Homeland Security Watchdog to Review Immigration Order

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By Laura D. Francis

Implementation of President Donald Trump’s immigration executive order that left immigrants stranded at airports and a created a wave of uncertainty among the business community is under review by the Department of Homeland Security’s Office of Inspector General.

The Jan. 27 order, which temporarily banned the entry of immigrants and refugees from seven countries, has been blocked by several federal judges. Most recently, Judge André Birotte of the U.S. District Court for the Central District of California issued a wide-ranging order Jan. 31 banning implementation of the executive order and cancellation of valid visas.

Judge Ann M. Donnelly of the U.S. District Court for the Eastern District of New York late Jan. 28 blocked the removal of refugees with approved applications and those with valid temporary and permanent visas.

After the confusion and protests at airports across the country immediately following implementation of the executive order, the temporary court orders and OIG review has cast some doubt as to whether Trump’s temporary ban on refugees and foreign nationals from Iran, Iraq, Syria, Somalia, Libya, Sudan and Yemen will hold.

“It’s too early to tell” whether the various lawsuits will make their way to the U.S. Supreme Court, Melissa Crow, legal director of the American Immigration Council, told Bloomberg BNA Feb. 2.

The justices last April heard the case against former President Barack Obama’s 2014 executive action providing deportation relief for certain undocumented immigrants, but split 4-4 on whether or not to uphold it. If Trump’s pick to replace Justice Antonin Scalia—U.S. Court of Appeals for the Tenth Circuit Judge Neil Gorsuch—is confirmed, he could be the one to break that tie vote on the issue of the scope of the president’s authority over immigration policy.

Sens. Durbin, Duckworth Request Review

The inspector general office’s review, announced late Feb. 1, was initiated in response to a request from Illinois Democratic Sens. Richard Durbin and Tammy Duckworth, an OIG spokeswoman told Bloomberg BNA Feb. 2. The review also was spurred by whistle-blower and hotline complaints, the office said in a statement.

In addition to reviewing the implementation of the executive order, the OIG also will be investigating allegations that DHS officers aren’t following the court orders blocking it.

The office is undertaking a review rather than an investigation, which takes much longer, the OIG spokeswoman said. A full investigation, which can take nine to 12 months, is conducted by law enforcement officers and involves criminal allegations or “egregious administrative misconduct,” she said. The review of the executive order implementation will take only three to five months, she said.

But depending on what the office uncovers during a review, it could turn into an investigation, the spokeswoman said.

There are reports that at least some Customs and Border Protection agents are disobeying the court orders blocking the executive order’s implementation. The American Civil Liberties Union, which along with other civil and immigrants’ rights groups filed the New York lawsuit, was scheduled for a status conference Feb. 2 on that issue, the AIC’s Crow said. The conference was to get clarification on whether Donnelly’s stay is in fact nationwide and to urge her to order that it be followed, she said.

The ACLU and other groups also are seeking the names of those detained at airports, Crow said. The CBP has argued that nobody is detained but rather being processed, she said.

A group of 100 members of the House separately is seeking an emergency briefing from Homeland Security Secretary John Kelly on the order and its implementation. They also are calling on Kelly to condemn the order.

‘Litigation Blizzard.’

Since the CBP started enforcing the executive order, there has been a “litigation blizzard,” Crow said. The first lawsuits were centered around individuals detained at specific airports: John F. Kennedy International Airport in New York, Dulles International Airport in Dulles, Va., Logan International Airport in Boston, Seattle–Tacoma International Airport and Los Angeles International Airport, she said.

The states of New York, Virginia and Massachusetts have sought to intervene in the lawsuits in their respective states, Crow said. The state of Washington also has filed its own lawsuit, she said.

Also pending is a nationwide proposed class action filed by the American Immigration Council and other immigrants’ rights groups on behalf of those outside the U.S. who can’t travel in because of the suspension of the processing of their visas, Crow said.

And yet another lawsuit challenges U.S. Citizenship and Immigration Services’ suspension of processing of benefits for immigrants who are in the U.S. if they’re from the seven countries named in the executive order, she said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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