The travel ban, the court orders and what’s actually happening
President Trump signed an executive order on Jan. 27, 2017 barring people from seven countries from entering the United States for 90 days. The order was blocked by federal courts and the Trump administration replaced it with a revised, narrower travel ban that was supposed to be implemented on March 16. The revised version, which dropped Iraq from the list of barred countries, would have temporarily suspended the U.S. refugee program and suspended for 90 days the issuance of new visas to travelers from the six countries. The government claims that the travel bans were intended to make U.S. citizens safer from attacks by terrorists. However, the U.S. Circuit Courts of Appeals for the Fourth and Ninth Circuits have disagreed and upheld preliminary injunctions blocking parts of the executive order, including the sections banning entry of people from the six countries as well as refugees. The government sought review with the U.S. Supreme Court and the Court announced on June 26, 2017, that it will hear arguments during its upcoming term on the “travel ban” litigation.
The Federal Courts Enjoined
The government has been losing the cases in different federal courts. On June 1, the Fourth Circuit Court of Appeals largely upheld a nationwide injunction issued in March by U.S. District Judge Theodore D. Chuang that blocked the Trump administration from enforcing a key provision of the controversial travel ban. The district court, siding with opponents, found that the travel ban violates the Constitution by intentionally discriminating against Muslims. In a 10-to-3 decision, the appeals court said the president’s power to deny entry into the United States is not absolute. The ruling said Trump’s executive order "speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination." The president’s authority, the court said, “cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”
Since the case was heard by a full sitting of the Fourth Circuit, only the Supreme Court can review and possibly overturn the decision. Additionally, since the lower court’s preliminary injunction applied nationwide, it would block the travel ban’s enforcement, even if other federal appeals courts ruled in the government’s favor.
According to the majority opinion in the Fourth Circuit decision, written by Chief Judge Roger L. Gregory and joined in part by nine colleagues, the president’s executive order violated the religious-freedom protections guaranteed to people in the First Amendment’s Establishment Clause by unjustifiably targeting Muslims for discrimination. “The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, remains ‘a law for rulers and people, equally in war and in peace,’” Gregory wrote. “And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” The court concluded that the president’s order had to be blocked because it “steps over the constitutional line in a way that is out of step with our constitutional values of religious tolerance.” In its opinion, the court said, “plaintiffs point to ample evidence that national security is not the true reason” for the order, “including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith” and his proposal as a candidate to ban Muslims from entering the United States.
During oral arguments, many of the Fourth Circuit judges questioned the government’s lawyer about the link between U.S. security and the barring of citizens from the six countries identified by the administration. Since the travel order itself makes no mention of religion or Muslims, a key issue for the court was whether the order violates the establishment clause of the First Amendment that specifically prohibits the government from denigrating a particular religion. The majority opinion quotes extensively from Trump’s tweets, media interviews and comments made by his supporters and advisers, including White House press secretary Sean Spicer. “Laid bare, this executive order is no more than what the president promised before and after his election: naked invidious discrimination against Muslims,” Judge James A. Wynn Jr. wrote in a concurring opinion.
Even if the Fourth Circuit had vacated the district court’s injunction, the president’s order would have remained on hold because of a separate opinion from a federal judge in Hawaii. The Ninth Circuit Court of Appeals in San Francisco also ruled against President Trump’s revised travel ban on June 12 in the government’s appeal of the Hawaii decision. In order to implement the travel ban, the Justice Department would also have had to prevail in that court. In a unanimous decision, three-judge panel said Mr. Trump had exceeded the authority Congress granted him in making national security judgments without adequate justification. “The order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the Ninth Circuit’s opinion said. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.”
The U.S. Supreme Court Will Now Review
The Justice Department appealed the ruling to the U.S. Supreme Court. Attorney General Jeff Sessions said the administration “strongly disagrees” with the decision. The president’s order, Sessions said in a statement, is “well within his lawful authority to keep the nation safe,” and the president is “not required to admit people from countries that sponsor or shelter terrorism, until he determines that they can be properly vetted and do not pose a security risk to the United States.”
Chief Justice John G. Roberts Jr., who receives emergency petitions from that court, referred the government’s appeal to the rest of the justices. The Supreme Court is positioned to take up the merits of the “travel ban” case during its October Term. The timing will prolong the legal battle for months, and a final ruling is not expected before the end of 2017 or the beginning of 2018 as the justices will not hear oral arguments until after the Court’s annual summer recess. However, the Court made note of the possibility that the challenge could be moot by that time, and has asked the parties to brief the issue. By the executive order’s own terms, the six-country ban was only to last 90 days, and the refugee ban 120 days, during which time the government would conduct internal reviews. It is possible that by the time arguments are heard by the Supreme Court, the ban will have expired. However, the government could amend or re-issue the ban at any time. In the meantime, the Court will allow part of the President’s executive order temporarily banning the entry into the United States of nationals of six Muslim-majority nations (Iran, Libya, Somalia, Sudan, Syria and Yemen) and refugees to go into effect. The Court retained the preliminary injunction for individuals with “a credible claim of a bona fide relationship with a person or entity in the United States.”
Justice Thomas wrote separately in an opinion joined by Justices Alito and Gorsuch, stating that he would support staying the lower courts’ injunctions in full and allowing the ban to go completely into effect. This may be an indication that at least three Justices will support the travel ban in any decision that the Court ultimately issues in this case.
Click here for CLINIC’s analysis of the U.S. Supreme Court’s order.
The Government Is Acting in Other Ways
Even though President Donald Trump’s executive order banning travelers from six Muslim-majority countries was blocked by a federal appeals court, new State Department data show that his administration has issued fewer visas to people from Arab and Muslim countries. The State Department releases the data to comply with a directive from Trump asking it to publish monthly breakdowns of the number of visas issued around the world. Previously, such data was only available in aggregate form by fiscal year, and the department declined to break out March visa data from previous years.
The United States issued about 40 percent fewer temporary visas in March to citizens of the seven countries covered by the president's first travel ban than it did in an average month last year, according to a Reuters analysis of preliminary government data released on April 27, 2017. At the same time, the data showed that the total of U.S. nonimmigrant visas issued to people from all countries was up by nearly five percent in March, compared to the 2016 monthly average.
Since the department did not release data on the total number of all types of visa applications, it was unclear whether the lower number of temporary visas for citizens of the seven countries is because of a higher rate of rejections or other factors, such as fewer applicants or slower processing times. However, the review of the new data regarding the number of visas by Politico shows that in April 2017 there was a nearly 20 percent decline in the number of nonimmigrant visas issued to people from 50 Muslim-majority countries, when compared with the monthly average in 2016. There were 85,790 visas issued per month to people from those countries last year, but that number fell to around 69,000 in April 2017.
For the seven countries targeted in Trump’s first executive order – Yemen, Libya, Iran, Syria, Sudan, Somalia and Iraq – the number of visas issued were down significantly between 2016 and 2017. Visas to the six countries in the revised order were down by 55 percent from 2016; this includes a 68 percent drop in visas issued to Somalis and a 52 percent drop to Iranians.
A report from the Pew Research Center published on May 25 found refugee resettlement has declined since Trump was elected president in November 2016. Refugee admissions to the United States fell from 9,945 in October to 3,316 in April. Admissions reached a low in March at 2,070.
While there isn’t a precise reason stated for the decline in visas, it comes amid a continued crackdown on immigration in the United States. It also comes after the Fourth Circuit affirmed the injunction.
Nevertheless, some immigration attorneys told Reuters that the numbers released on Thursday provide a glimpse into how Trump's policies are affecting visa decisions. "Either there are many fewer people applying because they believe they will be denied, or a much higher rate of denials is already happening even though the executive orders have been blocked," said William Stock, president of the American Immigration Lawyers Association.
The probability of returning to the home country is the most important factor for a consular officer in deciding about issuing a nonimmigrant visa to an applicant. According to the Fiscal Year 2016 Entry/Exit Overstay Report released by Department of Homeland Security, Iranians have a great record in leaving the United States before the expiry date of their nonimmigrant visas. According to the report, less than 2.5 percent of the Iranians who had received a nonimmigrant visa in 2016 overstayed their visa. However, the number of nonimmigrant visas issued to Iranians dropped to 1,572 in March from 2,450 per month on average in 2016. The April data also shows a 52 percent drop in visas for Iranians.
Iranians also received fewer immigrant visas, which are granted to family members of U.S. citizens or those with jobs in the United States, than in previous years. Statistics show that 393 immigrant visas were issued to Iranians in March 2017, compared to the monthly average of 644 in 2016 and the monthly average of 600 in 2014 and 2015.
Immigration lawyers told Reuters that although the travel bans have been halted by courts for now, the administration's vow to put stricter controls on immigration is likely to have changed how U.S. consulates evaluate visa applicants. Stephen Pattison, a former State Department consular official now working as an immigration attorney, said that consulates "are going to probably err more on the side of denying some people that they'd be on the fence about."
Anecdotally, several U.S.-based lawyers with Iranian clients told Reuters that their visa applications are taking longer to process and are being rejected more often since Trump took office on Jan. 20.
They cite shortages of interview appointments for Iranians, interviews cancelled at the last minute and longer "administrative processing" periods than they are accustomed to. In addition to paying a standard $160 visa application fee, Iranians must typically travel to Turkey, Armenia or the United Arab Emirates for their interviews, since there is no U.S. diplomatic presence in Iran.
The Trump administration has also introduced a new questionnaire (Form DS-5535) for U.S. visa applicants worldwide that asks the applicants to disclose any account that they might have on social media for the last five years and also more details about biographical information in last 15 years. For citizens from certain countries, including six countries that are subject to the travel ban, the normal vetting process was already very long. Iranians, for example, would wait anything between 3-6 months to be cleared. With the new tighten vetting process, applicants from such countries expect long delays in processing of their visa applications, which can be more detrimental for particular groups of applicants such as students and scientists who want to start their studies or participate in a conference in U.S.
Even in some of the individual immigration cases where the government has prevailed, federal judges have expressed their contempt for the administration’s actions. For example, on May 30, 2017 a federal appeals judge declared that he lacked the legal authority to prevent removal of a 28-year resident of the United States who was here illegally. However, he called the action “inhumane,” “unfair and unjust,” and far from President Trump’s promise of an immigration system with “a lot of heart.” Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals said the court is compelled to deny Andres Magana Ortiz’s request for an emergency stay of his removal from Hawaii and deportation to Mexico. “In doing so, the government forces us to participate in ripping apart a family,” he wrote. “The government’s insistence on expelling a good man from the country in which he has lived for the past 28 years deprives his children of their right to be with their father, his wife of her right to be with her husband, and our country of a productive and responsible member of our community.”
International Refugee Assistance Project v. Trump
Court of Appeals for the Fourth Circuit
International Refugee Assistance Project
|Represented by||Omar C. Jadwat
American Civil Liberties Union
|Jeffrey B. Wall
Acting Solicitor General of the United States
|What parties sought in the case?||
Challenging, on statutory and constitutional grounds, Trump’s January and then March order which revised his original executive order and addressed concerns by multiple federal courts about the first order’s scope and constitutionality.
Upholding President's Trump's revised executive order blocking citizens of six mostly Muslim countries from entering the United States for 90 days, with some exemptions.
|What parties sought in Fourth Circuit?||
Upholding preliminary injunction issued by Judge Theodore Chuang of the U.S. District Court for the District of Maryland blocking enforcement of Trump’s revised executive order. The nationwide preliminary injunction enjoined enforcement of Section 2(c) of the order. He held that the plaintiffs were likely to succeed on the merits of their INA and Establishment Clause claims.
Challenging Chuang’s injunction. The Trump administration insists that the executive order is necessary to protect the national security and Chuang’s injunctions is preventing the law enforcement agencies from performing their duties in keeping the potential threats of the country.
|How the judges looked at the issue?||
Some of the judges on the court seemed skeptical of the Trump administration’s argument that the order should receive the broad latitude typically granted by the federal judiciary to the executive branch in national-security cases. Many of the 4th Circuit judges questioned the government’s lawyer about the link between U.S. security and the barring of citizens from the six countries identified by the administration.
Some of them wanted to know whether the order was facially legitimate, which could allow it to survive under the Mandel standard —an easy burden for the executive branch to meet.
A few judges sharply challenged the plaintiffs’ lawyer on whether his clients had the legal standing to challenge the portion of the executive order involving visa restrictions. A key issue for the court was whether to consider the president’s political statements and whether the order violates the establishment clause of the First Amendment.
|Parties main arguments||
Omar C. Jadwat at first provided vague answers on whether the order was facially. He later argued that Trump’s order should not be upheld on such a low judicial threshold. “Deference cannot be a license to violate the Establishment Clause,” he told the judges, referring to the First Amendment clause.
Jeffrey B. Wall argued that the order should survive under a standard first articulated by Supreme Court in 1972 in Kleindienst v. Mandel. According to that standard, the government only needs to show a “facially legitimate and bona fide reason” for certain immigration-related decisions. Wall also argued that the revised order is not a “Muslim ban,” “its text doesn’t have anything to do with religion,” he told the judges. “Its operation doesn’t have anything to do with religion.”
The courts have traditionally given broad latitude to the executive branch and Congress when shaping immigration policy.
Chief Judge Roger L. Gregory (joined in part by nine colleagues):
-The travel ban “in context drips with religious intolerance, animus and discrimination.”
-The president’s authority, “cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation,”
-The president’s executive order violated the religious-freedom protections guaranteed in the First Amendment’s Establishment Clause by targeting Muslims.
-“The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, remains ‘a law for rulers and people, equally in war and in peace, … And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
-The president’s order should be blocked because it “steps over the constitutional line in a way that is out of step with our constitutional values of religious tolerance.”
-The “plaintiffs point to ample evidence that national security is not the true reason” for the order, “including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith” and his proposal as a candidate to ban Muslims from entering the United States.
Judge Barbara Milano Keenan (with whom joined Judge Thacker):
-“The stated national security purpose of the Second Executive Order1 likely fails Mandel’s “bona fide” test and violates the Establishment Clause”.
- In the absence of any rationale articulating the risks
posed by “members of the particular class of aliens, namely, the more than 180 million nationals of the six identified countries, … the President’s proclamation under Section 2(c) does not comply with the “finding” requirement of the very statute he primarily invokes to issue the ban imposed by Section 2(c). ”
- “Plaintiffs’ claim that Section 2(c) exceeds the President’s authority under the Immigration Act also is likely to succeed on the merits.”
- Government’s argument that that § 1152(a)(1)(A) does not prevent the President from suspending entry based on nationality, “contravene longstanding canons of statutory construction as well as the text and effect of EO-2 itself .”
Judge Barbara Milano Keenan (with whom joined Judge Thacker):
- “Rejected the plaintiffs’ contention that 8 U.S.C. § 1152(a)(1)(A), which prohibits discrimination on the basis of nationality in the issuance of immigrant visas, operates as a limitation on the President’s authority“.
- The Court should not consider remarks made by candidate Trump before he took his presidential oath of office because the words a candidate utters on the campaign trail may not have any constitutional significance.
Judge Niemeyer (Joined by Judge Shedd and Judge Agee in dissenting):
-“The district court seriously erred (1) by refusing to apply the Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents.”
- “Considering the Order on its face, as we are required to do by Mandel, Fiallo, and Din, it is entirely without constitutional fault. The Order was a valid exercise of the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a)...”
- The majority’s new rule is dangerous because it enables any court to justify its decision to strike down any executive action by finding only “one statement that contradicts the stated reasons for a subsequent executive action and thereby pronounce that reasons for the executive action are a pretext.”
Affirmed in part and vacated in part the preliminary injunction awarded by the district court.
Appealed to the U.S. Supreme Court.