President Donald Trump signed an executive action at the Pentagon in January, tightening the United States' refugee and visa policies. McClatchy C-SPAN
President Donald Trump signed an executive action at the Pentagon in January, tightening the United States' refugee and visa policies. McClatchy C-SPAN

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Yemeni immigrants prevail in lawsuit challenging Trump’s executive order

By Andy Furillo

afurillo@sacbee.com

February 01, 2017 08:48 AM

In another legal ruling against President Donald Trump’s executive order suspending immigration from seven predominantly Muslim countries, a federal judge in Los Angeles signed an order Tuesday night blocking the government from denying entry to anyone from the affected countries who has a valid visa.

U.S. District Judge Andre Birotte Jr. issued an order that “enjoined and restrained” the government from enforcing Trump’s order issued Friday. The ruling was sought by attorneys representing 28 plaintiffs from Yemen who have been held in transit in Djibouti since Trump signed his order Friday. His ruling, however, went beyond the named plaintiffs to include protections for “any other person from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen with a valid immigrant visa,” a group estimated to include 90,000 people.

His action followed similar orders issued by federal judges in Brooklyn, Boston, Seattle and Alexandria, Va. Department of Homeland Security and U.S. Customs and Border Protection officials said in a written statement that as the court orders have come down, the agencies “immediately began taking steps to comply” with them. As of Wednesday morning, they had granted 1,607 waivers to legal permanent residents and 81 to visa holders, while 940 people were recommended for “denial of boarding.”

Julie Ann Goldberg, the attorney who filed the Los Angeles lawsuit along with co-counsel Daniel Covarrubias-Klein, disputed the government’s statement that it is attempting to comply with the court orders. Speaking by telephone from Djibouti, where she is representing an estimated 240 clients, Goldberg said she spoke with nine people who had been returned to Africa on Wednesday with canceled visas from Dulles International Airport near Washington, D.C., despite a court order that covered the area.

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“If they’re cooperating, I want to know why the people I’m sitting with here can’t get on a plane,” said Goldberg, an immigration lawyer with offices in New York and Los Angeles who for two years has been working in Djibouti, an African country across the Gulf of Aden from Yemen.

Goldberg said she was “very, very pleased” with Birotte’s order, but “the problem is that as long as the Trump administration and the people at Customs and Border Protection and the Department of Homeland Security continue to not respect the judicial process and this court order, it means nothing.”

Birotte’s ruling also ordered federal officials to refrain from “canceling validly obtained and issued immigrant visas of plaintiffs,” to return their passports and visas, and to inform authorities at Los Angeles International Airport and the international airport in Djibouti that the plaintiffs are permitted to travel on their visas.

Besides the Los Angeles suit, Goldberg also has filed an immigration action in the U.S. Eastern District of California, headquartered in Sacramento, on behalf of several clients in Fresno. The Fresno suit was filed last week under seal before Trump issued his executive order.

Goldberg said her clients are a mixture of Yemeni American U.S. citizens, some of whom have been working in the United States for a decade or more, and their families that had remained in their native country. Many of the people who had been left behind have since departed Yemen due to the country’s civil war, Goldberg said.

“I have a bunch of children who cannot be with their parents, so many that are being separated,” Goldberg said. “I have 3-year-old children who are all by themselves, and I can’t get them out. Their mom and dad are lawful, permanent residents. I’ve got a 6-year-old whose parents are U.S. citizens, but the child can’t get a visa. The worst thing about the executive order is that it affects the women and children of U.S. citizens.”

Goldberg’s Los Angeles suit says the executive order “runs afoul of several fundamental components” of the United States Constitution and other statutory provisions of law. She wrote that some of her clients are spending between $5,000 and $8,000 a month while in transit in Djibouti and that they can’t go back to Yemen “because doing so will put them at extreme peril given the bloody civil war currently raging in that country.”

The suit said her noncitizen clients have paid fees and “have undergone and followed the thorough policies, procedures and background investigations in order to procure the immigrant visas issued to them.”

One of Goldberg’s clients, Murad Khaled Ali, is a United States citizen living in Fresno and is enrolled in a master’s degree program in marriage and family counseling, the lawyer said. Ali “has been living in Djibouti for the past week in anticipation of her Yemeni husband’s (visa) appointment and is now stuck in Djibouti indefinitely as a result of the Executive Order.” The lawsuit said the husband has been awaiting his visa appointment for two years.

In their request for a restraining order and injunction, the plaintiffs charge that the executive order violates their equal protection, due process, liberty and property interests under the Fifth and 14th amendments. It also says that the order unlawfully singles out Muslims for an immigration ban while allowing Christians to come into the United States from the seven affected mostly-Muslim countries – Syria, Iran, Lybia, Iraq, Sudan and Somalia, as well as Yemen.

The complaint also raises the issue of Trump’s business interests and charges that his executive order violates the U.S. citizen plaintiffs’ rights as “being adversely impacted by defendant Trump’s violation of the Emoluments Clause” of the constitution. While the president has no business interests in any of the seven countries affected by the immigration suspension, he does have them in other Muslim countries that did not come under the order, such as Egypt, Saudi Arabia, Indonesia, the United Arab Emirates and Turkey.

“Potential terrorist threats emanating from the latter list of middle eastern/Muslim majority countries – where the president has financial interests – are factually and quantitatively greater than those threats emanating from the seven countries on which the freeze has been implemented,” the suit said. “Defendant Trump’s signing of the Executive Order to the detriment of plaintiffs and those similarly situated, but also to protect his own personal financial interests abroad – which include presents and/or emoluments being made to him from foreign governments and/or their agents, servants, officers, employees or other persons acting in participation or concert with them, or under their direction and/or command – constitutes a violation of the Emoluments Clause.”

Trump’s executive order “protecting the nation from foreign terrorist entry into the United States” suspended the issuance of visas “and other immigration benefits” to the seven countries pending a multiagency review to determine if anyone trying to immigrate from the affected nations is a security threat.

The immigration suspension is scheduled to last 90 days. The order also suspended refugee admissions from all countries for 120 days pending a review of that program.

Attorneys for the plaintiffs and the government are scheduled to file briefs on the case this week with Judge Birotte, who set a hearing date for Feb. 10 on why he shouldn’t issue a temporary restraining order or a preliminary injunction.

Trump protesters chant "Welcome to America" with international fliers arriving at San Francisco International Airport on Sunday, January 29, 2017. Andy FurilloThe Sacramento Bee

Sara Ehsani-Nia is a second-year law student at UC Davis. She went to San Francisco International Airport on Sunday to work as a translator for the Asian Law Caucus. She helped the agency gain the release of an elderly Iranian couple that flew int Andy Furillo The Sacramento Bee

Andy Furillo: 916-321-1141, @andyfurillo