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President’s travel ban heads to the U.S. Supreme Court

Authors’ Note

On September 24, 2017, as this article was about to go to press, President Trump issued a new travel ban, stating that the March 6 Order had expired by its terms. The Supreme Court cancelled oral argument and asked the parties to brief whether the case is now moot. If the Supreme Court dismisses the case, the administration will ask the Court to vacate the appeals court decisions discussed here. However, the new travel ban continues to raise many of the same concerns presented in the March 6 Order. It bans immigrants based on country of origin, which appears to violate the anti-discrimination provisions of the statutes discussed in the article. Despite adding North Korea and some government officials in Venezuela, the ban continues to focus on citizens of majority-Muslim countries: Iran, Somalia, Chad, Libya, Syria and Yemen. The ban permits some types of temporary travel to the U.S. for citizens of Iran, Somalia, Libya, Chad and Yemen, but it perhaps forever bars the door to obtaining U.S. permanent residence for citizens of these six Muslim-majority countries. The underlying evidence of anti-Muslim animus surrounding the orders will likely be examined again, as the most recent rendition of the travel ban will also face opposition in the courts. 


Where Executive Order 13780 has been and where it’s going

President Trump’s revised March 6 executive order places travel restrictions on foreign nationals from six majority-Muslim countries wishing to visit or immigrate to the United States and seeks to suspend the admission of refugees from around the world. In this article, the authors examine the contents of the order, explain why it’s unlikely to be a temporary measure, and analyze its reception to date in U.S. appellate courts. 

Just before leaving on summer recess, the U.S. Supreme Court in a per curiam opinion partially revived President Donald Trump’s Executive Order 13780, more commonly known as the travel ban (the March 6 Order), which temporarily bars entry into the United States of refugees worldwide and certain nationals of Libya, Iran, Syria, Sudan, Somalia, and Yemen, modifying the injunctions imposed by the courts below. The Court also accepted certification on the substantive legal arguments raised by the March 6 Order, setting the case for oral argument during the first session of October Term 2017.1

In partially renewing the ban, the Court held that the 9th and 4th Circuits had erred in part in issuing the injunctions because they enjoined enforcement beyond the plaintiffs and persons similarly situated to the plaintiffs.2 Until it rules on the merits in the fall term, the Court granted the administration’s
requested stay in part, to allow entry only to refugees and foreign nationals of the six designated majority-Muslim countries otherwise subject to the ban “who have a credible claim of a bona fide relationship with a person or entity in the United States.”3 The Court’s decision thereby revived and made immediately relevant the terms of March 6 Order with its limited exceptions and waivers.

The March 6 Executive Order

The March 6 Order was the second attempt by President Trump to issue a travel ban. In his first attempt, President Trump signed Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” on January 27, 2017 (the January 27 Order). Therein, the president ordered the immediate denial of entry of nationals of seven predominantly Muslim countries (Libya, Iran, Iraq, Syria, Sudan, Somalia, and Yemen) for 90 days in an unprecedented fashion that raised significant legal and constitutional concerns. The January 27 Order also suspended the admission of refugees worldwide for 120 days and of Syrian refugees indefinitely.4 It reduced the number of refugees to the U.S. for fiscal year 2017 from 110,000 to 50,000.5 It also carved out an exception from the ban for refugees facing religious persecution if they belong to a religious minority in their country of nationality.6 Court challenges immediately followed, and a temporary restraining order (TRO) from the Federal District Court in Washington state blocked the order nationwide.7

On March 6, 2017, the president regrouped and issued Executive Order 13780, which revoked and replaced the prior order as of March 16, 2017. The March 6 Order continues to suspend the entry for at least 90 days of nationals from the same countries listed in the January 27 Order, except for Iraq, which is no longer included in the ban.8 Unlike its predecessor, it specifically excludes from the ban lawful permanent residents, those entering on advanced parole, dual nationals, those already granted asylum in the U.S., and refugees who had already been admitted to the U.S.9 It continues to reduce the number of refugees for fiscal year 2017 to 50,000 and suspends the refugee program for at least 120 days, but it no longer contains the religious minority exception and it no longer singles out Syrian refugees to be banned indefinitely.10

The March 6 Order states that the 90-day suspension on admission of nationals from the six predominantly Muslim countries is necessary to “temporarily reduce investigative burdens on relevant agencies”11 as they “conduct a worldwide review to identify what additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit… in order to determine that the individual is not a security threat.”12 The order cites country conditions in these six countries as the basis for their selection.13

Regarding the 120-day suspension of admission of refugees worldwide, the heads of certain executive agencies are directed to review the current U.S. Refugee Admissions Program application and adjudication processes, to determine the additional procedures that should be required.14 The current vetting process for refugees to the United States takes 18 to 24 months, and a refugee who has been approved for resettlement in the United States has been reviewed by: 1) the UN High Commissioner for Human Refugees; 2) the National Counterterrorism Center; 3) the FBI; 4) the Department of Homeland Security; 4) the Department of Defense; 5) the Department of State; and 6) the U.S. intelligence community.15

Practical implications of the travel ban: Who is subject

With the Supreme Court partially reviving the ban, visa applicants from the six designated countries and refugees must demonstrate either a bona fide qualifying family relationship with a person or a relationship with an entity (i.e., business or university) not created to evade the travel ban.16 The suspension is subject to a number of exceptions for people with current visas, lawful permanent residents, people traveling on advanced parole, dual nationals who travel on the passport of a country not subject to suspension, and asylees and refugees previously admitted to the U.S.17 The administration confirmed that citizens of the six countries with valid visas may travel to the U.S. even if the visa was issued during the period that the March or January orders were enjoined, and no visas are to be revoked. It also does not apply to people who had a valid visa (which later expires) as of January 27, 2017.18

The administration defined a qualifying family relationship initially to include: parents (including parents-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, and siblings, whether whole or half, and including step relationships.19 They then amended the list to include fiancés.20 Grandparents, aunts, uncles, brothers- and sisters-in-law, and cousins were not included.21

The U.S. District Court in Hawaii modified its preliminary injunction on July 13, 2017, stating that the travel ban cannot be enforced against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States, and it also cannot be used against refugees who have a formal assurance from a resettlement agency in the U.S.22 The Supreme Court then issued an order on July 19, 2017, in effect agreeing in part to incorporate the additional qualifying family relationships, but staying and not exempting from the ban refugees with a formal assurance from a resettlement agency in the U.S.23

The March 6 Order allows in theory for those from the banned countries without a qualifying relationship to apply for a waiver on a case-by-case basis as a matter of discretion. To qualify for a waiver, the person must establish to the consular officer or border officer’s satisfaction that not being allowed to enter the U.S. will cause “undue hardship,” that he or she does not present a security threat, and that entry is in the “national interest.”24

It remains to be seen how these guidelines will be applied. When the administration applied the January 27 Order, the National Visa Center front-desked applications, and nationals of the banned countries who had visa interview dates at consulates were told that their interviews were cancelled. The January 27 Order also allowed for an officer to grant entry on a case-by-case basis if “in the national interest,”25 but in practice, there was no way to get in front of the officer to make one’s case.

90-day ban potentially only the beginning

Although framed as a “temporary” ban to allow the administration to put in place a program of “extreme vetting,” the January 27 Order and the March 6 Order are not designed to be temporary. Under the January 27 Order, the president would have issued a proclamation on April 27, 2017, listing the countries that had failed to provide the additional information necessary for extreme vetting, and the ban on entry of nationals from these countries would remain in place.26 The March 6 Order similarly contemplated that 70 days from March 16 (May 25), the president would issue a proclamation regarding the countries that remain subject to the ban.27 President Trump issued an order on June 14, 2017, which states that this 70 days runs from the day that the injunctions are lifted or stayed. Now that the injunctions are lifted in part as of June 26, the 70 days would appear to be running, and per the terms of the March 6 Order, a proclamation should be issued in September regarding country status. In addition, the 120-day ban on refugees would appear to run through late October, but can be similarly extended.28

The Supreme Court has specifically asked the parties to brief whether the issues raised by the 90-day ban for the six designated countries became moot as of June 14, 2017 (by the terms of the order, its effective date was March 16, 2017, and the 90 days would have ended on June 14, 2017). It appears that the government will assert that the ban continues to run, as its June 14 Order extended the end date and the timeline. In terms of mootness, the Court may find that the 90 days and 120 days respectively will have run their course prior to oral argument, but it appears likely that additional proclamations will be added to the original orders, which could keep issues alive, if the cases become moot.

The 9th and 4th Circuit decisions up for Supreme Court review

The decisions in the 9th and 4th Circuits that are the subject of the Supreme Court’s review both found that President Trump had exceeded his authority in issuing the ban, but the grounds differ considerably. The 9th Circuit found that President Trump exceeded his statutory authority under the Immigration and Nationality Act (INA) by issuing the broad and sweeping March 6 Order, and did not reach the constitutional Establishment Clause issue. The 4th Circuit met the Establishment Clause claim head on and found the March 6 Order violated the 1st Amendment.

9th Circuit: The president exceeded authority delegated by Congress

In Hawaii v. Trump, the 9th Circuit found that while the Immigration and Nationality Act gives the president broad powers to control the entry of foreign nationals and to protect the American public, “immigration, even for the President, is not a one-person show.”29 It held that the president’s authority is subject to certain statutory and constitutional restraints, and in issuing the March 6 Order, he exceeded the authority delegated to him by Congress.30 The 9th Circuit determined that because plaintiffs had shown a likelihood of success on the merits of their statutory claim, the court need not, and did not, reach the Establishment Clause claim to resolve the appeal, citing the long-held tenet that if a case can be decided on either of two grounds, one involving a constitutional question and the other a question of statutory construction, the court will decide only the latter.31

The 9th Circuit held that in suspending more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the president had not made a sufficient finding that the entry of these classes of people would be detrimental to the United States, had violated the prohibition against nationality-based discrimination contained in the INA, and had not followed the specific process required under the relevant statute when resetting the annual cap on the admission of refugees.32 Accordingly, the 9th Circuit largely affirmed the district court’s preliminary injunction, vacating the part that prevented the government from conducting internal reviews of its own processes.33

The 9th Circuit held that President Trump exceeded his authority specifically by using it inconsistently with the terms of 8 USC §1182(f) and other immigration laws established by Congress.34 8 USC §1182(f) allows the president to suspend the entry of people or groups when he finds that entry of those people or groups “would be detrimental to the interests of the United States.”35 The court acknowledged that this is a broad power delegated to the president, but it must be read consistently with the rest of the INA and it is not without constitutional constraints.36

Because the order touches upon Congress’s Article I Section 8 power to set immigration laws and policy, President Trump’s order must be consistent with Congress’s delegated authority in §1182(f).37 The court found that President Trump must by the terms of §1182(f) make a sufficient finding that admission of the nationals of the six countries and all refugees would be detrimental to the national interest, which the court found the administration had not done.38 The 9th Circuit found the president’s “talismanic incantation” of “national security” to be unsupported by the facts for a sweeping ban.39 Even if this deficiency were corrected, President Trump also must use the authority consistent with the rest of INA. Particularly, President Trump’s use of §1182(f) to prevent entry of radical terrorists is inconsistent with Congress’ rules of inadmissibility related to terrorism in INA 212(a)(3)(B).40

In addition, the court found that the president’s use of §1182(f) directly conflicted with the antidiscrimination provisions established by Congress in the INA, since the order seeks to ban the issuance of immigrant visas for nationals of the six named countries. Congress has made clear regarding the issuance of immigrant visas that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s… nationality, place of birth, or place of residence.”41 Congress listed specific exceptions to §1152(a)(1)’s anti-discrimination prohibition and did not list §1182(f) (President Trump’s basis for the order). Because Congress drafted §1152(a)(1) after §1182(f), under the rules of statutory construction, Congress did not intend for the President to use §1182(f) in a manner inconsistent with its prohibition on discrimination based on nationality, place of birth, or place of residence—which the 9th Circuit held that the March 6 Order, on its face, does.42

4th Circuit: The president violated the Establishment Clause

In IRAP v. Trump, the plaintiffs asserted a central constitutional challenge to the March 6 Order, stating that it violated the Establishment Clause of the 1st Amendment, because statements by President Trump and his advisors indicate that the order is intended to disfavor Muslims. The 4th Circuit, in affirming the lower court’s preliminary injunction, found that plaintiffs had advanced a compelling case that, based on the president’s statements, a reasonable observer would view the March 6 Order as having a religious primary purpose—to ban Muslims—and that plaintiffs were therefore likely to succeed on the merits of their Establishment Clause claim.43

The government asserted in IRAP that the district court applied the wrong test to plaintiffs’ Establishment Clause claim, and that it should have applied the “facially legitimate and bona fide” test set forth by the Supreme Court when addressing a 1st Amendment challenge in the immigration context in Kleindienst v. Mandel.44 The 4th Circuit acknowledged that plaintiffs face a heavy burden due to the deference given to the political branches regarding immigration policy, and in the typical case, it would be difficult to make an affirmative showing of bad faith with the “plausibility and particularity” necessary to demonstrate that the challenged governmental action was not “bona fide.”45

The court found, however, that in the instant case there was ample evidence for the plaintiffs’ claim that the facially legitimate basis for the order, the “national security” basis, was a pretext for what really is an anti-Muslim religious purpose.46 The plaintiffs pointed to the following: “then-candidate Trump’s numerous campaign statements expressing animus toward the Muslim faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting ‘territories’ instead of Muslims directly; the issuance of [the January 27 Order], which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of [the March 6 Order], which resembles the [January 27 Order] and which President Trump and his advisors described as having the same policy goals as [the January 27 Order].”47

Having determined that the measure failed Mandel’s “bona fide” prong, the 4th Circuit then applied the longstanding Lemon v. Kurtzman test for Establishment Clause claims and found the government failed this test as well.48 To prevail under the Lemon test, the government must demonstrate that the challenged action:1) “ha[s] a secular legislative purpose,” 2) that “its principal or primary effect [is] one that neither advances nor inhibits religion,” and 3) that it does “not foster ‘an excessive government entanglement with religion.’”49

Applying the Lemon test to the case at hand, the 4th Circuit held that the government failed to establish the first prong of the test, which requires the primary purpose of the action be secular. Instead, the 4th Circuit found that “[t]he evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that [the March 6 Order’s] primary purpose is religious.”50

The IRAP case also includes a vigorous dissent, stating that Mandel controls, and as the order on its face is entirely without constitutional fault, there is no viable Establishment Clause claim. This dissent also holds that the order was a valid exercise of the president’s authority under 8 USC §1182(f), as he found that admission would be “detrimental to the interests of the United States” and that is all that is required.51

The last chapter on the travel ban has yet to be written as the administration advances with its limited ban and Supreme Court’s review of the 9th and 4th Circuit Court rulings await.
Stay tuned.


CAROLINE OSTROM is the immediate past chair of the American Immigration Lawyers Association—Minnesota and Dakotas Chapter and an attorney at Ostrom & Peterson, LLC.

GEORGE C. MAXWELL is the Vice Chair of the American Immigration Lawyers Association—Minnesota and Dakotas Chapter and an attorney at Borene Law Firm PA. 


Notes

1 Trump v. IRAP, Nos. 16-1436 (16A1190) and 16-1540 (16A1191), slip op at 9, 582 U.S. ___ (6/26/2017) (per curiam).

2 Id.

3 Id.at 12-13.

4 January 27 Order, Sections 5(a); 5(c).

5 January 27 Order, Section 5 (d).

6 January 27 Order, Section 6(e).

7 State of Washington v. Trump, Case No. C17-0141JLR, Order, at 4-5 (W.D. Wash. 2/3/2017).

8 March 6 Order, Section 2(c).

9 March 6 Order, Section 3(a).

10 March 6 Order, Section 6(b).

11 March 6 Order, Section 2(c).

12 March 6 Order, Section 2(a).

13 March 6 Order, Section 2(f).

14 March 6 Order, Section 6(a).

15 Hawaii v. Trump, No 17-15589, slip op. at 45, fn 17, — F.3d –, (9th Cir. 6/12/2017) (per curiam).

16 Trump v. IRAP, slip op at 12, 582, U.S. ___.

17 Department of State Cable, June 28, 2017, Section 10.

18 Id.

19 Department of State FAQ on Executive Order on Visa, dated 6/29/2017.

20 Department of State FAQ on Executive Order on Visa dated 6/29/2017 (revised version).

21 Id.

22 Hawaii v. Trump, CV N.17-00050 DKW-KSC, Order, 7/13/2017, at 11-15.

23 Trump v. IRAP, 582 U.S.___, Order in Pending Case, 7/19/2017.

24 March 6 Order, Sections 3(c); 6(c).

25 January 27 Order, Sections 3(g); 5(e).

26 January 27 Order, Section 3(e).

27 March 6 Order, Section 2(e).

28 March 6 Order, Section 6(a).

29 Hawaii v. Trump, No. 17-15589, slip op. at 2. – F.3d –, (9th Cir. 6/12/2017) (per curiam).

30 Id.

31 Id. at 15.

32 Id. at 2-3.

33 Id. at 78.

34 Id. at 55.

35 8 U.S.C. §1182(f).

36 Hawaii v. Trump, No. 17-15589, slip op at 2.

37 Id. at 33-34.

38 Id. at 36.

39 Id. at 39.

40 Id. at 61-62.

41 8 U.S.C. §1152(a)(1).

42 Hawaii v. Trump, No.17-15589, slip op. at 52-53.

43 IRAP v. Trump, No. 17-1351, slip op. at 2, – F.3d – (4th Cir. 5/25/2017).

44 Id. at 45.

45 Id. at 49-50.

46 Id. at 52.

47 Id. at 51-52.

48 Id. at 70.

49 Id. at 54.

50 Id. at 56.

51 Id. at 165.

 

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