"We still haven’t talked to a client,” said Ahmad,

Well, diaperhead, that's because illegals DONT HAVE CONSTITUTIONAL RIGHTS... until they are legal.

Well, diaperhead, that's because illegals DONT HAVE CONSTITUTIONAL RIGHTS... until they are legal.

I believe that statement overreaches and is clearly incorrect.

Some constitutional rights explicitly protect persons and apply to all persons within the United States.

These people are persons, however, they arrived at the port of entry and were not immediately granted admission and were detained. They were detained in the neutral zone and as a legal technically or legal fiction, they are not considered to have entered the United States. They are arriving aliens. An "arriving alien" seeking admission does not enjoy constitutional rights. It is unclear what law the judge is applying.

They do not have a right to an attorney appointed to them; this is not a criminal matter. They would only be awaiting an administrative proceeding.

“We still haven’t talked to a client,” said Ahmad, who is with the HMA Law Firm in McLean, Va.

Unless one of the detained people has retained his services, Ahmad does not have a client.

The judge's order reads in part:

a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport;

While impressive sounding, there may not be any detained person who held the status of "legal permanent resident" as opposed to the status of "arriving alien."

These are not deportation cases as the subjects are not in the country. These are exclusion cases potentially leading to removal.

In the act shown below, if an immigration officer or an immigration judge suspects that an "arriving alien" may be inadmissible on security and related grounds, an order of removal may be issued without further hearing, subject to review by the Attorney General; and if the Attorney does not order the removal of the alien, the Attorney General shall specify the further inquiry or hearing that shall be conducted in the case.

It is not clear what right to an attorney the judge is enforcing, or what an attorney could do if he had an attorney. It is not clear how an attorney, not representing a client, has a right to see his non-existent client.

They retain the status of "arriving alien" and an Immigration Judge lacks jurisdiction to do anything.

An "arriving alien" per 8 C.F.R § 1.1(q):

[A]n applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after such parole is terminated or revoked.

An "arriving alien" remains such even if he or she is physically present in the United States. As a legal fiction, he or she is still outside the door, trying to get in.

There is a special consideration for a alien with legal permanent resident (green card) status, see Matter of Alcibiades Antonio PENA, link, full citation, and quote below.

An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012), if he or she does not fall within any of the exceptions in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012).

However, the cited 8 U.S.C. § 1101(a)(13)(C) seems to extinguish any claim to not being an "arriving alien."

(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

That appears to precisely describe the situation of the arriving aliens who were detained after they were inspected by an immigration officer and not granted admission.

So, it appears their legal status is that of "arriving alien," not "legal permanent resident", until they are granted admission.

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SOURCES:

http://immigrationcourtside.com/category/courts/edva/judge-leonie-brinkema/

Copy Of TRO By Judge Leonie Brinkema, EDVA, Prohibiting Removal Of LPRs & Requiring Access To Counsel — Aziz v. Trump

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Case No. 1:17-cv-116

Date: January 28, 2017

Ammar Aqel Mohammed Aziz, by their next friend,

Aqel Muhammad Aziz, and

John Does 1-60, Petitioners,

v.

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles,

Respondents.

TEMPORARY RESTRAINING ORDER

Pursuant to Federal Rule of Civil Procedure 65, the Court orders that:

a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport;

b) respondents are forbidden from removing petitioners—lawful permanent residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.

Dates: January 28, 2017

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https://www.law.cornell.edu/rules/frcp/rule_65

Rule 65. Injunctions and Restraining Orders

(a) Preliminary Injunction.

(1) Notice. The court may issue a preliminary injunction only on notice to the adverse party.

(2) Consolidating the Hearing with the Trial on the Merits. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party's right to a jury trial.

(b) Temporary Restraining Order.

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

(2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.

(4) Motion to Dissolve. On 2 days’ notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.

(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

(d) Contents and Scope of Every Injunction and Restraining Order.

(1) Contents. Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued;

(B) state its terms specifically; and

(C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.

(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties’ officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

(e) Other Laws Not Modified. These rules do not modify the following:

(1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee;

(2) 28 U.S.C. §2361, which relates to preliminary injunctions in actions of interpleader or in the nature of interpleader; or

(3) 28 U.S.C. §2284, which relates to actions that must be heard and decided by a three-judge district court.

(f) Copyright Impoundment. This rule applies to copyright-impoundment proceedings.

Notes

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

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https://www.uscis.gov/sites/default/files/ocomm/ilink/0-0-0-10948.html

Pub. L. 104-208

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

[excerpt]

"(c) REMOVAL OF ALIENS INADMISSIBLE ON SECURITY AND RELATED GROUNDS.-

"(1) REMOVAL WITHOUT FURTHER HEARING.-If an immigration officer or an immigration judge suspects that an arriving alien may be inadmissible under subparagraph (A) (other than clause (ii)), (B), or (C) of section 212(a)(3), the officer or judge shall-

"(A) order the alien removed, subject to review under paragraph (2);

"(B) report the order of removal to the Attorney General; and

"(C) not conduct any further inquiry or hearing until ordered by the Attorney General.

"(2) REVIEW OF ORDER.

"(A) The Attorney General shall review orders issued under paragraph (1).

"(B) If the Attorney General-

"(i) is satisfied on the basis of confidential information that the alien is inadmissible under subparagraph (A) (other than clause (ii)), (B), or (C) of section 212(a)(3), and

"(ii) after consulting with appropriate security agencies of the United States Government, concludes that disclosure of the information would be prejudicial to the public interest, safety, or security, the Attorney General may order the alien removed without further inquiry or hearing by an immigration judge.

"(C) If the Attorney General does not order the removal of the alien under subparagraph (B), the Attorney General shall specify the further inquiry or hearing that shall be conducted in the case.

"(3) SUBMISSION OF STATEMENT AND INFORMATION.-The alien or the alien's representative may submit a written statement and additional information for consideration by the Attorney General.

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https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3344.pdf

Interim Decision #3344

In re Alex OSEIWUSU, Respondent

File A72 537 754 - San Pedro

Decided March 25, 1998

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

(1) An alien who arrives in the United States pursuant to a grant of advance parole is an “arriving alien,” as that term is defined in the federal regulations.

(2) According to the regulations, an Immigration Judge has no authority over the apprehension, custody, and detention of arriving aliens and is therefore without authority to consider the bond request of an alien returning pursuant to a grant of advance parole.

Pro se

Before:

Board Panel: HEILMAN, COLE, and MATHON, Board Members.

HEILMAN, Board Member:

This is a timely appeal from an Immigration Judge’s bond redetermi- nation decision. The request for oral argument before the Board is denied. 8 C.F.R. § 3.1(e) (1997). The request for a waiver of the appeal fee is granted. The decision of the Immigration Judge will be vacated and the record will be returned to the Immigration Court.

The respondent last arrived in the United States in April of 1996. At the time he returned to the United States, the respondent was an applicant for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1994), based on his marriage to a citi- zen of the United States. The respondent was paroled into the United States upon his arrival pursuant to a grant of advance parole.

The federal regulations define an “arriving alien” as follows: “The term arriving alien means an alien who seeks admission to or transit through the United States . . . . An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act.” 62 Fed. Reg. 10,312, 10,330 (1997) (to be codified at 8 C.F.R. § 1.1(q)) (interim, effective Apr. 1, 1997). Given the fact that the respondent was paroled into the United States, he falls within the definition of an “arriving alien.”

Pursuant to the regulations, an Immigration Judge has no authority over the apprehension, custody, and detention of arriving aliens. 62 Fed. Reg. 10,312, 10,361 (1997) (to be codified at 8 C.F.R. § 236.1(c)(5)(i)) (interim, effective Apr. 1, 1997). Moreover, arriving aliens cannot avail themselves of the review process provided in the regulations.

Id.; see also

62 Fed. Reg. 10,312, 10,361 (1997) (to be codified at 8 C.F.R. § 236.1(d)) (interim, effective Apr. 1, 1997)(describing the review process).

Therefore, because the Immigration Judge had no authority over the apprehension, custody, and detention of arriving aliens, consideration of the respondent’s bond request was improper.

Accordingly, the decision of the Immigration Judge will be vacated, and the record will be returned to the Immigration Court for any further action, as necessary.

ORDER:

The Immigration Judge’s decision is vacated, and the record is returned to the Immigration Court.

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https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/ar_alien.pdf

Getting into the weeds on "arriving alien."

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https://www.justice.gov/eoir/file/478111/download

Matter of Alcibiades Antonio PENA, Respondent

Decided June 16, 2015

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012), if he or she does not fall within any of the exceptions in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished.

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http://law.justia.com/codes/us/2014/title-8/chapter-12/subchapter-i/sec.-1101/

8 U.S.C. 1101(a)(13)(C)

8 U.S.C. § 1101 (2014)

§1101. Definitions

(a) As used in this chapter—

[...]

(13)

[...]

(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien—

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings,

(v) has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title, or

(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

- - - - - - - - - -

I believe that statement overreaches and is clearly incorrect.

I believe that at some point, this exact question needs to be decided by the USC. We've become weakened by over sensitivity... and aside from the libtards in this country using over sensitivity as a means to use our kindness as weakness, the rest of the filthy world is too. It's why that Ricky Ricardo looking mother fuker from Mexico won't police his own scum from invading us... it's what keeps other countries smiling with lopsided trade deals with us... it's what keeps us from waterboarding smelly diaper head shitbags for Intel, for our own SECURITY... it's what keeps our borders open, 24/7 like WalMart.... it's what fuels NARCANing a heroine shitbird for the 5th time as we snub out natural selection at work... it's what causes LIBERALNESS and taxing into 20 trillion dollar deficits.

Americans should have "constitutional rights" only... and everyone else, until Americanized LEGALLY, should only be looked at as having BASIC HUMAN RIGHTS.

Then, that cunt Elizabeth Warren, can shut her filthy Agitation Propagandist twat licker at the airports.

I believe that at some point, this exact question needs to be decided by the USC. ... Americans should have "constitutional rights" only... and everyone else, until Americanized LEGALLY, should only be looked at as having BASIC HUMAN RIGHTS.

If that is wanted, it should be done by amendment and not by the USSC.

The constitutional phrasing is clear when it refers to the aggregate of American citizens as "the people." The phrasing is equally clear when it intends to be inclusive of more than just the people of the United States — using the term "all persons;" or "no person," or "any person."

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

- - - - - - - - - -

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If any person means a non-American or non-citizen, then our founding fathers were HIGH when they wrote this.

nor be deprived of life, liberty, or property, without due process of law

It's not a deprivation of rights to lawfully remove persons who have come here unlawfully and return those persons to their country of origin.

To argue to the contrary is ridiculous. Else anyone could arrive here from anywhere, and folks would continue to come claiming "equal protection of the laws" until the boat was swamped to the gunwales and ready to tip over. And we're getting to that point.

NO NATION affords any and all comers such rights although some northern hemisphere nations are coming perilously close - so close that rebellions are brewing in countries that have proven themselves so suicidally charitable.

It is patently obvious that "any person" includes citizen and non-citizen alike.

nor shall any state deprive any person of life, liberty, or property, without due process of law;

If you were correct, a state may deprive aliens of life without due process of law.

Can a state lawfully sentence an alien to death without a trial? Can an alien be lawfully sentenced to death by a procedure which denied him assistance of attorney or a jury?

If the alien enjoys NO constitutional rights, from where does he obtain a right to a jury trial and assistance of attorney?

There are some constitutional rights that apply to all persons in the United States.

The Framers were not high when writing the Constitution. Were aliens here to be denied all rights provided to citizens, reciprocal action would be taken against Americans by other nations.

[Randge #6] It's not a deprivation of rights to lawfully remove persons who have come here unlawfully and return those persons to their country of origin.

It is not a deprivation of rights to remove persons who have arrived here unlawfully. I made no argument that such was the case. I only observed that there are some constitutional rights which apply to both citizens and aliens.

There are some circumstances under which an alien may not be returned to his country of origin. The country of origin may refuse to accept them, or returning them there could to the harm or death of the alien. That does not mean the alien must be admitted, but we may have to shop about for a country willing to accept them.

These same rights do not apply to aliens at a border entry point, requesting admission. There is no right to admission.

The President may, by proclamation, for such period as he deems necessary, suspend the entry of any class of aliens as immigrants or nonimmigrants.

http://law.justia.com/codes/us/2013/title-8/chapter-12/subchapter-ii/part-ii/section-1182/

Inadmissible aliens - 8 U.S.C. § 1182 (2013)

8 U.S.C. § 1182(f) (2013)

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.