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A legal perspective on President Donald Trump’s Executive Order banning immigration

Since Friday January 27th  the world has gone nuts over President Trump’s Executive Order banning immigration from certain countries. Even though I am a NY traffic ticket defense lawyer, I thought this to be a good time to analyze legally what’s really going on. The 2 main issues are the authority to issue an Executive Order, and what it means to have Due Process rights in the United States.

What an Executive Order Is

There are 3 branches of Government – Executive (the President), Legislative (Congress), and Judicial (the Courts). An Executive Order is an order by the chief executive of the Executive of the Executive Branch; i.e., the President.

Limitations on Executive Orders

An Executive Order can only run to the Executive Branch of government. In other words, the President cannot issue an Executive Order ordering the legislature or judiciary to do something. Likewise, an Executive Order cannot order a State Government to do something. That would violate the US Constitution as well.

An Executive Order cannot be unconstitutional, nor can it order something be done or not be done contrary to federal law. For example, while an Executive Order can order Federal Agencies to streamline the permitting processes under it’s authority to issue permits, an Executive Order cannot order that a permit is not required because  the requirement for a permit is statutory.

An Executive Order can be issued at the whim of the President, and likewise vacated at the whim of the President. When a new President takes power he or she can vacate Executive Orders of the prior President.

The Underlying Authority to Ban Immigration

The analysis begins with the fact that there is no Constitutional Protection for the right to immigrate to this country. In other words, if you are not physically here you have no constitutional rights to come here. So it’s not unconstitutional to ban immigration to the United States.

Further, the underlying right for the President to ban immigration is statutory. The legislature (Congress) has given the President that power, and given it to the President very broadly. The law is codified at 8 USC 1182(f):

“Suspension of entry or imposition of restrictions by President. Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate…”

The Executive Order Signed by Trump Banning Immigration

The main bullet points of the Immigration Ban Executive Order are as follows:

  • Restricts immigration from seven countries – Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen – from entering the U.S. on any visa category.
  • Suspends all refugee admission for 120 days
  • Bars all Syrian refugees indefinitely
  • Applies only to non-U.S. citizens
  • Includes individuals who are permanent residents of the U.S. (green-card holders) who were traveling overseas to visit family or for work
  • The order also applies to individuals of the 7 countries who hold dual citizenship with another country. For instance, it would apply to an individual who holds both Iraqi and Canadian Citizenships
  •  Does not apply to individuals who hold U.S. citizenship along with citizenship of another country

The Judicial Action & Due Process Rights

The issue is not over the actual Executive Order itself, but a narrow one regarding enforcement of the order against those people who made it here AFTER the order was signed but BEFORE it could be executed upon.

In other words, suppose you have a student visa and were flying back to the Untied States from Libya the day the order was enacted. You were allowed on the flight because word had not yet reached the airlines that your visa and passport were no longer valid to board the plane. However, Customs is refusing you entry upon arrival. Even though these people have no protected right to be here, since they made it they are entitled to the Constitutional protection of Due Process.

Due Process is, in a nutshell, the Constitutional Protection AGAINST summary action by a government official without judicial oversight. Having Due Process rights does not turn upon whether or not you are a citizen. Having Due Process rights turns upon whether you are within the United States of America.

In other words, for those handful of people who have made it here for one reason or another whom were stopped by Customs, Customs does not have the unilateral authority to put them on a plane back to where they came from. Those persons are entitled to a fair hearing, the right to contest removal, and judicial oversight of their removal should a court find that their removal would be legal.

The Court Proceedings the Weekend of January 28th – January 29th

People were being turned around at the border by Customs without a judicial hearing. However, litigating the legality of turning around people who made it here after the Executive Order was signed takes months and sometimes years. By then every person who could have benefited from a favorable ruling would already have been removed, rendering the court case moot. Consequently, the court issued an Injunction.

An injunction is a court order directing a party to do, or to refrain from doing, certain things. They were entitled to this injunction because unless it were granted the petitioners (those who were here and being removed) would have suffered irreparable harm should the removals be allowed to continue.

So, the courts ruled that the persons here could not yet be removed. This stay of removal will continue until the court makes a ruling on the legality of deporting individuals who got here subsequent to the Executive Order being enacted.

Do you currently hold a Green Card or have other legal status?

My colleague and good friend Marina Shepelsky is an attorney located in Brooklyn who specializes in immigration law. She can be reached at (718) 769-6352, via e-mail at shepelskylaw@gmail.com, and online here. Here is Ms. Shepelsky’s advice if you are currently a foreign national living in the United States:

  •  If you have not naturalized (applied for US citizenship), and you are eligible, apply today! Waiting times for all immigration benefits lengthening very soon due to “extra vetting”.
  • USCIS has very many inefficient and inept workers. This will add to all wait times. and create new hurdles. So apply now! 
  • Current Social Security laws allow certain green card holders to receive federal Social Security benefits. Our President is a businessman and will be looking to solve problems like that our Social Security fund may be depleted by the time all of us need it when we retire – by cutting costs. He may be looking to change some laws that currently allow non-US citizens to get federal benefits.
  • There should be no reason why you are a green card holder for 20 years with no criminal record for you NOT to naturalize. If you don’t need your US citizenship, why do you want your green card? Naturalize now!
  • There is a good chance that benefits such as Prosecutorial Discretion and Deferred Action for Childhood Arrivals being terminated. 

If you are a Green Card holder or have other legal status here contact immigration attorney Marina Shepelsky today at Marina Shepelsky at (718) 769-6352 or E-mail at shepelskylaw@gmail.com.