Professor Middleton Explains the Legal Issues Involved in the Executive Order on Immigration

February 8, 2017

Professor Richard Middleton teaches Immigration Law at SLU LAW.  We asked him to weigh in on the recent executive orders and subsequent federal court stay on immigration. He is a practicing attorney who also teaches political science at University of Missouri – St. Louis.

What are the major implications of this immigration ban?

There are many implications of this immigration ban namely the interruption of families being reunited; the undermining of the ability of refugees, who have already been vetted, to be resettled in the U.S.; casting the implementation of our nation’s immigration policies into disarray; and drawing the federal government and states into expensive and lengthy litigation.

What kind of legal issues will immigrants in St. Louis face?  

 If the executive order is allowed to stand, and depending upon its substantive coverage, some persons will potentially be restricted in their ability to depart the U.S. and reenter with little-to-no legal obstacles. Some persons may be banned from reentering the U.S. altogether. In addition, some persons may depart the U.S., and while abroad, their country of nationality could be added to the list of affected countries. Those persons would have left the U.S., ostensibly under the shield of law granting them the right to reenter the U.S., only to then be stuck outside the U.S. with no legal recourse. Some persons may face hostilities from public actors who work in various bureaucratic positions. These governmental actors are imbued with power to make decisions that affect the lives of immigrants. I suspect that some bureaucrats will feel empowered and emboldened to discriminate against persons who are, or who are perceived to be, non-citizens. The reason why is because these actors may sense such discrimination is endorsed by the current presidential administration as well as by those who support this type of immigration policy. Consequentially, this could lead to various civil rights violations.

 What happens now after the Federal Courts emergency stay?  

 The matter is currently on appeal before the 9th Circuit Court of Appeals.  Oral arguments were heard on Feb. 7, 2017, and the court is expected to issue its opinion within the week. The losing party is likely to appeal the decision to the U.S. Supreme Court.

  What kind of rights are in limbo?

 Certain rights under federal immigration law – for example:

1.       Under INA 101(a)(13)(C), the right of lawful permanent residents to reenter the United States after a trip abroad and not be deemed to be seeking admission,

2.       Under INA 202(a)(1)(A), the right not to be discriminated against in the issuance of an immigrant visa on account of a person’s race, nationality, place of birth or place of residence,

3.       The right to not be subjected to an unreasonable seizure (detention) under the 4th Amendment to the U.S. Constitution

 What kinds of issues should lawyers pay particular attention to in this climate?

 First and foremost, the direct consequences that arise from the implementation of the executive order – a person may be denied entry into the U.S. I recommend practitioners conduct an analysis of their entire caseload to identify clients who are nationals of any of the affected countries and counsel them on the risks involved should the client depart the U.S. and seek to reenter – even if the client is going to depart the U.S. for something as innocuous as a short vacation. The client who is affected by this order may be subjected to heavy-handed interrogations at a port-of-entry. This can be quite frightening for a person.

There are also some collateral consequences. For example, I have a client who is a Lawful Permanent Resident (green card holder) from Iraq. She recently had a naturalization interview. I had to counsel her that should she complete the process of becoming a U.S. citizen, she could potentially be barred from going back to her home country. If Iraq passed a reciprocal measure, as Iran did, banning U.S. citizens from entering the country, as an American citizen, she may be barred from entering Iraq. That means not being able to visit her family, friends, and conduct any business (e.g., checking up on any property she owned in Iraq).   

We may also see an increase in discrimination in policy domains that touch upon and affect the lives of immigrants – for example, obtaining a driver’s license, enrolling children into school . . . there may be more hostile encounters with law enforcement and we may see a reticence by immigrants to avail themselves of the courts out of a mistrust of the judicial system.

 

 Professor Middleton is in the early stages of publication for his book, "Unequal Protection of the Law: The Rights of Citizens and Non-Citizens in Comparative Perspective" where he will address the legal rights of persons from a comparative, global perspective.

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