“DETROIT (AP) — A judge on Thursday temporarily halted the deportation of more than 100 Iraqi Christians living in the Detroit area who fear torture and possible death if sent back to Iraq.
U.S. District Judge Mark Goldsmith said in a written order that deportation is halted for 14 days while he decides if his court has jurisdiction to hear their plight.
The Justice Department had argued that the detainees, including many who were recently rounded up after decades in the U.S., must go to immigration court to try to remain in the U.S., not U.S. District Court. But the American Civil Liberties Union said they might be deported before an immigration judge can consider their requests to stay.
Goldsmith heard arguments Wednesday. He said he needs more time to consider complex legal issues.
Potential physical harm “far outweighs any conceivable interest the government might have in the immediate enforcement of the removal orders before this court can clarify whether it has jurisdiction to grant relief to petitioners on the merits of their claims,” Goldsmith said.
Most of the 114 Iraqis are Chaldean Christians, but some are Shiite Muslims and converts to Christianity. They were arrested on or about June 11 and the U.S. Immigration and Customs Enforcement said all have criminal convictions.
Iraq recently agreed to accept Iraqi nationals subject to removal from the U.S.
“The court took a life-saving action by blocking our clients from being immediately sent back to Iraq,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said in a release. “They should have a chance to show that their lives are in jeopardy if forced to return.”
Besides the 114 arrested in the Detroit area, 85 other Iraqi nationals were arrested elsewhere in the country, according to ICE. As of April 17, there were 1,444 Iraqi nationals with final orders of removal from the U.S. Eight already have been returned to Iraq.
The detainees include Louis Akrawi, who served more than 20 years in Michigan prisons for second-degree murder. He was accused of arranging a shooting that killed an innocent bystander in 1993.
“He’s 69 years old, he has two artificial knees, and he needs surgery on both eyes. Sending him back to Iraq is unfair,” his son, Victor Akrawi, told The Detroit News.”
Perhaps, Evangelical Christians who supported Trump thought they would get a break. But, in this particular operation, being a Christian doesn’t seem to have helped. Muslims are also being removed.
Daniel Beekman writes in the Seattle Times:
“The United Nations defines a refugee as someone forced to flee his or her country because of persecution, war or violence.
He or she has a well-founded fear of being targeted for reasons of race, religion, nationality, political opinion or membership in a particular social group.
A refugee can be an adult or a child.
Julie Wong was 10.
“It couldn’t have been longer than a football field from where we were hiding to that ship, but I remember what I saw along the way,” Wong said of the night she left the Vietnamese city Danang in 1975.
“We had to step over dead bodies. Bicycles. Suitcases. People’s lives strewn all around.”
Wong is 52 and lives with her husband in Sammamish. Their sons play football. She works for a pharmaceutical company as an oncology diagnostic consultant.
She cried when she talked about Danang being shelled and the refugee camp near San Diego where she took English classes.
She doesn’t usually talk about those things. Most people never ask, and she doesn’t feel the need to tell. She leads a busy life as a proud American.
But when Wong sees Syrian refugees on the news, running for their lives, she’s reminded of her own story.”
Read about Wong and five other Americans from refugee backgrounds at the link’
Rachel Weiner reports:
“When Yousif Al Mashhadani came to the United States as a refugee in 2008, he told officials he had been kidnapped in his native Iraq because of his anti-corruption efforts and wanted to come to America for his own safety.
Now, prosecutors in the Eastern District of Virginia say Al Mashhadani lied about being kidnapped and about his own connection to a vicious kidnapper.
On Tuesday, Al Mashhadani, his brother Adil Hasan, and Hasan’s wife, Enas Ibrahim, appeared in court on charges of naturalization fraud.
All three live in Fairfax County; they moved here from Iraq in 2008. But when they applied to become lawful permanent U.S. residents, none of them acknowledged a relationship to Majid Al Mashhadani, a convicted kidnapper who is Yousif Al Mashhadani and Hasan’s brother, an affidavit from FBI agent Sean MacDougal said.”
Obviously, the defendants are innocent until proven guilty. But, if the Government does prove these charges, then these three individuals have not only compromised the integrity of the U.S. refugee system, but also endangered the lives of many Iraqis who legitimately qualify for protection, but are caught up in the anti-refugee hysteria being promoted by the Trump Administration. Cases like this damage the chances of all legitimate refugees to receive the life-saving protection which they need and deserve.
I’d also like to put in a good word for the DHS criminal enforcement operation. Taking apart complicated cases like this and developing them into viable criminal prosecutions takes skill, sophisticated knowledge, perseverance, and dogged attention to detail.
My personal experience has been that the DHS generally does an outstanding job of ferreting out and prosecuting refugee and asylum fraud, even when, as here, the cases takes years to develop. Then, cases that shouldn’t have been granted are reopened, status is revoked, and removal proceedings are instituted.
During my time at the Arlington Immigration Court, the DHS and the U.S. Attorney’s Office in Alexandria “broke” major asylum fraud cases relating to Indonesians and Cameroonians. The principals went to jail and those who knowingly participated in the fraud had their status revoked and were removed from the United States. So, in the end, the DHS did their job well, and justice was served.
As a judge, I was an adjudicator, not an investigator. So, I appreciated the investigative skills of those who brought the truth to light and thereby helped us keep our system honest.
Here’s the key “Establishment Clause” portion of Judge Theodore D. Chuang’s decision in International Refugee Assistance Project v. Trump:
B. Establishment Clause
Plaintiffs assert that the travel ban on citizens from the Designated Countries is President Trump’s fulfillment of his campaign promise to ban Muslims from entering the United States. They argue that the Second Executive Order therefore violates the Establishment Clause. The First Amendment prohibits any “law respecting an establishment of religion,” U.S. Const. amend. I, and “mandates governmental neutrality between religion. and religion, and between religion and nonreligion,” Epperson v. Arkansas, 393 U.S. 97, 104 (1968). When a law does not differentiate among religions on its face, courts apply the test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). See Hernandez v. C.IR., 490 U.S. 680, 695 (1989). Under the Lemon test, to withstand an Establishment Clause challenge (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster’ an excessive government entanglement with religion. ‘” Id. at 612-613 (quoting
Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970)). All three prongs of the test must be satisfied. Edwards v. Aguillard, 482 U.S. 578, 583 (1987).
The mere identification of any secular purpose for the government action does not satisfy the purpose test. McCreary Cty. v. Am. Civil Liberties Union a/Ky., 545 U.S. 844,860,865 n.13
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 26 of 43
(2005). Such a rule “would leave the purpose test with no real bite, given the ease of finding some secular purpose for almost any government action.” Id. (“[A]n approach that credits any valid purpose . . . has not been the way the Court has approached government action that implicates establishment.” (emphasis added)). Thus, although governmental statements of purpose generally receive deference, a secular purpose must be “genuine, not a sham, and not merely secondary to a religious objective.” Id. at 864. If a religious purpose for the government action is the predominant or primary purpose, and the secular purpose is “secondary,” the purpose test has not been satisfied. Id. at 860, 862-65; see also Edwards, 482 U.S. at 594 (finding a violation of the Establishment Clause where the “primary purpose” of the challenged act was “to endorse a particular religious doctrine”).
An assessment ofthe purpose of an action is a “common” task for courts. McCreary, 545 U.S. at 861. In determining purpose, a court acts as an “objective observer” who considers “the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act.” McCreary, 545 U.S. at 862 (internal quotation marks omitted) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)). An “understanding of official objective” can emerge from “readily discoverable fact” without ”judicial psychoanalysis” of the decisionmaker. Id.
Plaintiffs argue that the Second Executive Order fails the purpose prong because there is substantial direct evidence that the travel ban was motivated by a desire to ban Muslims as a group from entering the United States. Plaintiffs’ evidence on this point consists primarily of public statements made by President Trump and his advisors, before his election, before the issuance of the First Executive Order, and since the decision to issue the Second Executive Order. Considering statements from these time periods is appropriate because courts may
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 27 of 43
consider “the historical context” of the action and the “specific sequence of events” leading .up to it. Edwards, 482 U.S. at 594-95. Such evidence is “perfectly probative” and is considered as a matter of “common sense”; indeed, courts are “forbid[ den] … ‘to tum a blind eye to the context in which [the] policy arose.”’ McCreary, 545 U.S. at 866 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000)); cf Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267-68 (1987) (including the “historical background of the decision,” the “specific sequence of events leading up [to] the challenged decision,” and “contemporary statements of the decisionmaking body” as factors indicative of discriminatory intent), cited with approval in Edwards, 482 U.S. at 595.
One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage. This presents no incongruity, however, because purpose matters.
McCreary, 545 U.S. at 866 n.l4.
Specifically, the evidence offered by Plaintiffs includes numerous statements by
President Trump expressing an intent to issue a Muslim ban or otherwise conveying anti-Muslim sentiments. For example, on December 7, 2015, then a Republican primary candidate, Trump posted a “Statement on Preventing Muslim Immigration” on his campaign website “calling for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” J.R. 85. In a March 9, 2016 interview with CNN, Trump professed his belief that “Islam hates us,” and that the United States had “allowed this propaganda to spread all through the country that [Islam] is a religion of peace.” J.R. 255-57. Then in a March 22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration, explaining that his call for the ban had gotten “tremendous support” and that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 28 of 43
into the country.” J.R. 261. On December 21, 2016, when asked whether a recent attack in Germany affected his proposed Muslim ban, President-Elect Trump replied, “You know my plans. All along, I’ve proven to be right. 100% correct.” J.R.245. In a written statement about the events, Trump lamented the attack on people “prepared to celebrate the Christmas holiday” by “ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad.” J.R. 245.
Significantly, the record also includes specific statements directly establishing that Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims. In a July 24, 2016 interview on Meet the Press, soon after becoming the Republican presidential nominee, Trump asserted that immigration should be immediately suspended “from any nation that has been compromised by terrorism.” J.R. 219. When questioned whether his new formulation was a “rollback” of his call for a “Muslim ban,” he described it as an “expansion” and explained that “[p]eople were so upset when I used the word Muslim,” so he was instead “talking territory instead of Muslim.” J.R. 220. When President Trump was preparing to sign the First Executive Order, he remarked, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all know what that means.” J.R. 142. The day after the First Executive Order was issued, Mayor Giuliani appeared on Fox News and asserted that President Trump told him he wanted a Muslim ban and asked Giuliani to “[s]how me the right way to do it legally.” J.R. 247. Giuliani, in consultation with others, proposed that the action be “focused on, instead of religion … the areas of the world that create danger for us,” specifically “places where there are [sic] substantial
evidence that people are sending terrorists into our country.” J.R.247-48. These types of public
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 29 of 43
statements were relied upon by the Eastern District of Virginia in enjoining the First Executive Order based on a likelihood of success on an Establishment Clause claim, Aziz, 2017 WL 580855, at *11, and the Ninth Circuit in concluding that an Establishment Clause claim against that Order raised “serious allegations” and presented “significant constitutional questions.” Washington, 847 F.3d at 1168.
These statements, which include explicit, direct statements of President Trump’s animus towards Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the First Executive Order was issued to accomplish, as nearly as possible,
. President Trump’s promised Muslim ban. In particular, the direct statements by President Trump and Mayor Giuliani’s account of his conversations with President Trump reveal that the plan had been to bar the entry of nationals of predominantly Muslim countries deemed to
constitute dangerous territory in order to approximate a Muslim ban without calling it one- precisely the form of the travel ban in the First Executive Order. See Aziz, 2017 WL 580855, at *4 (quoting from a July 17,2016 interview during which then-candidate Trump, upon hearing a tweet stating “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional,” responded “So you call it territories. OK? We’re gonna do territories.”). Such explicit statements of a religious purpose are “readily discoverable fact[s]” that allow the Court to identify the purpose of this government action without resort to “judicial psychoanalysis.” McCreary, 545 U.S. at 862. They constitute clear statements of religious purpose comparable to those relied upon in Glassroth v. Moore, 335 F.3d 1282 (lith Cir. 2003), where the court found that a Ten Commandments display at a state courthouse was erected for a religious purpose in part based on the chief justice stating at the dedication ceremony that “in order to establish justice, we must invoke ‘the favor and guidance of Almighty God. ‘” Id. at 1286, 1296 (“[N]o
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 30 of 43
psychoanalysis or dissection is required here, where there is abundant evidence, including his own words, of the Chief Justice’s purpose.”).
Relying primarily on this record, Plaintiffs asks this Court to issue an injunction against the Second Executive Order on Establishment Clause grounds. In considering this request, the same record of public statements by President Trump remains highly relevant. In McCreary, where the Court was reviewing a third attempt to create a courthouse display including the Ten Commandments after two prior displays had been deemed unconstitutional, it held that its review was not limited to the “latest news about the last in a series of governmental actions” because “the world is not made brand new every morning,” “reasonable observers have reasonable memories,” and to impose such a limitation would render a court “an absentedminded objective observer, not one presumed familiar with the history of the government’s action and competent to learn what history has to show.” McCreary, 545 U.S. at 866.
The Second Executive Order, issued only six weeks after the First Executive Order, differs, as relevant here, in that the preference for religious minorities in the refugee process has been removed. It also removes Iraq from the list of Designated Countries, exempts certain categories of individuals from the ban, and lists other categories of individuals who may be eligible for a case-by-case waiver from the ban. Despite these changes, the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban. The Trump Administration acknowledged that the core substance of the First Executive Order remained intact. Prior to its
issuance, on February 16, 2017, Stephen Miller, Senior Policy Advisor to the President, described the forthcoming changes as “mostly minor technical differences,” and stated that the “basic policies are still going to be in effect.” J.R. 319. When the Second Executive Order was
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 31 of 43
signed on March 6, 2017, White House Press Secretary Sean Spicer stated that “[t]he principles of the [second] executive order remain the same.” J.R. 118. The Second Executive Order itself explicitly states that the changes, particularly the addition of exemption and waiver categories, were made to address ‘judicial concerns,” 2d Order S1(i), including those raised by the Ninth Circuit, which upheld an injunction based on due process concerns, Washington, 847 F.3d at 1156.
The removal of the preference for religious minorities in the refugee system, which was the only explicit reference to religion in the First Executive Order, does not cure the Second Executive Order of Establishment Clause concerns. Crucially, the core policy outcome of a blanket ban on entry of nationals from the Designated Countries remains. When President Trump discussed his planned Muslim ban, he described not the preference for religious minorities, but the plan to ban the entry of nationals from certain dangerous countries as a means to carry out the Muslim ban. These statements thus continue to explain the religious purpose behind the travel ban in the Second Executive Order. Under these circumstances, the fact that the Second Executive Order is facially neutral in terms of religion is not dispositive. See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 699-702 (1994) (holding that a facially neutral delegation of civic power to “qualified voters” of a village predominantly comprised of followers of Satmas Hasidism was a “purposeful and forbidden” violation of the Establishment Clause); cf Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 542 (1993) (holding that a facially neutral city ordinance prohibiting animal sacrifice and intended to target the Santeria faith violated the Free Exercise Clause because “the Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination” and action
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 32 of 43
targeting religion “cannot be shielded by mere compliance with the requirement of facial neutrality”).
Defendants do not directly contest that this record of public statements reveals a religious motivation for the travel ban. Rather, they argue that many of the statements may not be considered because they were made outside the formal government decisionmaking process or before President Trump became a government official. Although McCreary, relied upon by Defendants, states that a court considers “the text, legislative history, and implementation” of an action and “comparable” official acts, it did not purport to list the only materials appropriate for consideration? 545 U.S. at 862. Notably, in Green v. Haskell County Board of Commissioners, 568 F.3d 784 (10th Cir. 2009), the United States Court of Appeals for the Tenth Circuit considered quotes from county commissioners that appeared in news reports in finding that a Ten Commandments display violated the Establishment Clause. Id. at 701. Likewise, in Glassroth, the United States Court of Appeals for the Eleventh Circuit found an Establishment Clause violation based on a record that included the state chief justice’s campaign materials, including billboards and television commercials, proclaiming him to be the “Ten Commandments Judge.” 335 F.3d at 1282, 1284-85, 1297.
Although statements must be fairly “attributed to [a] government actor,” Glassman v. Arlington Cty., 628 F.3d 140, 147 (4th Cir. 2010), Defendants have cited no authority concluding
2 In Hamdan v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006), cited by Defendants, the Court criticized a dissent’s reliance on press statements by senior government officials, rather than the President’s formal written determination mandated by the Uniform Code of Military Justice, to provide justification for the government’s determination that applying court-martial rules to a terrorism suspect’s military commission was impracticable. Id. at 624 & n.52. It did not address what facts could be considered in assessing government purpose under the Establishment Clause, where courts have held that facts outside the specific text of the government decision may be considered. See Edwards, 482 U.S. at 594-95.
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 33 of 43
that a court assessing purpose under the Establishment Clause may consider only statements made by government employees at the time that they were government employees. Simply because a decisionmaker made the statements during a campaign does not wipe them from the “reasonable memory” of a “reasonable observer.” McCreary, 545 U.S. at 866. Notably, the record in Glassroth also included the fact that the state chief justice, before securing election to that position, had made a campaign promise to install the Ten Commandments in the state courthouse, as well as campaign materials issued by members of his campaign committee. Glassroth, 335 F.3d at 1285. Because the state chief justice was the ultimate decisionmaker, and his campaign committee’s statements were fairly attributable to him, such material is appropriately considered in assessing purpose under the Establishment Clause. See id. at 1285; Glassman, 628 F.3d at 147. Likewise, all of the public statements at issue here are fairly attributable to President Trump, the government decisionmaker for the Second Executive Order, because they were made by President Trump himself, whether during the campaign or as President, by White House staff, or by a close campaign advisor who was relaying a conversation he had with the President. In contrast, Defendants’ cited case law does not involve statements fairly attributable to the government decisionmaker. See, e.g., Glassman, 628 F.3d at
147 (declining to consider statements made by members of a church that was alleged to have benefited from government action); Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (lOth Cir. 2008) (declining to consider statements by the artist where the government’s display of artwork is challenged); Modrovich v. Allegheny Cty., 385 F.3d 397, 411 (3d Cir. 2004) (declining to consider statements by a judge and county residents about a Ten Commandments display where the county government’s purpose was at issue).
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 34 of 43
Defendants also argue that the Second Executive Order explicitly articulates a national security purpose, and that unlike its predecessor, it includes relevant information about national security concerns. In particular, it asserts that there is a heightened chance that individuals from the Designated Countries will be “terrorist operatives or sympathizers” because each country is “a state sponsor of terrorism, has’ been significantly compromised by terrorist organizations, or contains active conflict zones,” and those governments are therefore less likely to provide necessary information for the immigrant vetting process. 2d Order ~ 1(d). The Order also references a history of persons born abroad committing terrorism-related crimes in the United States and identifies three specific cases of such crimes. The Order further states that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations.
Plaintiffs argue that the stated national security rationale is limited and flawed. Among other points, they note that the Second Executive Order does not identify examples of foreign nationals from Iran, Libya, Sudan, Syria, or Yemen who engaged in terrorist activity in the United States. They also note that a report from the Department of Homeland Security, Office of Intelligence and Analysis, concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity” and that “few of the impacted countries have terrorist groups that threaten the West.” l.R. 158. Furthermore, they note that the 300 FBI investigations are dwarfed by the over 11,000 counterterrorism investigations at anyone time, only a fraction of which lead to actual evidence of illegal activity. Finally, they note that Secretary of Homeland Security Kelly stated that there are additional countries, some of which are not predominantly Muslim, that have vetting problems but are not included among the banned
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 35 of 43
countries. These facts raise legitimate questions whether the travel ban for the Designated Countries is actually warranted.
Generally, however, courts should afford deference to national security and foreign policy judgments of the Executive Branch. Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010). The Court thus should not, and will not, second-guess the conclusion that national security interests would be served by the travel ban. The question, however, is not simply whether the Government has identified a secular purpose for the travel ban. If the stated secular purpose is secondary to the religious purpose, the Establishment Clause would be violated. See McCreary, 545 U.S. at 864, 866 n.14 (stating that it is appropriate to treat two like acts differently where one has a “history manifesting sectarian purpose that the other lacks”). Making assessments on purpose, and the relative weight of different purposes, is a core judicial function. See id. at 861-62.
In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban. First, the core concept of the travel ban was adopted in the First Executive Order, without the interagency consultation process typically followed on such matters. Notably, the document providing the recommendation of the Attorney General and the Secretary of Homeland Security was issued not before the First Executive Order, but on March 6, 2017, the same day that the Second Executive Order was issued. The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a
secondary post hoc rationale.
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 36 of 43
Second, the fact that the national security rationale was offered only after courts issued injunctions against the First Executive Order suggests that the religious purpose has been, and remains, primary. Courts have been skeptical of statements of purpose “expressly disclaim(ing] any attempt to endorse religion” when made after a judicial finding of impermissible purpose, describing them as a “litigating position.” E.g., Am. Civil Liberties Union of Ky. v. McCreary Cty., 607 F.3d 439, 444, 448 (6t~ Cir. 2010). Indeed, the Second Executive Order itself acknowledges that the changes made since the First Executive Order were to address “judicial concerns.” 2d Order S l(i).
Third, although it is undisputed that there are heightened security risks with the Designated Countries, as reflected in the fact that those who traveled to those countries or were nationals of some of those countries have previously been barred from the Visa Waiver Program, see 8 U.S.C. S 1187(a)(12), the travel ban represents an unprecedented response. Significantly, during the time period since the Reagan Administration, which includes the immediate aftermath of September 11, 2001, there have been no instances in which the President has invoked his authority under S1182(f) or S1185 to issue a ban on the entry into the United States of all citizens from more than one country at the same time, much less six nations all at once. Kate M. Manuel, Congo Research Serv., R44743, Executive Authority to Exclude Aliens: In Brief (2017); l.R. 405-406. In the two instances in which nationals from a single country were temporarily
stopped, there was an articulable triggering event that warranted such action. Manuel, supra, at 10-11 (referencing the suspension of the entry of Cuban nationals under President Reagan after Cuba stopped complying with U.S. immigration requirements and the revocation of visas issued to Iranians under President Carter during the Iran Hostage Crisis). The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 37 of 43
response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.
Finally, Defendants argue that because the Establishment Clause claim implicates Congress’s plenary power over immigration as delegated to the President, the Court need only consider whether the Government has offered a “facially legitimate and bona fide reason” for its action. See Mandel, 408 U.S. at 777. This standard is most typically applied when a court is asked to review an executive officer’s decision to deny a visa. See, e.g., Din, 135 S. Ct. at 2140 (Kennedy, J., concurring); or in other matters relating to the immigration rights of individual aliens or citizens, see Fiallo v. Bell, 430 U.S. 787, 790 (1977). The Mandel test, however, does not apply to the “promulgation of sweeping immigration policy” at the “highest levels of the political branches.” Washington, 847 F.3d at 1162 (holding that courts possess “the authority to review executive action” on matters of immigration and national security for “compliance with the Constitution”). In such situations, the power of the Executive and Legislative branches to create immigration law remains “subject to important constitutional limitations.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (quoting INS v. Chadha, 462 U.S. 919,941-42 (1983)).
Even when exercising their immigration powers, the political branches must choose “constitutionally permissible means of implementing that power.” Chadha, 462 U.S. at 941. Courts have therefore rejected arguments that they forgo the traditional constitutional analysis
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 38 of 43
when a plaintiff has challenged the Government’s exercise of immigration power as violating the Constitution. See, e.g., Zadvydas, 533 U.S. at 695 (rejecting deference to plenary power in determining that indefinite detention of aliens violated the Due Process Clause); Chadha, 462 U.S. at 941-43 (stating that Congress’s plenary authority over the regulation of aliens does not permit it to “offend some other constitutional restriction” and holding that a statute permitting Congress to overturn the Executive Branch’s decision to allow a deportable alien to remain in the United States violated constitutional provisions relating to separation of powers); Washington, 847 F.3d at 1167-68 (referencing standard Establishment Clause principles as applicable to the claim that the First Executive Order violated the Establishment Clause). Thus, although “[t]he Executive has broad discretion over the admission and exclusion of aliens,” that discretion “may not transgress constitutional limitations,” and it is “the duty of the courts” to “say where those statutory and constitutional boundaries lie.” Abourezk, 785 F.2d at 1061.
Mindful of “the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded,” Lynch v. Donnelly, 465 U.S. 668, 694 (1984), the Court finds that the Plaintiffs have established that they are likely to succeed on the merits of their Establishment Clause claim. Having reached this conclusion, the Court need not address Plaintiffs’ likelihood of success on their Equal Protection Clause claim.
Read the full decision here:
Report from HuffPost:
“A federal judge in Hawaii has placed a nationwide hold on key aspects of President Donald Trump’s second attempt at a ban on travel ― a scaled-back version that targeted all non-visa holders from six Muslim-majority countries, as well as a halt on the U.S. refugee resettlement program ― just hours before the new restrictions were to take effect.
U.S. District Judge Derrick Watson said sections of the new travel order likely amounted to a violation of the First Amendment’s establishment clause, which forbids the government from disfavoring certain religions over others.
Watson gave short shrift to the Trump administration’s argument that the new restrictions applied to a “small fraction” of the world’s 50 predominantly Muslim nations ― and thus could not be read to discriminate Muslims specifically.
“The illogic of the Government’s contentions is palpable,” Watson wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”
The judge also discarded the government’s defense that the text of the new executive order was silent on religion, supposedly solving constitutional defects identified by courts with the first order.
“Any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, secondary to a religious objective of temporarily suspending the entry of Muslims,” Watson wrote.”
Here is Judge Watson’s written decision in State of Hawaii v. Trump:
More bad news for the Administration — the Third Circuit has enjoined the removal of an Afghani interpreter with a visa who was denied admission and allegedly “withdrew” his application. Read about it in the WashPost here:
It’s early in the game on the Administration’s uncompromisingly hard line approach to immigration issues. So far, however, they have racked up an impressive string of losses from coast to coast from Article III Judges all across the spectrum.
In other words, the bombastically inappropriate statements made by Trump and his advisors have “poisoned the well,” and the Administration is probably going to find it difficult to “un-poison” it. And, as long as guys like Bannon, Sessions, Miller, and Kobach are calling the shots, that might never happen.
As some have suggested, perhaps the President and his advisors need a type of “Executive Miranda Warnings” before they shoot off their mouths (or their Twitters) in public: “Everything you say (or Tweet) can and will be used against you.”
The next stop for “Travel Ban 2.0” probably will be the 9th Circuit. But, since the Administration already lost there on its appeal of the TRO in State of Washington v. Trump, I wouldn’t hold my breath waiting for the 9th Circuit to lift the TRO. Like President Obama with the “DAPA Fiasco,” President Trump is learning that U.S. District Judges wield considerable power in our system. As one of my colleagues once said, “U.S. District Judges are the last living potentates.”
None of this bodes well for the Administration’s next ill-advised plan — to ramp up removals, increase the use of immigration detention, maximize “expedited removal,” and reduce what’s left of the U.S. Immigration Court to the equivalent of two-shift assembly line workers churning out removal orders. Chances are that the Article III Courts are going to have something to say about that too. And, unless the Administration moderates its approach, it’s not likely to be anything they like.
“President Trump signed a new executive order on Monday [March 6] to ban all refugees from entering the United States for 120 days. The order also cuts the refugee program in half, capping it at 50,000 people for the 2017 fiscal year, down from the 110,000 ceiling put in place under President Obama.
The United States accepted 84,994 refugees from 78 different countries in 2016. The order also temporarily halts new visas for six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.”
There is an “interactive map/chart” in the full article at the link.
“The Trump administration released Monday a revised version of its immigration Executive Order to address the concerns raised in an appeals court decision, but those criticisms were always fundamentally irrational and not based in the text of the Order.”
Read Nolan’s complete article in The Hill at link.
As I indicated in my posts yesterday, the new travel ban appears to me just as bogus as the first one. Rather than being designed to solve a real national security problem, it is fear-mongering designed primarily to rev up public opinion, particularly among Trump’s base, against Muslims and refugees, neither of which pose a significant threat to the U.S. at present.
I noted that the Post “Fact-Checker” has already awarded “Three Pinocchios” to the misleading statistics that Secretary Kelly and AG Sessions cited in their “staged dialogue” asking the President to reimpose the travel ban. And, this is from a President and an Administration that already have pretty much zero credibility.
That being said, I don’t necessarily disagree with Nolan’s bottom line that Trump might well win this one if it even gets to the Supremes. This time, following the advice of Government litigators, he has applied the ban prospectively only to those foreign nationals overseas who have not previously been admitted or already documented to enter the U.S. He’s also eliminated the overt mention of religion.
Given that the standard for overseas visa denials is a “facially legitimate and bona fide reason,” the Administration might well be home free. Although the stated rationale might not stand up to a rigorous examination, it is unlikely that the Supremes, or even most lower Federal Courts, view engaging in a testing of the factual basis for this type of order affecting individuals overseas as something that can properly be adjudicated by Article III judges.
See my previous posts here:
“The situation is different here. Since the United States has no real refugee problem, save one fabricated by Mr. Trump and conservative activists, and no immigrant crime wave, the chief answer has to be on the level of the opinion corridor: Liberal urbanites have to accept that many Americans react to multicultural pieties by finding something else — sometimes their own white identity — to embrace. If there’s a culture war, everyone loses; but history tells us that liberals lose worse.
I believe that liberalism can be preserved only if liberals learn to distinguish between what must be protected at all cost and what must be, not discarded, but reconsidered — the unquestioned virtue of cosmopolitanism, for example, or of free trade. If we are to honor the human rights of refugees, we must find a way to do so that commands political majorities. Otherwise we’ll keep electing leaders who couldn’t care less about those rights.”
Read the entire thought-provoking op-ed at the link.
Jeffrey Toobin writes:
“CNN)For President Trump and his travel ban, the second time may be the charm.
The revised executive order, revealed Monday during a rare joint appearance by three Cabinet members, addresses many of the legal problems that led Trump’s first executive order to be stymied by the courts.
The new order makes plain that holders of green cards and valid visas are now clearly exempt. There is no longer an exception to allow Christian refugees to jump to the head of the line.
The government’s explanation for why it selected the covered countries does not mention religion; rather, the administration says the six countries — down from seven in the previous order — either support terrorism or lack sufficient controls to identify dangerous visitors to the United States. The order also removes Iraq as one of the countries covered by the order.
The courts, which invalidated the original ban, did so, in effect, because they found the order amounted to religious discrimination against Muslims. This new order, unlike the first, makes no mention of the religions of any applicants to come to the United States.
Still, opponents of the order will insist the new rules are merely pretexts — that the new order once again fulfills President Trump’s campaign promise to ban Muslims from entering the United States.”
On the other hand, Lauren Said-Moorhouse reports:
“(CNN)International humanitarian groups have slammed US President Donald Trump’s revised travel ban, which targets six Muslim-majority nations, for sharing many of the same flaws as its predecessor.
Similar to the January order, travel ban 2.0 again prevents citizens from Syria, Iran, Yemen, Libya, Somalia and Sudan from entering the United States for at least 90 days. In this iteration, Iraq is not on the list of barred countries.
The new order, which the Trump administration says is needed to protect the United States from foreign terrorists entering the country, will also suspend the admission of refugees for 120 days and urges US officials to improve vetting procedures for a resettlement program already regarded to be rigorous.
Aid groups, including the International Rescue Committee, or IRC, and Amnesty International USA, quickly condemned the new directive, arguing the ban still does not make the United States any safer.
David Miliband, IRC president and CEO, said in a statement that the revised executive order on immigration “heartlessly targets the most vetted and most vulnerable population to enter the United States.” He added that the new executive order could affect 60,000 people already screened for resettlement in America.
“The ban doesn’t target those who are the greatest security risk, but those least able to advocate for themselves. Instead of making us safer, it serves as a gift for extremists who seek to undermine the United States,” Miliband said.”
For the new Executive Order click here:
For other materials from DHS relating to the travel ban click here:
Matt Zapotosky reports in the Washington Post:
“Barring any last minute changes, President Trump will sign a revised travel ban that exempts current visa holders, according to a person familiar with the matter.
The revision marks a significant departure from the now-frozen first executive order, which temporarily barred refugees and citizens of seven Muslim-majority countries from entering the United States, and resulted in the State Department unilaterally revoking tens of thousands of visas. Justice Department lawyers hope the new order will be more likely to withstand legal challenges and will not leave any travelers detained at U.S. airports.
The new order also removes an exception to the refugee prohibition for religion minorities, the person said. Critics of the order had said that exception proved it was meant to discriminate on the basis of religion, because it allowed only Christians into the country.
The new order, the details of which were first reported by the Wall Street Journal, is expected to be signed Wednesday. The person who described it to The Post did so on the condition of anonymity because the administration had not authorized the release of details.”
I would expect advocates to quickly challenge the new order. If the Administration backs up the order with some evidence supporting its actions, the legal challenges might be more difficult this time around.
UPDATE: NBC News reports Wednesday morning that the White House now says that the new Travel Ban Order will be further delayed.
Dara Lind reports on VOX:
“The first thing President Donald Trump repeals and replaces is going to be his own executive order on immigration.
Both Trump, in a press conference, and the Department of Justice, in a court filing, said Thursday that the president is abandoning the order he signed January 27, banning all visa holders from seven majority-Muslim countries and nearly all refugees from entering the United States.
The ban was only in effect for a week before being put on hold by a federal court — and judges around the country have been less than sympathetic to the administration’s arguments for its constitutionality. President Trump continues to believe the judges’ ruling was “a bad decision.” But he’s buckling to it anyway.”
The Department of Justice asked the full 9th Circuit to hold the case (Washington v. Trump) in abeyance until a new Executive Order is issued. Presumably, the Department will then argue that the new EO “moots” the case and that the full court therefore should vacate the decision of the 9th Circuit panel temporarily restraining the first Executive Order. In other words, there would no longer be a “case or controversy” once the first EO is rescinded.
There may well be challenges to the new Executive Order. We will just have to wait and see what it looks like. Most observers expect that the new order will be limited to individuals who have never entered the United States. It might therefore be more difficult to formulate a successful constitutional challenge.
However a separate suite before Judge Brinkema in the EDVA, Aziz v. Trump, analyzed in earlier blogs, had a “religious discrimination” finding that might have a better chance of applying to those whose relatives or businesses are affected by a new EO.
The full article at the link contains a further link to the relevant section of the Department’s latest filing in the 9th Circuit.
Late Breaking Update:
Reuters reports that the 9th Circuit has agreed to hold action on Washington v. Trump pending “further developments.”
From the Washington Post:
“President Trump said Friday that he is considering rewriting his executive order temporarily barring refugees and citizens of seven Muslim-majority countries from entering the country, indicating that the administration may try to quickly restore some aspects of the now-frozen travel ban or replace it with other measures.
Trump told reporters aboard Air Force One that he would probably wait until Monday or Tuesday to take any action, and White House Chief of Staff Reince Priebus said several options — including taking the case to the Supreme Court — were still on the table.
Trump hinted that the ongoing legal wrangling might move too slowly for his taste, though he thought he would ultimately prevail in court.”
Many commentators have suggested that the Administration could have avoided most of the constitutional issues that have bothered the courts by simply making the order applicable solely to those abroad who have not been admitted to the U.S. as refugees or with visas.
The Solicitor General’s Office at the DOJ (even though there is no appointed “SG” for now, there are plenty of career “Supreme Court pros” on the staff) doesn’t like to “look bad” before the Supreme Court. Normally, the Solicitor General must approve and sign off on all Government filings before the Supreme Court. It’s possible that the SG’s Office thinks that the Administration’s case is unlikely to prevail in its current posture, and is therefore trying to persuade the Administration not to file for Supreme Court review right now.
“The bitter irony is that as Trump proclaims his anti-Islamic State campaign, al-Qaeda is becoming stronger in both Iraq and Syria, warn analysts from the Institute for the Study of War. This is a fight where easy slogans and rushed travel bans aren’t likely to provide a path to victory.”
Indeed, the fiasco that began in the Bush Administration has now put us in a position where we actually need Iran, “the Axis of Evil,” to battle ISIS.