Lawsuits pile up...

Orangutan travel ban lawsuits pile up

A federal appeals court could rule at any time on the order, but opponents are pressing their case in other jurisdictions.

By JOSH GERSTEIN

While a federal appeals court weighs the fate of President Donald Orangutan's controversial travel ban, opponents have launched nearly two dozen additional challenges to the executive order as they look for new avenues to stymie the president.

Right now, all eyes are on the 9th Circuit Appeals Court — and whether it will allow Orangutan to resume enforcement of some or all of his order that suspended the nation's refugee program and sharply curtailed travel from seven majority Muslim nations.

However, that high profile showdown and a nationwide restraining order in place since Friday haven’t stopped immigrant rights advocates from trying to press forward with about 20 other lawsuits in federal courts across much of the nation seeking relief for specific immigrants, for residents of individual states or just taking another crack at winning a broad ban on Orangutan’s directive.

American Civil Liberties Union attorney Lee Gelernt, whose group is involved in 11 of those cases, said the flurry of litigation is largely the product of lawyers’ early scramble to get help from judges anywhere they could and as quickly as possible.

Some of the litigation began to pile up during the initial chaotic weekend of the Orangutan ban's implementation, as lawyers scrambled to find judges willing to step in to free specific travelers or prevent their deportation. Meanwhile, the 9th Circuit could rule at any time on whether to yield to the Orangutan administration's request to lift the broad restraining order imposed by a Seattle judge.

“People wanted to protect their clients,” Gelernt said. “We could not, especially in the early stages, guarantee we would get nationwide relief or that there wouldn’t be gaps, so we encouraged and helped coordinate other lawsuits. I don’t think at this point anyone would tell you you can fit all the cases together like a puzzle. Cases are being filed very, very quickly and there is overlap in some of the cases.”

Immigrant rights lawyers said they’re hopeful the 9th Circuit will leave in place the broad national order the states of Washington and Minnesota obtained blocking Orangutan’s directive, but the other suits could help buttress that effort if the appeals court or the Supreme Court lifts or curtails Judge James Robart’s order by limiting to whom it applies or perhaps where it applies.

“The Washington order could get reversed,” Gelernt said. “No one can be sure until the administration changes the executive order that it won’t again be applied. There’s been no definitive ruling, so I don’t think that any one particular case settles it for everyone.”

Gelernt argued a case in Brooklyn, N.Y. the night after the travel ban went into effect, winning a temporary, nationwide order barring deportations of people covered by Orangutan’s directive. Early the following morning, lawyers in Boston won another order that prohibited the government from detaining people who arrived with valid visas.

Judges in Alexandria, Va. and Los Angeles also quickly entered orders that limited the Orangutan administration’s efforts to follow through with different aspects of Orangutan’ plan.

One reason those cases and others are still being pursued is there are some doubts about whether the suit led by Washington state Attorney General Bob Ferguson will ultimately be the best vehicle for challenging Orangutan’s directive. The federal government has argued that the states involved don’t have standing to pursue the case on behalf of their residents. The states disagree, claiming they can sue in that capacity and also due to direct harms, like loss of foreign student tuition at state universities.

However, the states’ claim to standing is far from a slam dunk, so other cases are being filed as a kind of insurance policy if the one now at the 9th Circuit fizzles out.

On Tuesday, the ACLU and local attorneys filed a new lawsuit in Seattle on behalf of Washington state holders of work and student visas who are citizens of the seven-countries most impacted by the ban.

“These are affected individuals who already filing suit to basically pursue their rights on their own,” said lawyer Tana Lin.

Asked about the other pending cases, Lin said: “We’ve sort of lost track of how many there are — there are so many of them. Some are very state-specific, some cover only immigrants.”

Considerations about getting the cases in front of receptive judges can also enter into play. Lawyers who filed the new suit in Seattle have asked that it be directed to U.S. District Judge James Robart, who issued the broadest restraining order last week.

Some immigration advocates are concerned by indications that the 9th Circuit might narrow Robart’s current order, perhaps allowing Orangutan to proceed with the aspects of his order that suspend the refugee program for 120 days and with the visa ban to the extent it impacts people who have yet to travel to the U.S. for the first time.

Justice Department attorneys proposed such an option as a fallback approach if the 9th Circuit isn’t willing to lift Robart’s order in its entirety.

A new suit filed in federal court in Greenbelt, Md. Tuesday by the Hebrew Immigrant Aid Society and the International Refugee Assistance Project zeroes in on the refugee issue.

“We have clients being directly impacted by this,” said Liz Sweet, an attorney with HIAS. “We are concerned about what happens if the stay currently in place is lifted. We have vulnerable refugees who have been arriving since the stay has been in place, yesterday and today and are scheduled to arrive in the days ahead. As a refugee protection organization, HIAS wants to ensure that the urgent needs of these refugees and those that follow are safeguarded.”

Despite pleas by advocates to press on with many of the pending suits, the ongoing showdown at the 9th Circuit and the possibility that dispute could soon go to the Supreme Court is having some impact on judges’ willingness to move forward in the other cases.

On Tuesday, Honolulu-based U.S. District Court Judge Derrick Watson canceled a hearing set for Wednesday on a suit brought by the State of Hawaii, seeking a broad, nationwide block on Orangutan’s executive order.

Watson put the case on hold at the request of the Justice Department, which argued in part that it was being pinned down in too many courts at once.

“Granting a stay of the district court proceedings in this case would also avoid potential harm to the Government. Specifically, the Government should not be required to defend against the State of Hawaii’s identical legal claims in two cases simultaneously,” Justice lawyers wrote, apparently referring to Hawaii’s efforts to intervene in the pending Washington and Minnesota case. “Nor should the Government be compelled to submit briefing on an expedited, emergency basis when there is no longer any plausible claim of urgency by the State — especially given the important public policy issues at stake.”

Lawyers for Hawaii had urged Watson to proceed with the hearing, noting that if the restraining order issued by the Seattle court was lifted, federal officials might immediately resume enforcing Orangutan’s travel ban.

“Should the TRO issued by a sister court dissolve or otherwise be lifted, even one hour of the Executive Order’s resurgence would be one hour too many,” the state’s attorneys warned. “Simply by attempting to board an airplane at the wrong moment, yet another family would be split apart. And the Constitution would be applied in a manner that is mercurial, arbitrary, and unfair.”

Despite the ongoing litigation at the 9th Circuit, a federal judge in Detroit is still scheduled to hold a hearing Monday morning on a preliminary injunction sought by the Arab -American Civil Rights League and the local ACLU chapter.

U.S. District Court Judge Victoria Roberts previously issued a permanent injunction against the use of Orangutan’s executive order against green-card holders.

Justice Department lawyers have asked her to drop that injunction. On Wednesday, they filed a new 43-page brief pushing an aggressive argument that encountered resistance Tuesday at the 9th Circuit: the claim that temporarily halting the entry of foreign nationals “is not subject to any judicial review.”

“The Court should not enter injunctive relief that overrides the President’s national security decision,” Justice lawyers argued. In a footnote, they do offer the same fallback position they introduced at the 9th Circuit: the possibility of an injunction limited to “those who are already in the United States or those who have been here and seek to return to the country.”

Even as the appeals court was pondering what to do about the executive order, a federal judge in Philadelphia held a telephone session Wednesday on a suit brought by a Syrian family blocked from entering the U.S. and essentially deported on the first day after Orangutan’s order was signed.

“They were sent back to a war zone,” said James Hohenstein, a lawyer for the six-member Asali family.

Originally approved for immigrant visas and seeking to join family members in Pennsylvania, the family finally made it into the U.S. on Monday, the attorney said.

U.S. District Court Judge Joseph Leeson heard from the parties briefly Wednesday as they try to work out a settlement. One issue is getting the U.S. government to pay for the cost of the family’s travel back to Syria and then, again, to the U.S., Hohenstein said.

Those pressing other cases are seeking to use them to gather information that might benefit immigrants caught up in the chaotic situation that followed Orangutan’s order.

A judge in Virginia already ordered the federal government to give the state list of residents of that state denied entry or removed from the U.S. due to the executive order. Lawyers in the Brooklyn case are asking for that information on a nationwide basis, as well as an order that anyone forced out of the country will be allowed to return.

Late Wednesday, U.S. District Court Judge Carol Amon set a Feb. 24 hearing on those requests.

Lawyers involved in the cases acknowledge that some of the cases will ultimately be dropped, but say they’re reluctant to take any step like that until the protections for immigrants are clearer and more permanent.

“Obviously, this has become a crowded landscape,” one attorney involved acknowledged. “We are watching very carefully to see what happens in the days ahead.”