The appeals court that upheld a block on President Trump’s extreme vetting executive order Thursday said part of the reason it was likely illegal was that he curtailed the rights of illegal immigrants.
The 9th U.S. Circuit Court of Appeals said “aliens who are in the United States unlawfully … have due process rights” to travel or to have their relatives potentially come see them — rights that Mr. Trump’s new executive order may circumscribe.
That part of the ruling struck critics as breaking new ground.
Rep. Trey Gowdy, South Carolina Republican, said the ruling would even extend rights to illegal immigrants “who have committed and been convicted of certain crimes while in the U.S.”
The three-judge panel said a 2001 Supreme Court ruling, known as the Zadvydas case, established that illegal immigrants had the right to due process under the law before their other rights could be violated. In that case, the court ruled illegal immigrants couldn’t be held indefinitely, and must be released after some time if it was clear they weren’t going to be able to be deported.
That ruling has led to tens of thousands of convicted criminals being released into communities because their home countries won’t take them back. Some 30,000 criminals from Cuba alone have been released because that nation refuses to take them, even despite the latest thawing of relations overseen by President Obama.
Mr. Gowdy said the Supreme Court will have to revisit all of those issues as the Trump case makes its way through the courts.
“Legal permanent residents, non-citizens with current valid visas, non-citizens with expired visas (which were once valid), aliens with no legal standing, aliens who have committed a crime but have not yet been deported and aliens who are not even present in the United States but seek to come are just a few of the categories the Supreme Court will need to determine what process is due, if any,” he said in a statement.
Mr. Trump’s Jan. 27 executive order halted for 90 days visitors from Iran, Iraq, Yemen, Somalia, Syria, Sudan and Libya. It also paused the U.S. refugee program for 120 days. Both delays were intended to give the government a chance to improve vetting procedures, officials said.
After the order was issued, the administration issued several clarifications saying that legal permanent residents and Iraqi visa holders who aided the U.S. war effort in that country weren’t supposed to be part of the pause.
The appeals court panel said it was skeptical the administration could rewrite the order through subsequent guidance.
But the court also said even if it accept the government’s changes and ignore green card holders and others who have been in the U.S. legally, that still left illegal immigrants on the outside, with their rights violated.
“That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well,” the court ruled. “That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States.”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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