s attorneys, said in a statement.

Separately, lawyers for two Iraqi men reportedly en route to the U.S. on Friday evening with valid visas and detained at Kennedy Airport have filed a lawsuit challenging the ban on refugees as unconstitutional. It was unclear how many refugees were detained at airports nationwide.

Presidents have broad powers to control the country’s borders, which the administration seems likely to assert in court. Because absent alternative facts, the president will be unable to point to anything that ties the nations at issue to the September 11 attacks. As a report by New America notes, “every jihadist who conducted a lethal attack inside the United States since 9/11 was a citizen or legal resident.”

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Driver not deprived of right to consult with counsel before taking blood-alcohol test, appeals court rules

A suspect charged with driving under the influence of alcohol cannot keep the results of a blood-alcohol test out of court because he did not have an opportunity to consult with an attorney before taking the test, a state appeals court in Brooklyn has ruled.

Whether to suppress evidence of a blood-alcohol test because the suspect was deprived of his right to counsel depends on whether the attorney “entered” the case before the test was given, the Appellate Division’s Second Department ruled on Jan. 11.

An attorney enters a criminal matter and triggers the right to counsel when either a suspect asks to speak with an attorney or the attorney or his or her professional associate notifies police that the suspect is represented by counsel, Judge Randall Eng noted on behalf of the four-judge panel.

“Because the record does not establish that counsel ‘entered’ the case before the test was given, the [trial court] erred in finding that the blood-alcohol test was given in violation of the defendant’s limited right… to consult with counsel,” he wrote. “Notification given to the police by a third party, such as a member of the defendant’s family, is not sufficient to establish counsel’s entry into the case.”

The appeal arose from a prosecution that began on August 26, 2013, when the defendant allegedly got into a fight with a friend at late-night party in North Massapequa. The friend drove away and the defendant got into a car and chased him, before allegedly ramming his car into the back of his friend’s car.

The police arrived, arrested the defendant and took him to the hospital. At 2:35 a.m. the suspect consented to a blood-alcohol test. Three minutes later, the police learned the name and telephone number of an attorney for the suspect, but the record did not establish how they obtained the information. (A police officer testified he did not remember how he learned it.)

At 2:49 a.m., police administered the test. At 3:30 a.m., the suspect was advised of his rights and made a statement to police that implicated him in several crimes arising from the incident.

At trial, the defendant asked the court to suppress both the result of the blood-alcohol test and his statement. The trial court sided with the defendant, holding that police violated his right to consult with an attorney about whether to take the test.

The Appellate Division, disagreed, noting that by law, any person who operates a motor vehicle in New York “shall be deemed to have given consent” to a test of his or her breath, blood or urine to determine the driver’s blood alcohol level. Drivers who refuse the test face automatic revocation of their license to drive and admissibility at trial of evidence that the driver refused to take the test, provided that the police have warned the driver in advance of the consequences of his or her refusal.

When deciding whether to refuse to take the test, a defendant may wish to consult with counsel, said the court, adding that by law police have no duty to warn a defendant of this limited right before asking the defendant to submit to the test.

Still, “when an attorney has actually entered the case, a defendant who had not asked to speak with an attorney must be made aware of the attorney’s entry into the case so that he or she may decide whether to consult with counsel before making a refusal decision,” Eng wrote.

Criminal defendants in New York have an indelible right to counsel, which the state’s highest court has held to mean that a defendant in custody in connection with a matter for which he is represented by counsel may not be questioned by police in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney.