Immigration

Resources

• Immigration Law Help (a national directory of more than 950 free or low-cost nonprofit immigration legal service providers in all 50 states)
• Ready California (a statewide collaborative of service provider that provides community education or legal services workshops)
• Canal Alliance, Immigration Legal Services offers immigration legal services to low-income Marin County residents. It assists with general legal consultations, asylum and SIJS for children, naturalization, DACA, TPS, U visas, T visa, green card renewals, and VAWA. At this time it is not taking new clients for family based cases, adjustment of status or deportation defense.
• Know your rights (English, Spanish) (From Canal Alliance)
• Immigrant Legal Resource Center: This page includes documents on Immigrant Rights, Help for Immigrant Families Post-Election, Family Preparedness Plan, Special Considerations for LGBTQ Immigrants. Many documents are in multiple languages and are updated frequently. New resources are added frequently.
• U. S. Immigration Website: https://www.uscis.gov/
• Travel Immigration Website: https://travel.state.gov
• Immigration Customs & Enforcement detainee locator system: https://locator.ice.gov/

Immigration Executive Order Status

(Source: Dominican University of California legal counsel, February 10, 2017)

On February 9, 2017, the 9th Circuit Court of Appeals upheld in all respects the national temporary restraining order (TRO) granted by US District Court in Washington State. This is a major victory in the litigation fighting the President’s Executive Order on immigration, but it is by its nature temporary. The TRO will remain in place for now while this particular litigation continues, allowing all affected individuals to travel for the time being. But our ability to advise clients effectively still is severely limited by the rapidly changing legal landscape and the uncertainty of next steps. We can expect additional court rules in this case and others and additional Executive Orders, and at this point we can’t predict what they will say.

Procedure – What Could Happen Next?

This 9th Circuit appeal came at the earliest moment in this lawsuit. The States of Washington and Minnesota sued the federal government and requested a preliminary injunction stopping enforcement of the Executive Order until the case is resolved, which could take a year or more unless the parties settle or the case is rendered moot by withdrawal of the Executive Order. The District Court issued an emergency TRO to last for a few days until the parties could prepare and conduct an evidentiary hearing regarding the merits of the States’ request for a preliminary injunction. The Trump administration appealed the emergency TRO. A panel of three judges from the 9th Circuit considered the case and declined to bar the emergency TRO. The parties had the opportunity and were encouraged to submit evidence to the 9th Circuit, for example to show that there is a significant and urgent threat of harm to the US by individuals from the listed countries. But no such evidence was submitted, not even under seal for review by the judges only.

So as it stands, the TRO was not defeated and it continues for a short time (usually a matter of days not weeks) so the District Court may conduct an evidentiary hearing and consider whether to grant a Preliminary Injunction for the duration of this law suit.

The Trump Administration could response to the 9^th Circuit’s decision in several ways:

They could focus on preparing for the impending hearing on a Preliminary Injunction in federal District Court in Washington State, and appeal if the District Court issues a Preliminary Injunction. The hearing would focus primarily on whether the federal government can prove (a) it has a strong likelihood of success in defending the Executive Order as the lawsuit continues and (b) the federal government (and public interest) would be irreparably harmed by a Preliminary Injunction during the lawsuit. The 9th Circuit found that the federal government didn’t prove these two points in their initial submissions in the appeal of the emergency TRO - but the parties hadn’t had the opportunity to conduct a full evidentiary hearing on this yet because the emergency TRO was appealed to the 9th Circuit before the hearing. Either side could appeal to the 9th Circuit (again) after a hearing on the Preliminary Injunction and presentation of evidence on these points.

The Trump Administration could ask the entire group of 9th Circuit judges to consider the TRO appeal again, hoping for a different decision from the full court than from the panel of three 9th Circuit judges. It would take a few days for the full 9th Circuit to rule on an appeal of an emergency TRO.

The Trump Administration could appeal the 9th Circuit decision on the emergency TRO to the US Supreme Court. Justice Kennedy is the US Supreme Court Justice assigned to the 9th Circuit, so Justice Kennedy would decide in the first instance how the case would proceed. Justice Kennedy could rule either way on the emergency TRO himself, and his decision could be appealed to the full Supreme Court, or he could refer the case to the entire Supreme Court right away. At present the Supreme Court is short a justice, with the approval of Justice Gorsuch pending before the US Senate, so review by the Supreme Court now could result in a 4-4 tie which would serve to uphold the 9th Circuit’s decision.

The Trump Administration could focus on one or more of the lawsuits filed in other federal district courts and work to obtain an appellate ruling in its favor in another US circuit court of appeal. If two or more US circuit courts issue inconsistent rulings, the Trump Administration would be in a better position for appeal to the US Supreme Court, and perhaps by then there would be a full panel of 9 judges at the US Supreme Court to avoid a tie.

The Trump Administration could withdraw the Executive Order and issue a new one better crafted to survive judicial challenge. This approach makes a lot of sense from a technical legal perspective but in effect requires the Trump Administration to concede that the first Executive Order was a failure.

Substance: What Did the 9^th Circuit Judges Decide About Executive Orders?

The three 9th Circuit judges who ruled on the emergency TRO came to a unanimous decision. These judges each have significant prior experience with immigration cases and their 29-page decision cites extensive legal precedent from the federal courts. The decision states that the executive branch can’t abridge the right to travel without due process, and that due process protections extend to some types of individuals who are abroad and seek to enter the United States. The 9th Circuit relied on the due process claim and so didn’t reach the merits of the religious discrimination claim other than to say it’s clear that courts may consider the purpose and intent of a challenged law in reviewing a constitutional challenge, even if the law appears neutral (nondiscriminatory) as written. The decision states that the Executive Order stands on its own and must be considered on its face, and that subsequent memos or guidance issued by, for example, the White House Counsel interpreting the Executive Order (in this case, to state that permanent residents are not subject to it) do not amend the Executive Order to make it legally valid if it’s not valid on its face as issued. The decision says the federal government didn’t prove that the White House Counsel’s memo is binding on the government agencies responsible for immigration benefits and enforcement. The decision states that it’s not the judiciary’s role to re-write an Executive Order, and “the political branches [the Executive Branch and Congress] are far better equipped to make appropriate distinctions.”

Conclusion

So for now the TRO maintains the status quo for visas and travel before the Executive Order was issued. That said, the status quo allowed US authorities to screen travelers and visa applicants for security threats and exclude individuals from the US in the exercise of discretion, and that is still the case. Reports from the field indicate that individuals are experiencing higher scrutiny generally about country of origin and trips to countries not friendly with the US, even in domestic travel. Each individual should consider the risk of travel in light of their own background and travel history and exercise caution in this enforcement climate. Also the rules could change again without much notice. There is no assurance that the TRO will be replaced by a Preliminary Injunction. The Trump Administration could pursue another appeal or issue another Executive Order. This remains a rapidly changing situation that we will monitor as events unfold.

Recommendations Regarding Executive Order

“Protecting the Nation from Terrorist Attacks by Foreign Nationals”

Updated January 31, 2017

Many questions have been raised since the signing of President Trump’s Executive Order (EO), “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” affecting citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Below are immediate recommendations from the University legal counsel with respect to individuals from these countries:

• All individuals from the listed countries in any nonimmigrant status and applicants for adjustment of status to permanent resident with pending I-485 applicants to adjust status, and their family members, should avoid departing the United States until further notice. This includes travel to Canada, Mexico and other contiguous territories. At least for now, this includes individuals who were born in one of the listed countries and have become citizens of a country not on the list. The EO directs US immigration officials to stop issuing visas and visa renewals at consular posts and to stop travelers at US ports of entry even if they have unexpired visas and/or unexpired I-94 admission records. The EO has no direct impact on individuals who are in the United States and remain here.
• The US Department of Homeland Security has confirmed that the EO does not affect lawful permanent residents who already have green cards unless there is specific information that the individual poses a threat to safety or security. Permanent residents with green cards should be able to return from travel abroad. That said, discretionary travel in this environment is not recommended. Avoid travel abroad, as that is a conservative approach for now.
• It will be difficult or potentially impossible to onboard new employees from these countries in 2017 unless they already are in the United States.
• Employees of the company abroad and commercial partners and vendors who reside in these countries or are originally from these countries will not be able to travel to the United States or be admitted to the United States at US ports of entry for at least 90 days unless they are lawful permanent residents of the United States.
• If there is a situation involving national interest of the United States, it may be possible to apply for an exception.
• There have been reports of individuals from other Muslim-majority countries not on the list trying travel to the United States and having their visitor visa cancelled at the airport. It’s possible additional countries will be added to the list or that visas will be cancelled on a case-by-case basis. It’s not uncommon for visas to be cancelled for individuals from a particular country if there is a security concern about that country. This means the person must apply for a new visa for future travel to the United States, but there’s no assurance a new visa will be issued in a reasonable time frame, if at all.
• There are also reports of information from senior officials at US Citizenship andImmigration (USCIS) saying USCIS plans to apply the "security or public-safety threat" review described in the Executive Order to adjudication of all immigration benefits at USCIS, broadening application to nonimmigrants physically present in the United States who apply for immigration benefits such as extension or change of status. The University legal counsel has no information on timing or scope of this change in USCIS procedures. Congressional staff expect additional guidance from DHS soon to clarify how the Executive Order will be applied going forward.

The University is monitoring the rapidly changing situation. If you have specific questions, please direct them to Hanna Rodriguez-Farrar (hrf@dominican.edu; 415.482.1927).