I've got a good feeling about this suit. The Supreme Court precedent on this is quite clear: permanent residents have a right to due process before they are excluded from entering the United States:
> This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. As we explained in Johnson v. Eisentrager, 339 U. S. 763, 770 (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation, and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation.
Landon v. Plasencia, 459 U.S. 21, 33 (1982) (citations omitted).
That applies even after leaving and returning to the country:
> Any doubts that Chew recognized constitutional rights in the resident alien returning from a brief trip abroad were dispelled by Rosenberg v. Fleuti, where we described Chew as holding "that the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him." 374 U.S., at 460.
The wrongfulness of excluding permanent residents at the border without individualized process is so plain that the White House ultimately backed away from that interpretation of the order last night. But in the meantime, CBP violated the Constitutional rights of a number of green card holders.
Also, the facts are bad for the government: https://www.crowdjustice.org/case/dullesdetainees ("We filed originally on the evening of January 28th, asking Judge Brinkema to issue a Temporary Restraining Order to stop deportations from Dulles and to ensure those detained were provided lawyers. That order was granted almost immediately, but Customs and Border Protection officers at Dulles refused to comply.").
It is very possible that even individual CBP officers will be held liable for those violations. Ordinarily, officers are protected by qualified immunity for actions taken under the color of law. But qualified immunity does not apply where the right was not "clearly established." Usually, that is a big hurdle in these sorts of lawsuits, but here there is squarely-applicable Supreme Court precedent.
Due process may still hold true (idk, inal, sounds about right) but there are a number of long-standing regulations governing re-entry. Let's not overlook the fact that there are regulations in the US regarding re-entry for green card holders which sound very reasonable to me - especially when compared to immigration law in other countries.
* have abandoned or relinquished your status as a lawful permanent resident
* have been absent from the U.S. for a continuous period of over 180 days
* engaged in illegal activity after leaving the U.S.
* left the U.S. while in removal or extradition proceedings
* committed one of the crimes named in § 212(a)(2) of the I.N.A. (such as one crime of moral turpitude (CMT), a drug or trafficking crime, multiple crimes, prostitution, money laundering, security violations, and so on), unless later granted relief under Section 212(h) or 240A(a)...
* are attempting to enter at a time or place other than as designated by immigration officers.
* if you have any criminal violation on your record, you should not leave the U.S. without consulting with an experienced immigration attorney first.
* it's a crime for immigrants not to submit immediate notifications to U.S. Citizenship and Immigration Services (USCIS) of their changes of address.
The one that confuses me a bit is "are attempting to enter at a time or place other than as designated by immigration officers".
Now, the issue of allowing re-entry from a very limited list of countries that are hotbeds of religious terrorism when the vetting process is suspect. That's the focus here.
I had no idea such a precedent existed- thank you for sharing this. I have been pretty pessimistic regarding the possibilities for success with these suits, but after reading these precedents, the case becomes much better.
just in general it would be interesting to see a collection of law suits that the billionaire president lost. probably not much of this public (and most processes might have ended with some kind of settlements)
The article doesn't make this clear (the page below has more info) but on the way from Yemen to the US, they had a layover in Ethiopia, which is where the US sent them.
Readit News
> This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. As we explained in Johnson v. Eisentrager, 339 U. S. 763, 770 (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation, and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation.
Landon v. Plasencia, 459 U.S. 21, 33 (1982) (citations omitted).
That applies even after leaving and returning to the country:
> Any doubts that Chew recognized constitutional rights in the resident alien returning from a brief trip abroad were dispelled by Rosenberg v. Fleuti, where we described Chew as holding "that the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him." 374 U.S., at 460.
The wrongfulness of excluding permanent residents at the border without individualized process is so plain that the White House ultimately backed away from that interpretation of the order last night. But in the meantime, CBP violated the Constitutional rights of a number of green card holders.
Also, the facts are bad for the government: https://www.crowdjustice.org/case/dullesdetainees ("We filed originally on the evening of January 28th, asking Judge Brinkema to issue a Temporary Restraining Order to stop deportations from Dulles and to ensure those detained were provided lawyers. That order was granted almost immediately, but Customs and Border Protection officers at Dulles refused to comply.").
It is very possible that even individual CBP officers will be held liable for those violations. Ordinarily, officers are protected by qualified immunity for actions taken under the color of law. But qualified immunity does not apply where the right was not "clearly established." Usually, that is a big hurdle in these sorts of lawsuits, but here there is squarely-applicable Supreme Court precedent.
* have abandoned or relinquished your status as a lawful permanent resident
* have been absent from the U.S. for a continuous period of over 180 days
* engaged in illegal activity after leaving the U.S.
* left the U.S. while in removal or extradition proceedings
* committed one of the crimes named in § 212(a)(2) of the I.N.A. (such as one crime of moral turpitude (CMT), a drug or trafficking crime, multiple crimes, prostitution, money laundering, security violations, and so on), unless later granted relief under Section 212(h) or 240A(a)...
* are attempting to enter at a time or place other than as designated by immigration officers.
* if you have any criminal violation on your record, you should not leave the U.S. without consulting with an experienced immigration attorney first.
* it's a crime for immigrants not to submit immediate notifications to U.S. Citizenship and Immigration Services (USCIS) of their changes of address.
The one that confuses me a bit is "are attempting to enter at a time or place other than as designated by immigration officers".
Now, the issue of allowing re-entry from a very limited list of countries that are hotbeds of religious terrorism when the vetting process is suspect. That's the focus here.
http://mimesislaw.com/fault-lines/trump-exceeds-his-plenary-...
Happy to answer any questions! And can pass on specific questions about the case to LAJC too.
https://www.crowdjustice.org/case/dullesdetainees/