CA9 Upholds TRO, Maintains Nationwide Halt on Travel/Refugee Ban
The Ninth Court of Appeals upheld the temporary restraining order put forth by the state of Washington and the state of Minnesota, lifting the nationwide travel ban until the matter goes through the courts. The court, describing their reason for this decision, cited the serious and perpetual harm it causes to significant numbers of people, which is inherently detrimental to the states, and is caused by the executive order which the states have a high probability of providing evidence supporting its illegality and unconstitutionality.
Specific to the direct detriment the states are subjected to by the executive order is the state funded academic institutions the students of which are prohibited from travel. This prevention affects both directions of transportation. Not only are students and faculty wishing to attend the state universities from outside the country disallowed to do so, but students and faculty currently in the United States attempting to travel for academic collaboration, research, or personal reasons are forbidden as well. Apart from the emotional consequences, The University of Washington also asserts unfair monetary consequences resulting from the order. Specifically, they reference two medicine and science interns the visas for whom the university has already financially committed to, and for whom the permission of entry has been denied. Similarly, the university was in the process of sponsoring three prospective employees from countries restricted by the order, who were scheduled to arrive in February of this year, but who have been unable to do so. Similar circumstances have come unto faculty and students at Minnesota’s public higher education institutions.
The government’s defense centers around the impossibility of review for an executive order. To this end, it claims that even if constitutional rights and protections are compromised in the process, that Presidential immigration policy is ineligible for review, especially when motivated by national security. It claims that an order put forth by the executive branch that is reviewed by the judicial branch is a breach of separation of powers.
The judge affirmed his disagreement with this perspective. Initially stating the claim as lacking precedence, the judge went on to assert the opposite viewpoint, professing the purpose of the courts to review constitutionality in different branches of government, and executive orders are not exempt from such review. Further emphasis was placed upon this authority of review when a breach of constitutional rights is in question.
The judge accordingly found no viable evidence to lift the temporary restraining order, and the government’s emergency motion for stay was denied.
For more information, view the full case.
***
CA7 Upholds Denial of Asylum to Ethiopian Petitioner Found to Have Knowingly Supported the OLF Terrorist Organization
The Seventh Circuit Court of Appeals denied the petition for review of final order of removal for a 61 year old Ethiopian woman based on her former membership with and contributions provided to a tier III terrorist organization. Her petition to review the Board of Immigration Appeals (BIA) decision to deny the reopening of her case was also denied. Though the court acknowledged the possibility of persecution upon deportation to Ethiopia, it was decided that her attendance of meetings, coupled with her conscious provision of aid she supplied to the terrorist organization, constituted her membership with the organization, which eliminates her from consideration for asylum in the United States.
The petitioner, who asked to be referred to by her initials SAB for personal security reasons, came to the United States in 2004 on a visitor’s visa which was set to expire in December of the same year. She filed for asylum following this expiration and alternatively for withholding of removal. Having ruled her claims as lacking credibility, the Department of Homeland Security charged her as being “removable” for her illegally remaining inside the country after the expiration of her visa. She accepted the removability ruling, and was then set to be reinstated to the country of Ethiopia upon release. It was at this time she renewed her application for asylum on the grounds that she felt fear for her safety upon return to Ethiopia, and more specifically felt a viable threat that she would be tortured by the government upon her return due to her admitted prior involvement in the terrorist organization Ormo Liberation Front (OLO).
SAB joined the organization three years prior to her arrival in the United States, in 2001, and attended gathered meetings and made financial contributions during this time. She admitted that she heard in 2002 on the news that the organization was responsible for killings in Ethiopia, but questioned the validity of the information due to the government’s ownership of the network creating bias in the reporting. She also stated that her husband went missing, never to be found, around this time, and that she was unlawfully imprisoned without trial or sentence. During her sentence, she alleges that she was tortured.
Evidence was put before the court affirming the identification of OLO as a terrorist organization from Jane’s Information Group, a British publication specializing in warfare, national security, and terrorism. This publication identified the OLO as, “the most robust armed group in Ethiopia in the late 1990s.” Furthering evidence suggesting OLO as being a terrorist organization, the publication asserted that the group carried out a “low level guerrilla campaign against the Ethiopian security forces.” The defense provided testimony from a history professor at Valparaiso University who specialized in Ethiopian politics. While he acknowledged that violent acts including bombings have been attributed to OLO, he questions whether the responsibility for these events was misappropriated. He additionally questioned the reporting of Jane’s Information Group, going so far as to describe it as “biased, market driven, and shoddily verified.” All of his testimony was without tangible evidence. All of this resulted in the immigration judge classifying the group as a tier III terrorist organization.
The judge, therefore, determined that SAB knowingly contributed to an established terrorist organization, of which she was a member, which bars her from any grant of asylum. The judge noted, however, that due to the likelihood of SAB being tortured upon her return to Ethiopia, removal proceedings could not be executed.
For more information, view the full case.
***
CA5 Upholds Denial of Naturalization Application Where USCIS Found Appellant Did Not Receive a Full and Unconditional Executive Pardon
A Circuit Court of Appeals affirmed the denial of naturalization application on the grounds that the applicant did not meet the qualification of demonstrating good moral character, due to an aggravated felony conviction. Hang Thuy Nguyen believed that the automatic first-offense pardon which she received for the offense constituted a pardon which would nullify the aggravated felony conviction from her record. United States Citizenship and Immigration Services (USCIS) concluded that this was an incorrect interpretation, stating that the first-offense pardon does not constitute a “full and unconditional executive pardon” thus maintaining her guilt in the aggravated felony charge, permanently disqualifying her from demonstrating god moral character, eliminating her from qualification for naturalization. The applicant appealed this decision.
Upon review, the Court of Appeals found the original ruling to be sound. Nguyen was within the 5-year waiting period as a lawful permanent resident, during which she was required to demonstrate good moral character. One disqualification for this requirement is the conviction of the individual for an aggravated felony, the exception to which could potentially be if the offender receives a “full and unconditional executive pardon.” While Nguyen was pardoned for her aggravated felony, the state of Louisiana, in which she resided and was charged with her crime, does differentiate between manners of pardon in its constitution. A discretionary pardon or commutation is issued by the Governor of the state, and reinstates a status of innocence to the individual. An automatic first-offense pardon is issued upon completion of sentence, without review from the Governor or Board of Pardons, and assumes no restoration to a status of innocence.
Since Nguyen received an automatic first-offense pardon, which does not reinstate a status of innocence, she is still guilty of her aggravated felony, which removes the possibility for her to prove her good moral standing. Disqualification from good moral standing automatically bars individuals from naturalization, so the court reaffirmed the original ruling of USCIS.
For more information, view the full case.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.