Saturday, December 2, 2017

Ninth Circuit to Hear Arguments in Challenge to Travel Ban 3.0 on December 6

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On December 6 at 2 p.m. PST, the U.S. Court of Appeals for the Ninth Circuit will hear arguments in Seattle in the latest travel ban challenge in State of Hawaii v. Trump.  The panel that will hear the case is Michael Daly Hawkins, Ronald Gould, and Richard Paez.  The panel previously affirmed an injunction of an earlier version of the travel ban.

As previously summarized on ImmigrationProfU.S. District Court Judge Derrick Watson in Hawaii in this order partially blocked President Trump's third attempt to restrict entry into the U.S. for citizens of certain countries.   The U.S. government appeals the ruling. 

Like the two previous executive orders, the newest version of the travel ban was challenged in multiple courts. The ruling by Judge Derrick K. Watson is one piece of the complicated legal puzzle over the long-term fate of the president's efforts to limit travel to the United States.

In his ruling, Watson wrote that the third version of the ban, like those before it, "lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be 'detrimental to the interests of the United States,' " evidence that he says would be necessary for the ban to be enforceable under the statute.

As a result, he issued a temporary restraining order that will keep the ban from being enforced for six of the eight named countries — the six majority-Muslim nations. North Korea and Venezuela, which were added in the most recent version of the ban, are not affected by the ruling, and the restrictions on travel from those countries can go into effect.

The introduction to the ruling summarizes the court's reasoning and ruling:

"Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with EO-3. On June 12, 2017, the Ninth Circuit affirmed this Court’s injunction of Sections 2 and 6 of Executive Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017), entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO-2”). Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). The Ninth Circuit did so because “the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress” in 8 U.S.C. § 1182(f). Hawaii, 859 F.3d at It further did so because EO-2 “runs afoul of other provisions of the [Immigration and Nationality Act (‘INA’), specifically 8 U.S.C. § 1152,] that prohibit nationality-based discrimination.” Hawaii, 859 F.3d at 756.

Enter EO-3.1 Ignoring the guidance afforded by the Ninth Circuit that at least this Court is obligated to follow, EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries2 would be “detrimental to the interests of the United States,” a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f). Hawaii, 859 F.3d at 774. And EO-3 plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) and the founding principles of this Nation. Hawaii, 859 F.3d at 776–79.  Accordingly, based on the record before it, the Court concludes that Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their statutory claims, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. Plaintiffs’ Motion for a Temporary Restraining Order (ECF No. 368) is GRANTED."

KJ

http://lawprofessors.typepad.com/immigration/2017/12/ninth-circuit-to-hear-arguments-in-challenge-to-travel-ban-30.html

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