“Two states challenged President Donald Trump’s executive order, Protecting the Nation from Foreign Terrorist Entry into the United States, in a U.S. District Court. The District Court preliminarily ruled in their favor and temporarily enjoined enforcement of the order.
The government appealed to the U.S. Court of Appeals for the Ninth Circuit and filed a motion for an emergency stay to reinstate the order while its appeal from the District Court’s decision proceeds.
The court denied the government’s motion because it was not convinced that the government is likely to prevail on the states’ due process claim when the case is adjudicated on its merits. The court reserved consideration, however, on the states’ religious discrimination claim until the merits of the appeal have been fully briefed.
I have found no merit in the States arguments in support of either of those claims.”
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Read Nolan’s complete article at the link which gives his reasons for finding both the Due Process and Religious Discrimination Claims under the Constitution without merit. Additionally, Nolan wrote an earlier article in The Hill on February 8, 2017, which I inadvertently missed, expanding upon his views of the nature of Presidential authority in this area:
I doubt that this case will reach the Supremes in its current posture for four reasons: 1) the Court generally does not review cases at the TRO stage; 2) with only eight Justices and having split evenly on the last major challenge to Executive Power (involving the Obama Administrations so-called DAPA program) I doubt the Court wants to take this on right now; 3) at the TRO stage, the record is very sparse and the Court often looks through the record for some non-Constitutional basis to avoid sweeping rulings; 4) the Court has complete discretion as to whether to grant review in this situation and does not have to provide any reasons for denying review.
As to the merits, I doubt that the EO as currently drafted can pass constitutional muster. For example, as noted by the 9th Circuit panel, a returning lawful permanent resident alien is entitled to full due process under Supreme Court rulings. Whatever that might mean in the section 212(f) context, it has to involve, at a minimum, a hearing before a quasi- judicial official with some type of Article III judicial review. To the extent that Nolan suggests that the President himself can make such determinations or delegate them to non-quasi-judicial officials I disagree.
Also, someone coming to the U.S. with a positive overseas refugee determination would clearly be entitled to a fundamentally fair forum in which to make claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Indeed, anyone arriving in the United States has such a right.
I recognize the Sierra Leonian example cited by Nolan in his 02/08/17 article, and apparently that case was affirmed by the BIA and the 2d Circuit in unpublished decisions. However, it seems to me that under the CAT, a full due process hearing is required before returning individuals to a country where they might be tortured, even where that country has given “diplomatic assurances” that the individual will not be tortured. See Khouzam v. Attorney General, 549 F.3d 235 (3d Cir. 2008). I also doubt that withholding of removal, which can be granted to someone arriving at a land border after an order of removal has been entered, really is an “entry” under the INA.
These are just the most glaring examples of the lack of thought, judgement, and legal analysis that went into this ill-advised Executive Order. Haste makes waste. Bad cases make bad law, etc.
I’m inclined to believe, however, that it is likely that a carefully drafted and properly vetted Executive Order which applies only to individuals overseas who have never been admitted to the U.S., and which provides at least some type of “facially legitimate” factual basis to support it (and I don’t mean the idea that prior Congressional and Executive actions on the entirely different issue of whether an individual who was not from one of these countries, but who had visited one of these countries, could come in under a waiver of any visa vetting at all — “visa waiver”) would likely be upheld by the Court.
But, that’s probably not going to happen under this Administration. Indeed, President Trump is making the strongest possible case that our doctrine of separation of powers and the continued existence of our very constitutional republic will require, if anything, an even higher degree of judicial scrutiny of almost all Executive actions. A President who surrounds himself with such obviously unqualified individuals as Steve Bannon, Stephen Miller, and Mike Flynn shows just why the President’s judgement is not to be trusted — on this or almost anything else.
There is a reason why this issue hasn’t come up before in our history. It’s called wise and prudent Executive judgement. And, it’s sorely lacking in this Administration.
PWS
02/13/17
Paul doubts that the EO as currently drafted can pass constitutional muster. He says, for example, as noted by the 9th Circuit panel, a returning lawful permanent resident alien is entitled to full due process under Supreme Court rulings.
The panel refers to a Supreme Court decision which holds that, “[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.”
The travel ban does not exclude individuals, and there are no charges. It suspends the admission off all aliens from the seven designated countries for 90 days to give the government time to determine what information is needed to allow them to enter the U.S. Consequently, the issue with respect to individual aliens is whether they are from one of the designated countries. But I don’t think that is what Paul has in mind when he calls for due process.
The only issue that requires adjudication is the travel ban itself, which is being done already, so the can’t be what Paul is calling for either.
I don’t know what the due process Paul wants would be in this situation.
Paul says also the someone coming to the U.S. with a positive overseas refugee determination would clearly be entitled to a fundamentally fair forum in which to make claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).
Why? President Obama extended the refugee application process to a full two years when questions were raised about the adequacy of screening refugees from places like Syria. Isn’t that essentially what President Trump is doing? Extending the refugee application process to give his administration time to prepare a more thorough screening process, at which point the application process will be completed.
Paul also comments on the Sierra Leonian example I cited in my 02/08/17 article. It did not involve a CAT claim. The Board affirmed the immigration judge’s finding of eligibility for asylum and his refusal to grant it because it would require admitting the alien and the 212(f)-based proclamation barred his admission. It was appealed to the 2nd Circuit Court of Appeals. They affirmed the Board. I think Paul was the Chairman of the Board when this case was being handled, but that’s just a guess.
Every individual arriving in the US has a right to apply for asylum. I don’t think that can be suspended by 212(f).
Gee, I hope I wasn’t on the panel for Nolan’s case. If I was, I must have gotten it wrong. Not the only time in my career. But, I do learn from my mistakes!
Best,
P
The 9th circuit’s decision pertains to LPRs returning from a trip abroad and aliens seeking admission with a visa. Not likely candidates for an asylum request.