On Saturday, January 28, US federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency “stay” that temporarily blocks the government from sending people out of the country after they have landed at a U.S. airport with valid visas including green card holders. Several other federal courts – in Virginia, Boston, California – have heard similar cases and issued similar stays. On Friday, February 3, the federal court in Boston lifted a previously granted stay, and until the later action on the West Coast discussed below, this appeared to shut the door on those arriving at Boston’s Logan Airport.
On the afternoon of Friday, February 3 in Seattle, Washington (evening East coast time), US federal judge James L. Robart issued a temporary restraining order (TRO) which blocks – nationwide – key provisions of the EO, namely:
- The visa and entry ban against nationals of the designated countries at “all US borders and ports of entry”;
- The EO’s prioritization or preference for refugee claims from certain religious minorities;
- The halt on refugee admissions, including those from Syria.
- The EO’s exception for the admission of refugees on a case-by-case basis to the “extent that [this exception] purports to prioritize claims of certain religious minorities.”
The federal court in Seattle will hear from the plaintiffs and the government defendants on Monday in order to set a schedule for future hearings on the substance of the lawsuit which was brought by two states – Washington and Minnesota. These two states filed a motion asking for immediate judicial action against the harm already occurring to their residents because of the EO, and to block the EO’s most harmful provisions while they pursue a more permanent injunction of the implementation of these sections of the EO. Specifically noted in the order were the claimed negative consequences on the states’ residents’ in the areas of “employment, education, business, family relations, and freedom to travel.”
Notably, a federal court can only issue a TRO where the plaintiffs – in this case Washington and Minnesota – can show that they are likely to succeed on the merits of their case; that they are likely to suffer irreparable harm if the TRO is not granted; where the balance of equities tips in their favor; and where the court finds that an injunction or TRO is in the “public interest.” The TRO effectively allows for the status quo – or no change in the government’s actions – until the court has an opportunity to hear and make a decision on the actual case. As the EO is otherwise immediate in its impact, the TRO will effectively “pause” the situation, allowing for the entry of otherwise-affected individuals until the court can fully consider all the arguments by the plaintiffs and the government-defendants.
Interestingly, Judge Robart took the opportunity to affirm that the court is but one of three equal branches of government, whose role is to “ensur[e] that the actions taken by the other two branches comport with our country’s laws and more importantly, our Constitution.” The order concludes with the following explanation: “the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of the government, and the country’s citizens and residents …[t]he court concludes that … it must intervene to fulfill its constitutional role in our tripartite government.”
This latest judicial action is yet but another indication of the complexity and seriousness of the situation, while also a vivid illustration of the careful and necessary balancing effect of the three branches of government on each other and on the country as a whole.
As these legal challenges work their way through various federal courts, affected individuals should consult with an immigration attorney for the latest information and guidance on how these court actions might apply in a particular case.