In a swift decision, a federal judge refused Friday to extend a restraining order that had halted the implementation of President Trump’s controversial immigration ban in Massachusetts.
US District Judge Nathaniel M. Gorton said in a 21-page order issued late Friday afternoon that he was sympathetic to the American Civil Liberties Union’s claims that immigrants could suffer irreparable harm from the ban, but he found that the government’s “likelihood of success on the merits weighs most heavily in the decision.”
“Because plaintiffs have not demonstrated that they are likely to succeed on the merits of any of their claims, an extension of the restraining order at the present time is not warranted,” the judge said.
The ACLU and immigration lawyers had argued that the president’s ban discriminates against Muslims, and they sought a restraining order preventing the government from detaining or deporting immigrants with lawful documentation who were trying to enter the country. The lawsuit listed lawful permanent residents as well as immigrants with visas.
In his ruling, Gorton found that the lawful permanent residents who were named in the lawsuit do not need the protection of a restraining order, because the president has now said his executive order does not apply to them. The judge said he found the issue “moot.”
And while Gorton agreed that immigrants who are in the country with visas are entitled to some form of equal protection, that standard is lower for immigrants who are trying to enter the country.
“There is a distinction … between the constitutional rights enjoyed by aliens who have entered the United States and those who are outside of it,” he said.
The judge found that the president has broad authority to decide who can enter the country, a “fundamental sovereign attribute” that is “largely immune from judicial control.” That broad authority, the judge found, gives greater deference to Trump’s claim that the ban was meant to “prevent infiltration by foreign terrorists.”
Rejecting claims that the ban unfairly affects the immigrants’ rights against discrimination, the judge ruled that “there is no constitutionally protected interest in either obtaining or continuing to possess a visa.”
“A non-citizen has no inherent property right in an immigrant visa,” the judge said. “Thus, because an alien does not enjoy a property right in a visa, he has no due process right that protects the manner in which a visa is revoked.”
What remains unclear is whether the administration is revoking visas for people who were legally in the country at the time the order was issued.
State Department officials said the executive order would not affect the visas of people already in the country. When asked by the judge if visas would be revoked for non-citizens who were in the US when the executive order was issued, a government lawyer said at Friday’s hearing that the visas would be revoked.
Regardless, the judge said that the plaintiffs would not be protected to immediate relief anyway, saying, “The plaintiffs have no property or liberty interest in those visas and thus no due process claim with respect to the supposed revocation.”
The judge said immigrants in the country could raise due process claims at deportation proceedings, but “there is no indication that such proceedings are forthcoming.”
The judge added, “While this court is sympathetic to the difficult personal circumstances in which these plaintiffs find themselves, if they choose to leave the country, as non-resident aliens, they have no right to re-enter.”
The ACLU had also argued that the ban violates the rights of organizations that seek to bring people into the country, such as Oxfam, a Boston-based humanitarian aid entity that brings employees and associates here to testify about conditions in other countries, including five of those countries on the president’s list.
But Gorton rejected that claim. While the US Supreme Court has found that the denial of a visa to a non-citizen could potentially violate a US citizen’s First Amendment right to “receive information,” the government could still deny a visa for a legitimate reason.
Gorton found that Trump’s claim that the ban was to “protect against terrorist attacks” – and the president’s broad authority to make that claim – constitutes a legitimate reason to deny the visas.
“Such a justification is facially legitimate and bona fide and therefore Oxfam’s First Amendment rights are not implicated,” the judge said.
The ACLU said it was disappointed with the ruling, but that “this case is not over.”
“ACLU of Massachusetts lawyers will continue to challenge the executive order in this case, and the ACLU will continue to challenge it in cases all over the nation,” said Carole Rose, executive director of the ACLU in Massachusetts, maintaining that the ban is unconstitutional. “The ACLU of Massachusetts remains deeply committed to protecting freedoms of all Massachusetts citizens – and challenging any actions we believe to be illegal, unconstitutional and dangerous. We will continue to work every day in the courts, in the state legislature, and in our communities to defend and preserve liberty and justice for all.”
John R. Ellement of the Globe Staff contributed to this report. Maria Sacchetti can be reached at firstname.lastname@example.org. Follow her on Twitter @mariasacchettiMilton J. Valencia can be reached at email@example.com. Follow him on Twitter @miltonvalencia.
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