Tuesday, February 7, 2017


(New York Feb. 7, 2017)
LEGAL ARGUMENTS WERE presented to the United States Court of Appeals for the Ninth Circuit today, on the matter of Donald Trump's executive order on immigration policy.

The legal issue that the court must decide on appeal is a narrow one.

The legal issue on appeal is whether the Temporary Restraining Order which the lower US District court entered, which temporarily enjoined the federal government from enforcing the ban, should continue, pending a full trial on the merits of the case.

Here is what to watch for.

Two states, Washington and Minnesota, have challenged Donald Trump's sweeping ban of entry into the United States by visa applicants from seven, predominantly Muslim countries.

The lower federal court granted an application for an injunction to temporarily stop the government from enforcing the ban. This Temporary Restraining Order continues until the case could be heard on a full evidentiary trial.

In granting the TRO, the lower court agreed with the challengers to the federal ban, that unless the court issued a stay of the government's enforcement of the ban, the plaintiffs would suffer "immediate and irreparable harm." The plaintiffs were also required to prove to the lower court that they had a "probability of prevailing on the merits, when the case comes to a full evidentiary trial." Further, the plaintiffs proved to the US District Court that the "defendants would not suffer substantial prejudice" by the entry of the TRO.

These are the legal elements that the plaintiffs were required to establish before the lower federal court. These are the legal requirements for entry of an Injunction and Temporary Restraining Orders as set out under the Federal Rules of Civil Practice and by US Supreme Court and other federal court case decisions.

By granting the application for a Temporary Restraining Order, the lower court found that the plaintiffs had met their legal burden under the Federal Rules.

The government appealed to the US District Court of Appeals in order to vacate the TRO. Today's legal arguments centered on whether the lower court erred in its finding that the plaintiffs had met their legal burden under the federal rules and the applicable case law.

When construing the facts before the US Court of Appeals, it is clear that the appeals court will affirm the lower court's ruling. The appeals court is highly likely to continue the Temporary Restraining Order against the federal government.

Clearly, neither Donald Trump or any part of the government CSIS branches may indiscriminately ban persons reentering the US, who have a legal liberty and property right entitlement, arising from their status as Permanent Resident Card holders.

Moreover, it is clear that under Trump's overly broad executive order, the government could not restrict entry of persons who held valid visas to enter the US and had "touched US soil."
The US Supreme Court had earlier determined that any person, who has touched US soil or is found within US Territorial Waters, is entitled to a Due Process hearing before a court of competent jurisdiction. This means that any alien who is undocumented or out of status, can only be deported after having an opportunity to defend themselves before an Immigration Judge, in court.

Surprisingly, news reports of the oral arguments made today before the Ninth Circuit, did nor indicate that "property and liberty" interests were at stake. This is a major deficiency in the argument by the plaintiffs in failing to make a Due Process and Liberty and Property entitlement argument.

The other issues, which were widely covered was whether the executive order constituted religious discrimination. This is a difficult argument for the plaintiffs to prevail on. Although, the seven banned countries are predominantly Muslim, the population's religion is not sufficient alone to evidence a case of religious discrimination.

The plaintiffs would be on firmer ground to argue that the issuance of Permanent Registration Cards and lawful visas, constitutes an enforceable liberty and property right under the US Constitution. Other issues of religious discrimination, should have been secondary. The pitfall that plaintiffs need to avoid, is being tempted to argue that all aliens residing in the banned countries have a legal right to apply for visas and obtain entry into the US.

This would be a fatal argument. Aliens who are overseas have no rights under US law.
The focus must be on the aliens who were restrained from entering the US at a point of entry, despite having obtained lawful permanent US residency status and a valid visa under the eligible categories.
With the widespread news accounts covering the activity before the Ninth Circuit on the Trump immigration fiasco, you can be reasonably certain that, based on reasons explained here, the US Court of Appeal will DENY the appeal and will AFFIRM the lower court's entry of the TRO, pending a full evidentiary trial.

The consequence of AFFIRMING the lower court, is to allow any alien who continues to be restricted from entry in the US while at points of entry, to be permitted entry pending a full trial on the legality of Trump's executive order.

At the same time, the Court of Appeals may AFFIRM IN PART, by allowing all aliens at US Points of Entry to continue into the US, but will remove any part of the Temporary Restraining Order which limits the government's ability to deny visas to future applicants within the seven banned countries.
Those who arrived prior to entry of the court's decision, will likely be permitted their entry and stay within the US. Those aliens who apply in the future for a visa within one of the seven banned countries may be legally banned from entering the US.

The lower court's decision may be AFFIRMED or AFFIRMED IN PART, with the provision that the executive order may ban future visa applicants from the seven designated countries.

By affirming in part, both sides will have won. Not only would this comply with applicable law, but it appeals as the Solomon solution.
Ray Oliver
can be reached: 973.856.8000 or cell: 862.276.1505
Ray Oliver is a past Chair of the New Jersey State Bar Association, Transnational Litigation and Arbitration Committee and is past Chair of the NJSBA, Administrative Law Section. He has been referred to in legal publications as being a lawyer with "vast international law experience." He has represented clients on international issues, in immigration, including representation of UN Diplomats and foreign countries. He holds a JD degree from John Marshall Law Chicago and post legal instruction in Transnational and Multi District Litigation from Harvard Law.

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