Ninth Circuit prevents most of President Trump’s revised travel ban from taking effect

On June 12, 2017, the Ninth Circuit issued its highly anticipated opinion in the case State of Hawaii, et al. v. Trump. The Court upheld the district court’s injunction enjoining the government from carrying out President Trump’s revised executive order, entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which banned certain immigrants from entering the United States under various conditions. We recapped the Fourth Circuit’s decision, also preventing execution of the revised executive order, when it came out at the end of May.

Although the effect of both circuits’ decisions was mostly the same, the courts relied on different reasoning. The Fourth Circuit determined that the president’s pre and post election statements could be deployed as evidence of an unlawful, religiously based motivation. This paved the way for its ultimate conclusion that the revised executive order was impermissible because it was “motivated by a primarily religious purpose, rather than its stated reason of promoting national security.”

The Ninth Circuit, however, found that the President had exceeded his statutory authority to control immigration. In keeping with protocol, the Court did not address the constitutional arguments because it was able to resolve the case on the non-constitutional, statutory grounds at issue.

Lack of support for the revised executive order

In assessing the government’s rationale, the Court opined that the President failed to show that “the entry of these classes of people would be ‘detrimental to the interests of the United States.’” Additionally, the Court found that the revised executive order “runs afoul of other [statutory] provisions…that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees.”

In its opinion, the Court cited several key facts that contributed to the outcome. For example, at the outset, it acknowledged that a president has “broad powers to control the entry of aliens, and to take actions to protect the American public.” But, the Court pointed out, “immigration, even for the President, is not a one-person show. The President’s authority is subject to certain statutory and constitutional restraints.”

The Court also cited two of the Department of Homeland Security’s (DHS) own reports that contradicted the government’s claims. The first, a draft issued after the first executive order but before the revised one, concluded that “citizenship ‘is unlikely to be a reliable indicator of potential terrorist activity’ and that citizens of countries affected by [the first executive order] are ‘[r]arely [i]mplicated in U.S.-[b]ased [t]errorism.’”

Moreover, according to this draft report, “since the spring of 2011, at least eighty-two individuals were inspired by a foreign terrorist group to carry out or attempt to carry out an attack in the United States. Slightly more than half were U.S. citizens born in the United States, and the remaining persons were from twenty-six different countries—with the most individuals originating from Pakistan, followed by Somalia, Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan.” Except Somalia, none of these countries was identified in the revised executive order as being among the top countries-of-origin for the terrorists.

Similarly, the final version of the report concluded that “most foreign-born, [U.S.]-based violent extremists likely radicalized several years after their entry to the United States, [thus] limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.”

The Court considered the section of the revised executive order that suspended decisions on applications for refugee status for 120 days. To this, the Court declared that the revised executive order “does not reveal any threat or harm to warrant suspension…for 120 days and does not support the conclusion that the entry of refugees in the interim time period would be harmful. Nor does it provide any indication that present vetting and screening procedures are inadequate.”

Likewise a section limiting entry of refugees to no more than 50,000 in the 2017 fiscal year; the Court observed that the revised executive order made no findings, and gave no explanation to justify this cap, thus reasoning that the President had not met the statutory preconditions of exercising his authority.

For these and related reasons, the revised executive order “does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.”

Injunction on internal review was overbroad

The one matter on which the Court did agree with the government was that the scope of the preliminary injunction was too broad regarding certain vetting procedures pursuant to visa applications and the like. Accordingly, certain “inward facing tasks,” such as making “determinations regarding the necessary information for visa application adjudications” are permissible, because the Court vacated “the preliminary injunction to the extent it enjoins internal review procedures that do not burden individuals outside of the executive branch of the federal government.”

Uniform treatment

And finally, the Court upheld the nationwide reach of the injunction. It recognized that immigration laws are to be enforced uniformly, and “the Government has not offered any new workable method of limiting the geographic scope…”



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