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Trump's Executive Order on Immigration: What Does It Mean When a Judge Issues a 'Stay'?

By Christopher Coble, Esq. | Last updated on

At the tail end of an already busy first week in office, President Trump on Friday issued an executive order banning the entry of all foreign refugees into the country along with nationals from seven predominantly Muslim countries, including those with immigrant visas and possibly green card holders as well.

The response -- from protestors and civil rights attorneys -- was immediate, and by Saturday night a federal judge in New York issued a "stay," prohibiting the government from enforcing certain parts of the order. Federal judges in Virginia, Seattle, and Boston did the same, but many are still left in legal limbo while the constitutional crisis sorts itself out.

So what are these stays, whom do they cover, and how long will they remain in effect?

Order and Disorder

Specifically, Trump's executive orders bars admission to the U.S. of all nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days, even those with nonimmigrant or immigrant visas. It also bars all refugees from anywhere in the world for 120 days with an indefinite ban on Syrian refugees. The order may also impose a religious test for entry, as officials will "prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality." All seven countries on the list are majority Muslim.

When the executive order was first issued, stories circulated that officials in the Department of Homeland Security had not been briefed on its specifics, sowing confusion about its enforcement. For instance, many aren't sure whether the order applies to green card holders who are permanent residents, or to some dual nationals of non-U.S. countries. And after the stays were granted, there are stories of immigration officials refusing to abide by the order or allow detained travelers access to legal counsel. And when acting U.S. Attorney General Sally Yates on Monday asserted the Justice Department would not defend the order against court challenges, she was promptly fired.

Should I Stay or Should I Go?

So where does all this confusion leave us right now? Judges in Boston, Brooklyn, Seattle, and Virginia all ruled in favor of plaintiffs suing the government over the order, but to varying degrees. The judges' orders are referred to as "stays": a kind of preliminary injunction which only last about a week or two, and will expire if not extended. They also only apply to travelers who actually made it to U.S. soil, and don't apply to those still overseas.

While all the stays prohibit Customs and Border Protection (CBP) from removing anyone who has arrived in or was en route to the U.S., they are not all identical:

  • The judge in Washington barred the deportation of two men;
  • The judge in Virginia ordered that lawyers be granted access to clients who had lawful permanent resident status; and
  • The judge in Massachusetts ordered CBP to apply pre-existing law, which may indicate the need to release lawful permanent residents or detainees with valid visas.

The New York stay is the only one that applies nationwide, but does not allow detainees to enter the country and does not address the constitutionality of the executive order itself. "This ruling preserves the status quo and ensures that people who have been granted permission to be in this country are not illegally removed off U.S. soil," according the ACLU's Lee Gelernt.

Additionally, head of the Department of Homeland Security John Kelly attempted to clarify parts of the immigration order, saying that green card holders would not be barred from re-entry to the U.S. "absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare."

Stay Today, Gone Tomorrow?

More cases are likely to be filed regarding the travel and immigration ban, and the existing cases are yet to be fully litigated. And while the president generally has broad legal authority when it comes to immigration matters, that authority does have its limits: an Obama executive order on immigration was defeated in federal courts in 2015, a ruling left in place by a deadlocked Supreme Court last year.

So the legal battle will rage on, while the lives of refugees, immigrants, and lawful residents hang in the balance.

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