New York’s Eastern District Court’s Judge Ann Donnelly gives relief to those with valid visas

Seattle Court Judge James Rabart issues Temporary Restraining Order applicable across the US

~By Parsa Venkateshwar Rao Jr

The devil is in the details. Indeed. A reading of the full text of US President Donald Trump reveals that it is ridiculous and gratuitous, not illegal.

These are the reasons.

It is ridiculous because it does not cite clear and present danger for the executive order. It cites the terrorist attack of September 11, 2001 to argue for the need of the present executive order. In Section I called “Purpose”, it says:

“The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.”

He then offers a weak rationalisation of what he intends to do:

“Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”

As a matter of fact, he seems to be blaming the earlier Republican administration of George W Bush, or at the most that of Democratic administration of Bill Clinton in the late 1990s.

What does he intend to do? The order states, “Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.”

Second, it cites a law on “visa waiver” that is already part of the US law, that is “8 U.S. Code 1187 – Visa Waiver Program for Certain Visitors”, and which has a specific reference to Iraq and Syria, and says that the person who has applied for visa is required to show that he or she was “12 NOT PRESENT IN IRAQ, SYRIA OR ANY OTHER COUNTRY OR AREA OF CONCERN …on or after March 1, 2011”. This is a provision present on the US statute much before Trump assumed office as president. All that he did was to invoke a law which was already there. This is why, it is gratuitous.

And if Trump is doing something that is permitted by US law, then he cannot be accused of violating it. He did not create the stringent law. He is using it.

Then there is the explicit provision of what Secretary, Homeland Security is bound to do under this part of the law on visa waiver. 12E of this provision says,

“Beginning not later than one year after December 18, 2015, and annually thereafter, the Secretary of Homeland Security shall submit to the Committee on Homeland Security, the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on the Judiciary of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, the Select Committee on Intelligence, and the Committee on the Judiciary of the Senate a report on each instance in which the Secretary exercised the waiver authority under subparagraph (C) during the previous year.”

The decision of the Eastern District Court of New York Judge Ann Donelly in response to habeas corpus petition filed by two Iraqi refugees, Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi “on behalf of themselves and others similarly situated”, who have valid travel documents but who were detained in New York by the US Customs and Border Protection in the wake of Trump’s January 27 executive order was stayed. Judge Donelly said, “The petitioners have a strong likelihood of success in establishing that the removal of the petitioners and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution…”

And she said, “The issuance of the stay of removal will not injure the other parties interested in the proceeding…” and she enjoined and restrained the officials and others of the US Customs and Border from “removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the US Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorised to enter the United States.”

The judge did not strike down Trump’s executive order as unconstitutional. The hearing is not over in the matter. But she gave relief to those with valid entry papers who were being harassed by the overzealous or blinkered US Customs and Border Protection (CBP) officials.

Judge James L Rabart of Western District Court of Washington of Seattle has on February 3 issued a Temporary Restraining Order (TRO) on complaints filed by the states of Washington and Minnesota. The judge has found merit in the plea of the two states that “The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parents patriae of the residents living within their borders. 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.”

Referring to the Federal defendants’ plea that the restraining order should be restricted to the States at issue and not extended to the whole country, Judge Rabart said in his order, “partial implementation of the Executive Order “would undermine the constitutional imperative of a ‘uniform Rule of Naturalization’ and Congress’ instruction that ‘the immigration laws of the United States should be enforced vigorously and uniformly.’”

There is no doubt that there is a legal tussle between the immigrants from the seven countries on the list—and this list was created when former president Barack Obama was in office—with valid entry papers and the officials. It has also to be noted that the Trump executive order is about rigorous checking and vetting. But those who have been cleared cannot be stopped. Interestingly, the arguments of the States of Washington and Minnesota also reveal other aspects of public interest, including the economic interests.

Lead picture: It has also to be noted that Donald Trump’s executive order is about rigorous checking and vetting. Photo: UNI