By Mica Rosenberg
February 10, 2017
NEW YORK — A U.S. appeal court’s refusal to reinstate a temporary travel ban on refugees and citizens from seven mainly Muslim countries is a setback for U.S. President Donald Trump’s sweeping immigration agenda, but the government is pressing ahead on multiple legal fronts.
The administration will continue to defend the executive order - both in the Washington case that produced Thursday's ruling and possibly at the Supreme Court - and in more than a dozen additional lawsuits now moving through the U.S. court system.
On Friday, a federal court in Virginia will hold a hearing on a request for a preliminary injunction on aspects of the ban in a case brought by the state of Virginia on behalf of lawful permanent residents detained at Dulles International Airport or denied entry after the ban went into effect.
Some of the cases were filed on behalf of travellers from the countries affected by the ban who were detained at U.S. airports upon arriving in the country.
Others have been filed by states, civil liberties groups and refugee resettlement agencies with companies and non-profit organizations joining in with supporting briefs.
The American Civil Liberties Union filed a suit on behalf of all the affected people who were in transit at the time the ban took effect or who were detained on arrival in the United States, including two Iraqis with connections to the U.S. military.
A district judge in Brooklyn issued a nationwide emergency order, which is still in place, preventing the removal of such travellers.
Federal District Judge Nathaniel Gorton in Boston ruled very differently, upholding the president's order in a case originally brought on behalf of two Iranian permanent residents of the United States who were detained on arriving at the Boston airport.
That decision was in sharp contrast with the ruling by Seattle-based James Robart, who imposed the emergency halt to Trump's order upheld by the appelate court on Thursday.
Trump praised Gorton and blasted Robart on Twitter, saying "Why aren't the lawyers looking at and using the Federal Court decision in Boston, which is at conflict with ridiculous lift ban decision?"
The large number of cases in different courthouses around the country increases the likelihood that the U.S. Supreme Court will ultimately have to decide the fate of the policy.
There are now cases moving through 11 of the 13 U.S. appeals court circuits in the nation. And that does not include many additional habeas petitions filed on behalf of individual people detained at airports after the ban, the majority of which would have been dropped after people were released.
"Currently the front-running case is in Washington and all eyes are on that case, but there a lot of other cases back-stopping that case and ready to step in if the order were to be reinstated," Melissa Keaney, a staff attorney with National Immigration Law Center.
The ACLU is involved in at least a dozen of the cases but says that the litigation has been moving too quickly to coordinate nationally.
"I don't see anyone stopping to move forward with their own cases until there is a definitive resolution," said Lee Gelernt, an ACLU attorney handling the Brooklyn suit. "That would mean either the Supreme Court rules on the issue, or the administration decides to change the executive order or the government decides not to appeal if there is a nationwide ruling against it," Gelernt said.
Given the pace of everything, Jay Holland, an attorney with Joseph Greenwald & Laake who has litigated cases involving civil rights issues, said it was "not so surprising that different lawyers and different judges are cutting their own path."
He expects the issue to move quickly to the Supreme Court, which is still short one justice ahead of the confirmation of Trump's conservative nominee Neil Gorsuch to the bench.
"Even with eight justices, I think the court will be forced to take it up because there will be too many conflicting opinions," said Holland. "There is far too much legal uncertainty that is having immediate impact."
For more information, go to: www.beverlyhillsimmigrationlaw.com