On Jan. 27, President Donald Trump issued an executive order imposing temporary limitations on immigration to the United States. Trump suspended visas for people from seven predominantly Muslim countries, and generally suspended applications for refugee status.
Washington State Judge James Robart overturned the executive order on Friday, Feb. 3, and his ruling was made effective immediately. Customs and Border Protection began reinstating visas to the approximately 60,000 people affected by the travel ban.
The U.S. Justice Department filed a formal notice of app-eal Saturday afternoon, on President Trump’s behalf, seeking to overturn Robart’s order.
No matter what the decision, the case is expected to go to the U.S. Supreme Court.
Trump’s executive order made an exception for individuals of minority religions who face “religion-based persecution” in predominantly Muslim countries — a provision widely understood to mean that Christian refugees would be welcome.
Some lawyers in the Detroit area who work to protect the rights of asylum seekers and other immigrants responded to the executive order.
Bradley Maze, a lawyer at George P. Mann and Associates in Farmington Hills, and Ellie Mosko, an immigration attorney in solo practice, went to the airport to stand ready to assist any immigrants who might need legal assistance. Other local lawyers showed up at border crossings with Canada.
The ACLU challenged the executive order in courts across the nation. Kary Moss, executive director of the ACLU of Michigan, expressed optimism about these challenges.
“The executive order violates the First Amendment, which prohibits the government from preferring or disfavoring any religion, and the 14th Amendment, which guarantees that everyone is entitled to equal protection under the law,” she says.
Other attorneys were more cautious. Mosko says, “The executive order raises possible serious constitutional violations in both content and implementation. Ultimately, many of these questions are likely to go to the Supreme Court.”
Peter Antone of the immigration law firm of Antone, Casagrande & Adwers in Farmington Hills, thinks the order may withstand judicial scrutiny.
“Our constitutional scheme,” he says, “gives the president broad powers when it comes to citing national security as a basis for regulating the admission of foreign nationals to this country.”
Commenting on the implicit preference for Christian immigrants, Jeffrey Pitt of Antone, Casagrande and Adwers, says, “We recognize the targeted persecution of Christians in certain countries. However, the prioritizing of legitimate refugees based on a religious test is most concerning.”
Mosko says, “Christians are not the only minority. How will this order apply to minority Sunni, Shia and Kurds where they are minorities who fear persecution? Will they be considered religious minorities or will they be lumped into the larger religious category of ‘Muslim’? Also, what about social groups fearing persecution, such as LGBT people? Or people who fear persecution for race, nationality or for political opinions?
“We should not discriminate,” she says.
Even so, Peter Antone sees the situation this way: “Because the president has the right to limit the number of refuges admitted annually, he probably has the right to designate which groups of refugees are the most vulnerable and thus prioritized for admission. Because refugees are neither U.S. citizens nor green card holders, and because they are not physically on U.S. land, it is unlikely they will be considered to have any U.S. constitutional protection.”
The main hope these refugees have, Antone says, lies in international agreements. “As for refugees who have already arrived, returning them to their country of origin, assuming they could be subject to torture, might violate the Convention Against Torture and the United Nations Convention Relating to the Status of Refugees, treaties that the United States has signed.”
Moral, Practical Effects
Excluding refugees raises moral problems, says attorney Bradley Maze. The executive order is “antithetical to our values.” As a “by-product” of the order, “immigration officials have just stopped processing the applications from deserving Syrians and Yemenis. This is very troubling.”
Antone agrees: “What is legal to do is not always the right thing to do.”
The order may have negative practical consequences as well.
“This act hits health care in America,” Maze says. “Hospitals in America draw huge numbers of workers from foreign countries.”
And Mosko says, “The airline industry and the tourism industry in general have already started to suffer. People who are here are being told not to travel, and people who are abroad may not be able to obtain visas or may have their visas revoked.
“Even people from other countries, not listed in the executive order, are discouraged from coming here because a country could get added to this list at any time.”
Attorneys also question whether the executive order will actually protect Americans. Maze thinks it can endanger us. Because it “fuels the jihadi narrative of a clash of civilizations, the executive order will be used by our enemies to gather recruits,” he says.
Maze also sees other problems: “From a humanitarian and a foreign point of view, the executive order is ‘nonsensical.’ It already has negative effects on how our country views immigrants, influencing politicians, law enforcement professionals and ordinary citizens.”
Attorneys who specialize in civil rights and immigration often cite their family history as an influence.
ACLU Director Kary Moss, for example, says, “My grandparents were immigrants, and I grew up here in Michigan amidst a culture that valued tikkun olam.”
Bradley Maze came to America as a young boy when “his parents, physicians in South Africa, did not want to raise their children in that atmosphere” under apartheid.
Peter Antone says, “I happen to be an immigrant and consider fleeing Saddam Hussein’s regime to the U.S. the most important decision of my life. In many ways, my real life with liberty started when I arrived in the United States and, therefore, I know what it is like for those fleeing difficult situations.”