An analysis of the recent order by Judge Donnelly by an attorney and former State Department employee:
There are two things not be readily apparent for Americans that are important to know about the action taken by this judge. The first, legal; the second, political.
First, note that the judge’s order blocks immigration authorities for sending people out of the United States “after they have landed at a U.S. airport with valid visas.”
This is an entirely unlawful act by the judge, completely at odds with basic, well-known United States law and, as such, the ruling can be nothing more than naked partisanship, an act aimed at negating a policy disagreed with committed while acting under the color of law.
U.S. visas, of any class, are different from those issued by other countries. They do not confer the right to enter the United States, but the right to present oneself at a Port of Entry (including airports) to ask for permission to enter the United States.
How Can I Use a Visa to Enter the United States?
Having a U.S. visa allows you to travel to a port of entry, airport or land border crossing, and request permission of the Department of Homeland Security (DHS), Customs and Border Protection (CBP) inspector to enter the United States. While having a visa does not guarantee entry to the United States, it does indicate a consular officer at a U.S. Embassy or Consulate abroad has determined you are eligible to seek entry for that specific purpose. DHS/CBP inspectors, guardians of the nation’s borders, are responsible for admission of travelers to the United States, for a specified status and period of time. DHS also has responsibility for immigration matters while you are present in the United States.— U.S. Dept. of State, website, webpage “What is a U.S. Visa”
Thus, the entirety of the judge’s order is unlawful and proceeds from an assumption of legal facts about what a U.S. visa is that is wrong. This judge isn’t stupid. She knows this. She knows that the order she issued is unlawful.
There is more, so read the whole thing there. It’s more serious than it looks at first glance, and confirms my opinion that Trump needs to crush this attempt to delegitimize his authority. And while it looks like the administration has partially backed down, given Priebus’s statement that the ban will not apply to green card holders, that may not be the case, since green card holders presumably have the right to entry that non-holders with visas do not.