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Legal Battle Over Trump's Immigration Ban Could Play Out in the 9th Cir.

By Casey C. Sullivan, Esq. on January 30, 2017 | Last updated on March 21, 2019

On Friday, Trump issued an executive order barring visitors, immigrants, and refugees from seven majority-Muslim nations from entering the United States. Soon after, lawyers began swarming America's major airports, seeking to file habeas petitions on behalf of those detained or turned away. By Saturday night, a judge in the Eastern District of New York had issued a limited stay. Stays from district courts in California and Washington State soon followed.

Then today, as the chaos surrounding the immigration ban continued to play out, Washington State became the first state to sue the administration over the order -- putting the West Coast and the Ninth Circuit at the center of the legal battle against Trump's immigration ban.

Courts Issue Quick Stays Against EO

Judge Ann M. Donnelly of the E.D.N.Y. was the first judge to stay Trump's immigration order, issuing a lightning-quick decision and order Saturday evening, enjoining the government from removing approved refugees and valid visa holders. Hours later, lawyers from the Northwest Immigrant Rights Project earned a similar stay from Judge Thomas S. Zilly in the Western District of Washington. On Sunday, the Central District of California's Judge Dolly M. Gee ordered not just a stay of deportation, but demanded the transportation back to the United States of a removed Iranian man.

These stays are aimed at maintaining the status quo, but they set the stage for coming litigation. In New York, lawyers for civil liberties and immigrant rights groups argued that the immigration ban violated procedural due process, the tenants of administrative law (Accardi v. Shaughnessy and the Administrative Procedure Act), and the Equal Protection Clause. A non-habeas suit filed in California makes similar claims.

Washington vs. the Other Washington

Meanwhile, Washington State announced this afternoon that it would be suing to overturn the ban. "If successful it would have the effect of invalidating the president's unlawful action nationwide," Washington Attorney General Bob Ferguson said, when announcing the suit.

Though 16 state attorneys general announced over the weekend that the executive order was, in their view, "un-American and unlawful," Washington is the first to actually file suit. The complaint, which was not yet publicly available at writing, says that the executive order is "separating Washington families, harming thousands of Washington residents, damaging Washington's economy, hurting Washington-based companies, and undermining Washington's sovereign interest in remaining a welcoming place for immigrants and refugees," according to a release from the state.

The suit claims the order violates the Equal Protection and Establishment Clauses, along with individual due process rights and the Immigration and Nationality Act. Ferguson is seeking a hearing within two weeks.

While the initial days following the executive order have been frenzied, the coming legal battles will play out much more slowly -- but given litigation in California and Washington, much of it will play out here. Any eventual district court rulings on the order's legality would then be up for review in the Ninth Circuit -- a forum that could be more friendly to the petitioners' claims than, say, the Fifth.

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