the Refugee Ban 2: the Stay

What you heard:

A federal judge granted an emergency stay against the recent executive order that banned entry to the US by refugees and people born in certain countries.

What it is:

Federal judges are appointed by the President (fancy!), confirmed by the Senate, and exercise the powers given to the judicial branch in Article III of the Constitution. There are 94 US District Courts, each headed by a US District Court Judge (DCJ). These 94 Courts are divided into 12 groups that each have a US Court of Appeals; above those 12 are our friends over at SCOTUS. The federal judge in this case is Judge Ann Donnelly, a DCJ for the Eastern District of New York.

A stay is a ruling issued by a court that stops the proceedings/actions in question. Saturday’s is an emergency stay because it came out of an emergency hearing, which just means the case wasn’t originally on the docket for the day.

Read all about the recent executive order in the original Refugee Ban article here.

What it means:

While this stay is a breath of fresh air to a country being throttled by the new administration, it is only temporary and very narrow in scope. It will be in effect until the court has time to hear the full case, at which time it will decide to make the stay permanent or dismiss it.

The stay applies only to people that were caught in the middle of the shitstorm. News broke all day Saturday about people – including legal permanent residents – being detained at airports across the country as the e-order went into immediate effect: these are the people to which this stay applies. The ruling basically means that, if you landed in a US airport with legal documentation proving your right to be in this country, the government cannot ship you away to wherever you came from, your country of origin, or wherever else it thinks it should send you.

Unfortunately, the ruling did not specifically note that travelers had to be released – just that they couldn’t be put on planes out of the US. It’s still unclear what will happen to those currently detained at airports between now and a court hearing.

What could happen:

Judge Donnelly’s ruling lays out a few reasons why she granted the stay, among them eminently reasonable things like “refugees will be in imminent danger if forced to return to their war-torn homelands” and “the US government itself already reviewed and approved these peoples’ legal applications to be in the country”.

However, the most promising thing about her ruling, to me at least, is this piece: “The petitioners have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution.”

The “Due Process” and “Equal Protection” tidbits are from the 5th and 14th Amendments (and indeed, most lawsuits that have been filed on behalf of those detained claim that the e-order violates the 5th). Since the founding of the nation, it’s been pretty well established that you can’t just detain someone before they’re convicted of a crime, and you certainly can’t detain someone who hasn’t even been charged with a crime. It took a little while longer for us to get to “Equal Protection”, but it basically means all laws apply to everyone equally, regardless of religion or skin color or whatever makes you different: a black man can’t be charged with a crime if a white man wouldn’t be charged for doing the same thing (we’re still working on this one).

I agree with Judge Donnelly that CLEARLY it is illegal for the government to detain and/or deport people for no reason other than their country of origin. Additionally, her ruling gives me hope that the same application of the law can be used to challenge the constitutionality of disallowing the re-entry of green card holders of specific countries of origin. When you are a legal permanent resident, you have the “right to be protected by all laws of the United States” – I can only imagine this includes the 5th and 14th Amendments. And yes, I know there are a ton of other shitty things housed in the refugee ban e-order (like banning refugees), but it’s going to be a long trip through the courts to dismantle all of the horrific things Trump has done both with this e-order and others. Take this little shred of victory and let it give you the hope and strength to continue the fight.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s