Border Security and Immigration

If Attorney General Jeff Sessions has his way the answer will be yes he told the Senate Judiciary Committee shortly after two federal district courts temporarily prevented the third travel ban from going into effect.

The president’s March 6 executive order (the second travel ban) prevented people from six predominately Muslim countries from entering the United States for 90 days. In June the Supreme Court temporarily prevented it from going into effect against those with a “bona fide relationship with a person or entity in the United State” until the Court could hear the case on the merits in early October.

The Supreme Court will no longer hear oral argument in the travel ban case—previously scheduled for October 10—for now. The Court has asked the parties to brief whether the new travel ban makes the case moot, meaning the dispute, and therefore the case, is over.

The president’s March 6 executive order prevented people from six predominately Muslim countries from entering the United States for 90 days. In June the Supreme Court temporarily prevented it from going into effect against those with a “bona fide relationship with a person or entity in the United States.” This travel ban was set to expire on September 24.

On September 24 the President issued a presidential proclamation indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Also, certain government officials and their families from Venezuela may no longer receive non-immigrant visas.

The Supreme Court will no longer hear oral argument in the travel ban case—previously scheduled for October 10—for now. The Court has asked the parties to brief whether the new travel ban makes the case moot, meaning the dispute, and therefore the case, is over.

The president’s March 6 executive order prevented people from six predominately Muslim countries from entering the United States for 90 days. In June the Supreme Court temporarily prevented it from going into effect against those with a “bona fide relationship with a person or entity in the United States.” This travel ban was set to expire on September 24.

On September 24 the President issued a presidential proclamation indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Also, certain government officials and their families from Venezuela may no longer receive non-immigrant visas.

In July the Department of Justice (DOJ) added two new requirements for states and local governments to receive federal Edward Byrne Justice Assistance Grants (Byrne JAG) for law enforcement funding. Chicago sued Attorney General Jeff Sessions arguing that these new requirements and another requirement are unlawful and/or unconstitutional. An Illinois federal district court granted Chicago’s request for a nationwide preliminary injunction temporarily disallowing DOJ from imposing the two new requirements.     

Congress created Byrne JAG in 2005 to provide “flexible” funding for state and local police departments. In April 2017 DOJ required Chicago (and eight other jurisdictions) to provide documentation that it complies with 8 U.S.C. 1373, which prohibits states and local governments from restricting employees from sharing immigration status information with federal immigration officials.

Since his Presidency began President Trump has been rolling back (or trying to roll back) many of the actions of President Obama. Sometimes (at least in theory) it is easier (practically if not politically) to do this than other times.

The Deferred Action for Childhood Arrivals (DACA) program allowed undocumented persons who arrived in the United States before age 16 and have lived here since June 15, 2007, to stay, work, and go to school in the United States without facing the risk of deportation for two years with renewals available.  

DACA was established through a Department of Homeland Security (DHS) Memorandum during the Obama presidency. Getting rid of a statute requires action by Congress or the U.S. Supreme Court. Getting rid of regulations requires going through the Administrative Procedures Act lengthy notice-and-comment process. Getting rid of an agency memorandum requires issuing a superseding memorandum, which DHS has done.    

It is rare for the Supreme Court to rule that a lower court improperly granted a police officer qualified immunity. It is perhaps even rarer for the Supreme Court to clarify its tried and true qualified immunity standard.

In Hernandez v. Mesa the Supreme Court ruled that the lower court erred in granting qualified immunity to a police officer based on facts unknown at the time of the shooting, but favorable to the officer. More generally, it clarified that the facts learned after an incident are not relevant to granting or denying qualified immunity.  

On its last opinion day of the term, the Supreme Court announced that it would rule on the constitutionality of the Trump administration’s revised travel ban. In the meantime to the extent the executive order prevents foreign nationals and refugees “who lack any bona fide relationship with a person or entity in the United States” from entering the United States, it may go into effect until the Supreme Court rules on the merits of this case.   

The president’s first executive order prevented people from seven predominantly Muslim countries from entering the United States for 90 days, froze decisions on refugee applications for 120 days, and capped total refugee admissions at 50,000 for fiscal year 2017.

The Ninth Circuit temporarily struck it down, concluding this executive order was not religion-neutral, and that it likely violated the due process rights of lawful permanent residents, nonimmigrant visa holders, and refugees.

For the most part and for now, Attorney General Jeff Session’s memo defining ”sanctuary jurisdictions” per President Trump’s sanctuary jurisdictions executive order (EO) returns the law to what it was before the EO.   

Per the EO, so-called sanctuary jurisdictions were afraid the federal government was going to take away all federal grant funding if, among other things, they did not comply with warrantless, voluntary Immigration and Customs Enforcement (ICE) detainers, which instruct jails to detain undocumented persons after they may be otherwise free to go so that ICE may pick them up and deport them.

Many cities and counties, even those that don’t label themselves sanctuary jurisdictions, don’t respond to warrantless ICE detainers because numerous courts have held that doing so violates the Fourth Amendment.

A federal district court has issued a nationwide preliminary injunction preventing the Trump administration from enforcing the sanctuary jurisdictions portion of the Enhancing Public Safety in the Interior of the United States executive order (EO).

The court was asked to accept two very different versions of what this EO means to determine whether it had jurisdiction to hear this case. The most important dispute between the parties is how much federal funding is on the line. The judge chose the Santa Clara and San Francisco version accusing the Department of Justice (DOJ) of trying to “read out all of Section 9(a)’s unconstitutional directives to render it an ominous, misleading, and ultimately toothless threat.”

On March 16, 2017, President Trump’s second travel ban executive order was scheduled to go into effect. Within hours of each other federal judges from Hawaii and Maryland issued decisions temporarily preventing portions of it from going into effect nationwide. Both decisions conclude that the executive order likely violates the Establishment Clause because it was intended to prevent people from for entering the United States on the basis of religion.

The State of Hawaii (and an American citizen of Egyptian descent with a Syrian mother-in-law lacking a visa) brought the case decided by the court in Hawaii.

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