Senior National Affairs Reporter
Yahoo NewsJanuary 28, 2017
Civil liberties groups are challenging Donald Trump’s executive order barring all immigration from seven majority-Muslim nations for 120 days, which the president signed Friday evening. Donald Trump also temporarily canceled admissions from the entire U.S. refugee program.
On Saturday morning, the Department of Homeland Security confirmed that legal permanent residents of the United States with green cards are included in the ban, and will not be allowed to reenter the country. Later, the agency said they would decide on a “case-by-case” basis. As officials raced to understand the new executive order, U.S. green card holders from Iran and the six other countries were reportedly kicked off flights, sent back to their country of origin or detained at airports. (The banned countries are Syria, Iraq, Iran, Sudan, Somalia, Yemen and Libya.)
Less than 24 hours after Trump signed the order, at least three lawsuits challenging the ban have been filed or are in the works. The ACLU filed a lawsuit in federal court Saturday on behalf of two Iraqi men who were detained at John F. Kennedy Airport on Friday night. The men were both granted visas before Trump’s order was signed, but were detained upon arriving in the United States, due to the order.
One of them, Hameed Darweesh, was released Saturday afternoon. He was granted a special immigrant visa for his service to the U.S. Army as a translator for 10 years in Iraq. “We know America is the land of freedom,” he said in a brief press conference after his release, adding that he was “grateful” to the country for accepting him.
The ACLU is going forward with its lawsuit on behalf of the other detained man. It seeks an immediate injunction barring the Trump administration from blocking immigrants based on his executive order, arguing that the order is illegal based on a a 1965 law banning discrimination in immigration based on national origin.
The Immigration and Nationality Act of 1965, signed by President Lyndon B. Johnson, aimed to end earlier quota systems that gave preference to immigrants from European nations. As David Bier of the libertarian Cato Institute argues, this law prevents immigrants from being discriminated against based upon “the person’s race, sex, nationality, place of birth or place of residence.” If Trump wants a ban on entry from these countries — even temporarily — he needs Congress to pass that law, Bier argues.
Trump is relying upon a 1952 law that allows president to “suspend the entry” of “any class of aliens” if they disadvantage the United States. But Bier and other legal scholars believe the 1965 law supersedes that right.
“The 1965 law is clear,” said legal scholar Erwin Chemerinsky, the dean of the law school at the University of California at Irvine. “The law prohibits discrimination based on national origin. This is discrimination based on national origin.”
The ACLU is also considering crafting a new challenge arguing that the executive order violates the establishment clause of the Constitution, which prevents the government from favoring one religion over another.
“Donald Trump has made it very clear that this is designed to disfavor Muslims on the one hand and to favor Christians on the other,” David Cole, the legal director of the ACLU, told Yahoo News. “He told Christian Broadcast News that that was the whole purpose of it: to give priority to Christians.”
Trump told Christian Broadcast News on Friday that he would give Christians the “priority” in the refugee program.
“It’s black-letter establishment clause law that the government cannot take sides between religions,” Cole said. “The order on its face does that.”
The Council on American-Islamic Relations (CAIR) is also filing a lawsuit in federal court with 20 plaintiffs who argue that the intent of the executive order is “to ban people of the Islamic faith from Muslim-majority countries from entering the United States” — a violation of the establishment clause.
The apparent inclusion of green-card holders from the seven countries in the ban is likely to present its own raft of lawsuits.
“They have at least a statutory right to reside in the United States permanently and to return to the United States,” Cole said. “To the extent that President Trump has sought to override that statutory right, yes, they might be another problem.”
About 500,000 people from these seven countries have received green cards over the past decade, ProPublica estimates.
Mana Yegani, an immigration lawyer in Houston, said she has been “up all night” fielding calls from family members and friends worried that their loved ones who hold green cards won’t be able to return to the country. One of her clients, a U.S. green card holder from Iran, works for Chevron in Houston and was due to arrive in the city at around 4 p.m.
“I’m waiting on standby to see what happens to him,” she said. “I’m very concerned.”