Nationwide Injunction (Stay, really) issued in Darweesh v. Trump

January 28th, 2017

Shortly after 9 p.m. ET, Judge Ann Donnelly (EDNY) granted the ACLU’s Emergency Motion for Stay of Removal on behalf of a number of people who arrived at U.S. airports, pursuant to lawful visas or refugee applications, but were not admitted entry.

The order states that petitioners have shown a “strong likelihood of success” and that their removal would violate the Due Process and Equal Protection clause, and cause irreparable injury. (Note, this order only applies to those already in the country, and thus protected by the Constitution; the same analysis does not apply to those outside the United States).

As a result, the court issues what is effectively a nationwide stay, enjoining all of the named respondents, including President Trump, Secretary Kelly, and the acting director of the CBP, from the “commission of further acts and misconduct  in violation of the Constitution as described in the Emergency Motion for Stay of Removal.”

The critical part is what they are enjoined from doing:

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States.

Further, the court orders the Marshal for the Eastern District of New York to “take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.”

This opinion, though, only affects the small number of people who were in-transit when the order was issued, and arrived after it went into effect. The Constitution attaches to their status, and they cannot be held in violation of the Due Process Clause. The same analysis does not apply to aliens outside the United States.

Larry Tribe and I agree on the relief portion of the analysis, at least.

In any event, faster than you can say Trump, immigration advocates have switched positions, and are now supporting this nationwide injunction. It was appropriate in Judge Hanen’s court, and is appropriate in Judge Donnely’s court.

At this moment, somewhere in Washington, D.C., Noel Francisco is deciding whether to seek a stay from SCOTUS, as the 2nd Circuit is very unlikely to take any action here.

Update: See this thread for further thoughts:

Update 2: I downloaded a PDF of the order from Pacer. You can download it here.

Update: A Judge in EDVA granted a TRO forbidding the removal of petitioners stuck at Dulles International Airport, and requiring that they be given access to counsel.