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Appeals court upholds court order blocking Trump’s travel and immigration ban

WASHINGTON, D.C. – The 9th Circuit Court of Appeals has denied President Donald Trump’s emergency appeal to reinstate his immigration and travel restrictions placed on people from certain Middle Eastern countries.

At issue in this emergency proceeding is Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries. Two States challenged the Executive Order as unconstitutional and violative of federal law, and a federal district court preliminarily ruled in their favor and temporarily enjoined enforcement of the Executive Order. The Government moved for an emergency stay of the district court’s temporary restraining order while its appeal of that order proceeds.

To rule on the Government’s motion, the appeals court considered several factors, including whether the Government (Trump Administration) has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. The court says it “assessed those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides.”

On January 27, 2017, the President issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States”. Citing the terrorist attacks of September 11, 2001, and stating that “numerous foreign-born individuals have been convicted or implicated in terrorism- related crimes” since then, the Executive Order declares that “the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” Id. It asserts, “Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”

The Executive Order makes several changes to the policies and procedures by which non-citizens may enter the United States. Three are at issue here.

First, section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Second, section 5(a) of the Executive Order suspends for 120 days the United States Refugee Admissions Program. Upon resumption of the refugee program, section 5(b) of the Executive Order directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality.

Third, section 5(c) of the Executive Order suspends indefinitely the entry of all Syrian refugees. Id. Sections 3(g) and 5(e) of the Executive Order allow the Secretaries of State and Homeland Security to make case-by-case exceptions to these provisions “when in the national interest.” Section 5(e) states that situations that would be in the national interest include “when the person is a religious minority in his country of nationality facing religious persecution.”

The Executive Order requires the Secretaries of State and Homeland Security and the Director of National Intelligence to evaluate the United States’ visa, admission, and refugee programs during the periods in which entry is suspended.

The impact of the Executive Order was immediate and widespread. It was reported that thousands of visas were immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained. Three days later, on January 30, 2017, the State of Washington filed suit in the United States District Court for the Western District of Washington, challenging sections 3(c), 5(a)-(c), and 5(e) of the Executive Order, naming as defendants the President, the Secretary of the Department of Homeland Security, the Secretary of State, and the United States (collectively, “the Government”). Washington alleged that the Executive Order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities in violation of the First and Fifth Amendments, the INA, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. Washington also alleged that the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a “Muslim ban” as the President had stated during his presidential campaign that he would do.

Washington asked the district court to declare that the challenged sections of the Executive Order are illegal and unconstitutional and to enjoin their enforcement nationwide. On the same day, Washington filed an emergency motion for a temporary restraining order (TRO) seeking to enjoin the enforcement of sections 3(c), 5(a)-(c), and 5(e) of the Executive Order. Two days later, Washington’s Complaint was amended to add the State of Minnesota as a plaintiff and to add a claim under the Tenth Amendment. Washington and Minnesota (collectively, “the States”) jointly filed an amended motion for a TRO. The Government (Trump Administration) opposed the motion the next day, and the district court held a hearing the day after that.

That evening, the court entered a written order granting the temporary restraining order TRO.

In conclusion, the 9th Circuit Court of Appeals held that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and therefore denied its emergency motion for a stay.

Democratic Leader Nancy Pelosi released the following statement after the 9th Circuit Court of Appeals unanimously refused to lift the nationwide halt on President Trump’s executive order banning refugees and citizens from seven Muslim countries:

“The 9th Circuit’s unanimous ruling is a victory for our Constitution and our fight against terrorism. National security experts have urgently warned us that the President’s ban is not just immoral and unconstitutional, but downright dangerous.

“This Administration’s recklessness has already done significant harm to families, and undermined our fight against terror. For the sake of our values and the security of America, Democrats will continue to press for President Trump’s dangerous and unconstitutional ban to be withdrawn.”

President Trump immediately declared that the matter was not over. Via Twitter, he said “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

https://twitter.com/realDonaldTrump/status/829836231802515457

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