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Saturday, February 11, 2017

The immigration ban case - a primer for nonlawyers

I read the full Ninth Circuit Court of Appeals opinion on the immigration ban and thought it might be helpful to provide a little background for those of you who are not lawyers or haven't read it. This is an explanation as of February 11, 2017; if you're reading this much after that date, then the case has probably proceeded along since then and this explanation may no longer be as helpful. This is not a political post, just explaining where the case is right now. Bottom line, the substantive issues involved have not even been heard by the trial court yet – all that has happened so far is that the trial court and the court of appeals imposed a stay on enforcing the immigration ban until the substantive legal issues can be fully argued at the trial court level.  The Court of Appeals opinion is easily found online should you wish to read it yourself, although it will be a bit of a slog for nonlawyers.

The lawsuit filed by the states to try to stop the immigration ban has not been heard by the Federal District Court. All the District Court has done so far is to place an injunction on the enforcement of the ban until a full trial is held on the legality of the ban. To grant the injunction, the District Court had to make the threshold determination that irreparable harm would occur if the executive orders were allowed to go forward prior to a full trial, and that the states challenging the ban are more likely than not to win their challenge at the full trial. Again, no hearing or trial has actually been held yet on the substantive issues involved.

The Trump administration appealed the injunction, arguing that the executive order should remain in place and be enforceable pending the full trial. Remember, all an appeals court does is review what the trial court did and determine if there was a proper legal basis for the trial court's determination. An appeals court does not re-hear the factual issues in the case or make any factual determinations. In fact, an appeals court does not hear testimony or really weigh evidence at all, it only looks at what was done at the trial court below and listens to the arguments of the attorneys as to whether or not what the trial court did was proper. The appeals court generally defers to the factual determinations of the trial court since the trial court judge actually heard all the evidence and testimony and the appeals court does not.

In this case, the Ninth Circuit Court of Appeals looked at the injunction put in place by the trial court and declined to reverse the trial court's conclusion that an injunction was proper in this case until a full trial on the substantive issues could be held.

I cannot take great offense at these rulings and they are not out of the mainstream with regard to how court cases generally proceed. The trial court basically said that there is no great emergency requiring the immigration ban to take effect immediately and that it made sense to keep the status quo as it existed prior to the ban until the legality of the ban can be fully determined. Personally I believe there are parts of the ban that are perfectly enforceable and there are parts of it that obviously are not.  I would have preferred for the trial court to have enjoined the parts that were not enforceable and to let the other parts proceed, but it chose not to do that and the Court of Appeals really does not have the authority to delve into that level of detail at this point in the case. The case will proceed at the District Court level presumably and I believe ultimately parts of the ban will be upheld and parts of it will not be. But I think it is important to understand that the substantive legal issues have not even been fully heard at this point. I hope this explanation was helpful.