Quote:
Originally Posted by lycosid
I'm confused about the grounds on which the ban is unlawful. Once you exclude green card holders, what kind of protections do aliens have?
From the ACLU's application for a stay:
FIFTH AMENDMENT – PROCEDURAL DUE PROCESS
DENIAL OF RIGHT TO APPLY FOR ASYLUM
57. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
58. Procedural due process requires that the government be constrained before it acts in a way that deprives individuals of liberty interests protected by the Due Process Clause of the Fifth Amendment.
59. The United States government is obligated by United States and international law to hear the asylum claims of noncitizens presenting themselves at United States borders and ports of entry. The Immigration and Nationality Act provides that “[a]ny alien who is physically present
in the United States or who arrives in the United States. . . irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 235(b).” 8 U.S.C. § 1158(a)(1); see also id. § 1225(b)(1)(A)(ii).
60. Consistent with these United States statutory and international law obligations, individuals arriving at United States ports of entry must afforded an opportunity to apply for asylum or other forms of humanitarian protection and be promptly received and processed by United States authorities.
61. Having presented themselves at a United States port of entry, Petitioners are entitled to apply for asylum and to be received and processed by United States authorities.
62. Respondents’ actions in denying Petitioners the opportunity to apply for asylum, taken pursuant to the EO, violate the procedural due process rights guaranteed by the Fourteenth Amendment.
COUNT TWO
FIFTH AMENDMENT – PROCEDURAL DUE PROCESS
DENIAL OF RIGHT TO WITHHOLDING/CAT PROTECTION
63. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
64. Under United States law as well as human rights conventions, the United States may not return (“refoul”) a noncitizen to a country where she may face torture or persecution. See 8 U.S.C. § 1231(b); United Nations Convention Against Torture (“CAT”), implemented in the Foreign Affairs Reform and RestrucTturing Act of 1998 (“FARRA”), Pub. L. No. 105-277, div.
G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231).
65. Respondents’ actions in seeking to return Petitioners to Iraq, taken pursuant to the EO, deprive Petitioners of their rights under 8 U.S.C. § 1231(b) and the Convention Against Torture without due process of law.
COUNT THREE
THE IMMIGRATION AND NATIONALITY ACT, THE CONVENTION AGAINST
TORTURE, THE FOREIGN AFFAIRS REFORM AND RESTRUCTURING ACT OF
1998, IMPLEMENTING REGULATIONS
66. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
67. The Immigration and Nationality Act and implementing regulations, including 8 U.S.C. § 1225(b)(1) (expedited removal), 8 C.F.R. §§ 235.3(b)(4), 208.30, and 1003.42; 8 U.S.C. § 1158 (asylum), and 8 U.S.C. § 1231(b)(3) (withholding of removal), and the United Nations Convention Against Torture (“CAT”), implemented in the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub.L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat.
2681, 2681-822 (1998) (codified at 8 U.S.C. § 1231 note), entitle Petitioners to an opportunity to apply for asylum, withholding of removal, and CAT relief. These provisions also entitle Petitioners to a grant of withholding of removal and CAT relief upon a showing that they meet the applicable legal standards. Respondents’ actions in seeking to return Petitioners to Iraq, taken pursuant to the EO, deprive Petitioners of their statutory and regulatory rights.
COUNT FOUR
FIFTH AMENDMENT – EQUAL PROTECTION
68. Petitioners repeat and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
69. The EO discriminates against Petitioners on the basis of their country of origin, and without sufficient justification, and therefore violates the equal protection component of the Due Process Clause of the Fifth Amendment.
70. Additionally, the EO was substantially motivated by animus toward—and has a disparate effect on—Muslims, which also violates the equal protection component of the Due Process Clause of the Fifth Amendment.
COUNT FIVE
ADMINISTRATIVE PROCEDURE ACT
71. Petitioners repeat and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
72. The INA forbids discrimination in issuance of visas based on a person's race, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A).
73. Respondents’ detention and mistreatment of Petitioners and the members of the proposed class pursuant to the January 27 EO, as set forth above, is not authorized by the INA.
74. Respondents’ actions in detaining and mistreating Petitioners and other members of the proposed class as set forth above were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and without observance of procedure required by law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).
Does that clear it up for you?