FOIA Lawsuit Seeks Information On Case-By-Case Waiver of Travel Ban

Last week a Freedom of Information Act lawsuit was filed by three advocacy groups-- Muslim Advocates, Americans United for Separation of Church and State, and Southern Poverty Law Center-- seeking information on the waiver provisions of President Trump's second travel ban executive order.  The complaint (full text) in Muslim Advocates v. U.S. Department of State, (D DC, filed 10/5/2017) reads in part:

On June 27, 2017, Plaintiffs submitted a FOIA request ... seeking specific information related to the waiver provisions of Executive Order 13,780 ... allowing the Commissioner of CBP to determine on a case-by-case basis whether a national from one of the six majority Muslim countries identified in the Second Executive Order may gain entry into the country. These documents and information are critical to Plaintiffs’ ability to assist and advise affected travelers, and to understand the scope of the Second Executive Order’s waiver provision and the extent to which the government has implemented or is implementing its policies in a discriminatory or unconstitutional manner.

President Trump's Sept. 24 Proclamation revising the travel ban contains a similar waiver provision. Muslim Advocates issued a press release announcing the filing of the lawsuit.

Suit Challenges New Version of Trump's Travel Ban As Establishment Clause Violation

Yesterday a lawsuit was filed challenging President Trump's newest iteration of his administration's travel ban.  The complaint (full text) in Iranian Alliances Across Borders v. Trump, (D MD, filed 10/3/2017), contends that the new ban set out in a Presidential Proclamation still targets Muslims in violation of the Establishment Clause, provisions of the Immigration and Nationality Act, and other provisions of the 1st and 5th Amendments.  The complaint alleges in part:

5. In a continuation of his unlawful Muslim ban, on September 24, 2017, President Trump issued the Proclamation, which suspends categorically and indefinitely, without a specified expiration date, the entry into the United States of nationals of five of the six countries included in the Second Executive Order (Iran, Libya, Syria, Yemen, and Somalia), as well as yet another Muslim-majority country (Chad). In an effort to disguise the Proclamation’s targeting of Muslims, the Proclamation adds North Korea, even though virtually no North Korean nationals travel to the United States, and adds Venezuela, but then imposes only limited restrictions on the non-immigrant entry of just a small group of Venezuelan government officials and their immediate family members.

6. Despite President Trump’s attempts to cloak this latest iteration of his Muslim ban in religiously neutral garb by invoking a national security review and including North Korea and Venezuela, the purpose and effect of the Proclamation remain unchanged: to keep Muslims from entering the United States.

In a related lawsuit filed this week, plaintiffs sought to enforce a FOIA request for copies of reports submitted to the President by the Secretary of the Department of Homeland Security.  The reports are cited in the President's Proclamation as the basis for determining which countries should be covered by the new travel ban.  Here is the complaint in the lawsuit, Brennan Center for Justice v. U.S. Department of State, (SD NY, filed 10/2/2017).

Americans United issued a press release announcing the filing of the lawsuits.  The press release includes links to other relevant documents as well.

Trump Issues New, More Targeted Version of Travel Ban

President Trump yesterday issued a Proclamation (full text) (press release) (White House background document) setting out a more targeted version of his travel ban.  The travel restrictions in the prior ban expired yesterday, while the refugee restrictions in the prior ban extend to Oct. 24.  The new ban focuses around a "baseline for the kinds of information required from foreign governments" to allow U.S. vetting of immigrants and non-immigrants. The Administration determined that 7 nations fail to meet these standards: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen, and travel to the U.S. by nationals of those countries is largely banned. (Though restrictions on Venezuela are limited to travel here by government officials.) The Administration also found that Iraq does not meet the baseline standards, but excludes its nationals from new restrictions. A ban is placed on admission of immigrants from Somalia, even though it technically meets the baseline criteria. The Proclamation separately sets out the scope of the restrictions on each of the covered nations, tailoring each to the individual situations. (Fact Sheet; FAQs).

As reported by Reuters, these developments are likely to have an effect on the challenges to the prior travel ban pending in the courts.  The Supreme Court is scheduled to hear oral arguments on those challenges on Oct. 10. (See prior posting.) Yesterday the Administration asked the Supreme Court to consider receiving additional briefs to address the effects of the new Proclamation on the pending cases. Washington Post has additional reporting on the new Presidential Proclamation.

UPDATE: In an Order (full text) dated Sept. 25, the U.S. Supreme Court ruled:

The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The  parties should also address whether, or to what extent, the  scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot.

Pope Criticizes Trump's Action On DACA

Pope Francis yesterday on his way back to the Vatican from his trip to Colombia was sharply critical of President Trump's recent move to repeal DACA. As reported by Newsweek, the Pope said in part:

The president of the United States presents himself as pro-life, and if he is a good pro-lifer, he understands that family is the cradle of life and its unity must be protected.

9th Circuit Affirms Enforceable Scope of Travel Ban

In State of Hawaii v. Trump, (9th Cir., Sept. 7, 2017), the U.S. 9th Circuit Court of Appeals affirmed a federal district court's decision on the scope of President Trump's second travel ban executive order. The court affirmed the lower court's injunction barring enforcement of the Executive Order against

(1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.

Honolulu Star Advertiser has more on the decision.

Challenge To First Travel Ban Is Settled

A Settlement Agreement (full text) has been reached in Darweesh v. Trump, (ED NY, Aug. 31, 2017), one of the challenges to President Trump's now-superseded first travel ban.  As described by the New York Times:

Under the settlement agreement, the federal government is required to identify and send a letter to every individual who was improperly barred from entering the country under the original travel ban, providing a list of free legal services organizations that can help recipients obtain visas or other entry documents. Approval is not guaranteed, but the government agreed to process their applications in good faith.

Injunction Extended To Protect Iraqi Nationals From Immediate Deportation

In Hamama v. Adducci, (ED MI, July 24, 2017), a Michigan federal district court, in a 35-page opinion, issued a new preliminary injunction-- extending the one issued earlier this month-- preventing some 1444 Iraqi nationals with deportation orders from being removed while they attempt to convince immigration courts that their return will subject them to persecution, torture and possible death.  The Iraqis involved are Chaldean Christians, Kurds, and Sunni and Shiite Muslims.  The court said in part:

... all Petitioners will be targeted for torture or death based solely on their association with America.... Further, the perpetrators will not be limited to just ISIS, whose fortunes and influence may wax and wane with time. The record demonstrates that other Sunni groups, Shi’a militias backed by Iran, as well as Iraq’s own internal security forces, harbor  prejudice towards those affiliated with America, which will manifest itself in the form of torture and extrajudicial killings.... All Petitioners are also at risk due to the media coverage of their criminal records.... And it appears that most Petitioners are religious minorities who will face persecution at the hands of ISIS, other sectarian militias, or Iraq’s own forces.

Detroit Free Press reports on the decision.

District Court Broadens Those Still Allowed Entry Under Trump's Travel Ban [UPDATED]

In State of Hawai'i v. Trump, (D HI, July 13, 2017), a Hawaii federal district court held that the government has too narrowly interpreted the U.S. Supreme Court's order that precludes enforcement of President Trump's second travel ban executive order against foreign nationals who have a bona fide relationship with a person or entity in the United States.  The district court held that qualifying close familial relationships include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.  It also held that a refugee seeking entry has a bona fide relationship with a U.S. entity when a resettlement agency has given the refugee assurance that it will provide, or arrange for, reception and placement services to that refugee.  A similar relationship exists for those in the Lautenberg Program for refugee admissions. New York Times reports on the decision.

UPDATE:  As reported by SCOTUSblog, on July 14, the Trump Administration asked the Supreme Court to clarify that the district court's decision is an incorrect interpretation of the Supreme Court's order.  The Supreme Court ordered plaintiffs in the case to file a response to the government's motion for clarification by noon on July 18.

Court Bars Removal of Iraqi Christians and Shiites Until They Get Judicial Hearing

In Hamama v. Adducci, (ED MI, July 11, 2017), a Michigan federal district court issued an injunction barring the enforcement of removal orders against 1,444 Iraqis-- mostly Chaldean, but also other Christians and Shiite Muslims-- until they are given a judicial hearing on their claims that they are entitled to relief from removal because of their status as persecuted religious minorities in Iraq. The injunction extends a temporary suspension of their removal granted by the court last month. (See prior posting.)

While a federal statute-- 8 USC Sec. 1252(g)-- removes federal district court jurisdiction to hear any claim on behalf of an alien arising from action by the Attorney General to execute a removal order against the alien, the court held that enforcing that provision here would be an unconstitutional suspension of the right to habeas corpus. The court said in part:

The mechanism provided by the REAL ID Act for judicial review of removal orders — filing motions to reopen proceedings in immigration courts and subsequent review in the courts of appeals — does not take into account the compelling confluence of grave, real-world circumstances present in our case. This makes relegation to the immigration courts, without a stay from this court in place, an alternative that is neither adequate nor effective.

Without a stay in place, deportations will begin immediately, which may mean a death sentence for some deportees.... Beginning in August 2014, ISIS began carrying out large-scale killings.... Religious minorities were particularly vulnerable to these atrocities, with Christians being given the horrific choice to “pay a protection tax, convert to Islam, or be killed.”... 

While death is certainly the most egregious outcome deportees face, other persecution would also compromise their ability to pursue their removal challenges from foreign shores.... ISIS routinely commits arbitrary executions, torture, and sexual enslavement against religious minorities and those affiliated with the United States....

Detroit Free Press reports on the decision.

Supreme Court Grants Review and Partially Lifts Injunctions Against Trump's Travel Ban

The U.S. Supreme Court today in a per curiam opinion in Trump v. International Refugee Assistance Project, (Sup. Ct., June 26, 2017), granted certiorari and partially lifted the outstanding injunctions against enforcement of President Trump's second travel ban Executive Order.  Under the Court's decision, the 90-day ban on entry of nationals from 6 Muslim-majority nations:

may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.

The Court gave illustrations of the line it was drawing:

For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member ... clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

The Court similarly partially lifted the injunction against enforcement of the suspension of refugee admissions and the lowering of the cap on refugees, saying:

An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, ... the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.....

.... Section 6(a) may not be enforced against an individualseeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000- person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

The Court also ordered that oral arguments in the case be heard during the first session of the October term of the Court. Justice Thomas, joined by Justices Alito and Gorsuch, in a separate opinion dissenting in part said that they would have stayed the preliminary injunctions in full and predicted extensive litigation over what constitutes a bona fide relationship. Washington Post reports on the decision.

Court Temporarily Halts Deportation of 100 Iraqi Chaldeans and Minority Muslims

A Michigan federal district court yesterday issued a 14-day stay of the immediate deportation of over 100 Iraqi nationals who were arrested in immigration raids earlier this month.  Many of those arrested were Chaldeans. (See prior posting.)  In Hamama v. Adducci, (ED MI, June 22, 2017), the court described the claims raised:

Petitioners state that because of their having resided in the United States and their status as religious minorities – many are Christian, others are members of oppressed Muslim sects – they are likely to be persecuted, tortured, or killed by members of the Islamic State in Iraq and Syria, the de facto government in many parts of Iraq. 

The government argues that the district court lacks jurisdiction because of the provisions in 8 USC 1252(g).  The court concluded however:

In light of these complex jurisdictional issues, and the speed with which the Government is moving to remove Petitioners, it is necessary to stay Petitioners’ removal pending the Court’s determination regarding its jurisdiction. 

The ACLU issued a press release announcing the court's decision.

UPDATE: In a June 26 opinion, the court expanded its order to cove all Iraqi nationals in the United States subject to final orders of removal, and extended the temporary order to July 10.

Suit Fights Deportation Using RFRA

KHOU News reports on a lawsuit filed Monday in a Texas federal district court which argues that deporting an El Salvadoran who has been in the United States illegally for over a decade would violate the Religious Freedom Restoration Act. Juan Rodriguez's wife and three daughters are all U.S. citizens.  The lawsuit alleges that Rodriguez's Seventh-Day Adventist beliefs requiring the family to stay together would be violated by his deportation.

ICE Roundup of Chaldean Christians Leads To Lawsuit

Last week ACLU of Michigan sued to stop the deportation of 114 Iraqi nationals, many of whom are Chaldean Christians, who were arrested in immigration raids in metropolitan Detroit. Some of the Iraqis arrested were Shiite Muslims and converts to Christianity, while raids in other states arrested Kurdish and Yezidi Iraqis. According to the complaint (full text) in Hamama v. Adducci, (ED MI, filed 6/15/2017):

U.S. law prohibits the removal of individuals to countries where they would face a likelihood of persecution or torture. Yet despite the clear danger that many of these individuals face in Iraq, ICE is attempting to deport them based on outstanding removal orders that do not take account of intervening changed circumstances which should entitle them to protection. For example, many of the Petitioners are Chaldean Christians, who are widely recognized as targets of brutal persecution in Iraq.... Nonetheless, Chaldeans whose order of removal was entered years ago are now facing removal to Iraq as if nothing has changed, and without any inquiry into the dangers they would currently face.

ACLU in a press release  announcing the filing of the lawsuit says:

The arrests come in the wake of a recent deal between Iraq and the US that removes Iraq from the list of Muslim-majority nations whose citizens could be prohibited from coming to the US under an Executive Order signed by President Donald Trump. In exchange for removal from that list, Iraq has agreed to accept Iraqi nationals sent back to the country by US immigration officials, a sudden reversal of a long-standing policy against repatriation.

As reported yesterday by the Washington Post, evangelist Franklin Graham last week urged the President to look further into the issue in light of Trump's promise earlier this year that he would give priority to persecuted Christians.

Trump Extends Effective Date of Travel Ban To Prevent Case From Becoming Moot

President Trump yesterday issued a Memorandum (full text) designed to prevent a dismissal on mootness grounds of the government's attempt to obtain Supreme Court review of the constitutionality of his second travel ban Executive Order.  The major provisions of the travel ban imposed a 90-day suspension of entry into the country of nationals of six Muslim-majority nations, and a 120-day suspension of the entry of refugees, both to be measured from the March 16, 2017 effective date of the Order.  The new Memorandum issued June 14 provides:

In light of questions in litigation about the effective date of the enjoined provisions and in the interest of clarity, I hereby declare the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.  To the extent it is necessary, this memorandum should be construed to amend the Executive Order.

Lyle Denniston has more on the President's action.

9th Circuit Upholds Most Of Injunction Against Second Travel Ban Without Reaching Establishment Clause Issue

Yesterday in an 86-page per curiam opinion in State of Hawaii v. Trump, (9th Cir., June 12, 2017), the U.S. 9th Circuit Court of Appeals upheld most of the injunction previously issued by an Hawaii federal district court barring enforcement of the major provisions of President Trump's second travel ban Executive Order.  Summarizing its holding the 9th Circuit panel said:

we affirm the injunction as to Section 2(c), suspending entry of nationals from the six designated countries for 90 days; Section 6(a), suspending USRAP for 120 days; and Section 6(b), capping the entry of refugees to 50,000 in the fiscal year 2017.

However the court vacated the injunction to the extent that it prevented the government from conducting inter-agency reviews that do not impact third parties. The court also limited the injunction to government officials other than the President himself.

In its decision, the court did not reach the Establishment Clause arguments. Instead, it relied on statutory grounds:

we conclude that Plaintiffs have shown a likelihood of success on the merits at least as to their arguments that EO2 contravenes the INA by exceeding the President’s authority under § 1182(f), discriminating on the basis of nationality, and disregarding the procedures for setting annual admissions of refugees.

The 3 judges deciding the case were all Clinton appointees. The Justice Department previously asked the Supreme Court to suspend the district court's injunction as the case moves through the entire appellate process.

Justice Department Seeks Supreme Court Review and Stay In Travel Ban Cases [UPDATED]

As reported by the Washington Post, the Justice Department yesterday in two filing with the U.S. Supreme Court sought to overturn lower court decisions invalidating President Trump's second travel ban executive order.  The U.S. filed a petition for certiorari (full text) in Trump v. International Refugee Assistance Project, asking the Supreme Court to grant review of the 4th Circuit's en banc decision (see prior posting) upholding an injunction against enforcement of Section 2(c) of the Executive Order which imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. It also filed a motion (full text) asking the Supreme Court to stay the lower court's injunction while the appeal to the Supreme Court is pending, and asking for expedited consideration of the cert. petition.  Responding to the request for expedited consideration, the Supreme Court on June 2 issued an order calling for respondents to file a response by June 12.

The government also filed an Application for Stay Pending Appeal (full text) in Trump v. State of Hawaii.  The Application asks the Court to stay the preliminary injunction (see prior posting) issued by a Hawaii federal district court while the appeal of that decision is being considered by the 9th Circuit, and to stay it further while any government appeal to the Supreme Court thereafter is pending.The Hawaii decision enjoined enforcement of both Section 2 of the Executive Order (90 day ban on entry into U.S. of nationals of six Muslim-majority nations) and Section 6 (120 day suspension of entry of refugees).

4th Circuit En Banc Upholds Preliminary Injunction Against Trump's Second Travel Ban Executive Order

Today the U.S. 4th Circuit Court of Appeals sitting en banc upheld (with a minor exception) the nationwide preliminary injunction entered by a Maryland federal district court barring enforcement of a major provision of President Trump's second travel ban Executive Order.  By a 10-3 vote, in a series of opinions spanning 205 pages, the Court of Appeals in International Refugee Assistance Project v. Trump, (4th Cir., May 25, 2017), affirmed the award of a preliminary injunction against enforcement of Section 2(c) of the Executive Order which imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. The Court however-- in a step that has little practical significance-- limited the injunction to various cabinet officers and departments and their officers, agents and employees, but lifted the injunction against to the President himself.

The majority opinion, written by Chief Judge Gregory (joined in full by 6 other judges and in part by 2 more (with one judge joining only in the judgment), focused on the Establishment Clause.  The Court said in part:

The question for this Court, distilled to its essential form, is whether the Constitution ... 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.

Judge Keenan joined by Judge Thacker filed a concurring opinion indicating that they would also uphold the preliminary injunction because the President failed to make adequate finding as required under 8 U.S.C. § 1182(f) before he can exclude a group of aliens that entry of that group of aliens would be detrimental to the interests of the United States.

Judge Wynn filed a concurring opinion indicating that he would also find that the Executive Order exceeded the President's authority under the Immigration Act.  Judge Thacker also filed a concurring opinion, stating that he concurred even though he would not consider statements made by candidate Trump before he took the oath of office as relevant.

Judges Niemeyer, Shedd and Agee, each writing a dissenting opinion concurred in by the others. The opinions, among other things, objected to the consideration of campaign statements "to recast a later-issued executive order," and argued that plaintiffs lacked standing.

The Washington Post reporting on the decision notes:

All of the judges in the majority were placed on the court by Democratic presidents and the three dissenting judges ... were all nominated to the bench by Republican presidents.

UPDATE: Attorney General Jeff Sessions announced on Thursday that the government will seek review of the decision in the U.S. Supreme Court.

9th Circuit Hears Oral Arguments On Second Trump Travel Ban Executive Order

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in State of Hawaii v. Trump, (Docket No. 17-15589).  In the case, a Hawaii federal district court issued a nationwide temporary injunction against enforcement of key portions of  President Trump's second "travel ban" Executive Order. (See prior posting.) As reported by the New York Times, at issue in the arguments are whether the Executive Order can be considered a "Muslim ban" that violates the Establishment Clause.

4th Circuit En Banc Hears Oral Arguments On Trump's Second Travel Ban

Today the U.S. 4th Circuit Court of appeals sitting en banc  (13 judges) heard oral arguments (audio of oral arguments from C-Span) in International Refugee Assistance Project v. Trump.  In the case, a Maryland federal district court granted a nationwide preliminary injunction barring enforcement of Section 2(c) of President Trump's second travel ban executive order. That section of the Executive Order imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The district court concluded that there is a likelihood that the travel ban violates the Establishment Clause. (See prior posting.) Washington Post reports on the oral arguments, saying in part:

... [J]udge after judge during an extraordinary two-hour hearing asked Acting Solicitor General Jeffrey B. Wall about statements during the presidential campaign and afterward in which Trump talked about a Muslim ban.

Wall said the order for a 90-day ban on foreign travelers from certain countries was simply to protect the country by increasing the vetting of those who are potentially dangerous. That is not only within the president’s authority, Wall said, it is his responsibility.

But Judge Barbara Milano Keenan said that could mean a candidate for president could call for a Muslim ban every day for a year, enact a cleverly worded plan that accomplished that on his first day in office, and have courts ignore whether that was his real purpose.

Under intense questioning, Wall acknowledged it could violate the Constitution to single out a religion for adverse treatment, but said Trump’s revised executive order was neutral.

FOIA Suit Seeks Information On Border Searches of Muslims

A Muslim advocacy organization this week filed a Freedom of Information Act suit in federal district court.  The complaint (full text) in Muslim Advocates v. U.S. Department of Homeland Security, (D DC, file 5/2/2017) alleges that plaintiff is seeking:

documents and information relating to the government’s border searches of electronic devices in the possession of persons from the seven Muslim-majority countries covered by President Donald Trump’s January 27, 2017 Executive Order, in addition to its border searches of electronic devices in the possession of persons – including U.S. citizens – whom U.S. Customs and Border Protection (“CBP”) agents perceived to be Muslim. As discussed widely in news reports, these searches – which may include the physical retention of an individual’s electronic devices and demand for their passwords – appear to have dramatically increased following the issuance of the Executive Order.

Courthouse News Service reports on the lawsuit.