Supreme Court Will Hear Oral Arguments In Travel Ban Case Today

The U.S. Supreme Court will hear oral arguments this morning in Trump v. Hawaii, a challenge to the legality of the most recent version of President Trump's controversial "travel ban."  As explained by this argument preview from SCOTUSblog, as well as this New York Times preview, one of the major questions that the Court will face is whether Donald Trump's anti-Muslim statements  during his campaign for office, and his Tweets while in office, should be considered in deciding whether his later executive action violates the Establishment Clause. SCOTUS blog's case page has links to the numerous briefs filed in the case, as well as to commentary and other primary source documents.  I will post a link to the transcript of the oral argument when it becomes available later today.

Update On Third Travel Ban Developoments

The Supreme Court will hear oral arguments on April 25 in Trump v. Hawaii, a group of challenges, including an Establishment Clause challenge, to President Trump's third travel ban. (See prior posting.) Over 70 amicus briefs have been filed in the case.  Links to them are on SCOTUSblog's case page.  Meanwhile, yesterday the White House announced that the President has signed a Proclamation removing Chad from the list of countries covered by the travel ban, saying in part:

Republic of Chad has improved its identity-management and information sharing practices sufficiently to meet the baseline security standard of the United States.  Chad nationals will therefore again be able to receive visas for travel to the United States.

Another 3rd Travel Ban Cert. Petition Filed

As previously reported, last month the U.S. Supreme Court granted certiorari in Trump v. Hawaii, a challenge to the third version of President Trump's travel ban.  In light of that, plaintiffs who were largely successful in a similar challenge in the 4th Circuit (see prior posting) have now filed a petition for certiorari (full text) with the Supreme Court, telling the Court:

The court of appeals denied the cross-appeal below, which argued that the preliminary injunction should not have been limited to individuals with a bona fide relationship with a U.S. person or entity.  This petition seeks certiorari on that question, which is not presented in Hawai‘i. In addition, this petition raises the same four questions already before the Court in Hawai‘i, and requests that the cases be consolidated once again.

Muslim Advocates issued a press release announcing the filing of the cert. petition.

4th Circuit En Banc Says Trump's Third Travel Ban Violates Establishment Clause

The U.S. 4th Circuit Court of Appeals en banc today, in opinions spanning 285 pages, affirmed a Maryland federal district court's grant of a preliminary injunction against the Proclamation setting out the third version of President Trump's travel ban.  In International Refugee Assistance Project v. Trump, (4th Cir. en banc, Feb. 15, 2018), the court by a vote of 9-4 held that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.  Chief Judge Gregory's majority opinion said in part:

[H]ere the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.....

While the majority ultimately concluded that it would not rely on President Trump's pre-election statements in reaching its conclusion, it nevertheless indicated that it would have been permissible to do so:

Perhaps in implicit recognition of the rawness of the religious animus in the President’s pre-election statements, the Government urges us to disregard them. This is a difficult argument to make given that the President and his advisors have repeatedly relied on these pre-election statements to explain the President’s post-election actions related to the travel ban....  [I]n McCreary, the Supreme Court reminded us that “the world is not made brand new every morning.” .... Because “reasonable observers have reasonable memories,” these statements certainly provide relevant context when examining the purpose of the Proclamation.

The majority concluded:

In sum, the face of the Proclamation, read in the context of President Trump’s official statements, fails to demonstrate a primarily secular purpose. To the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective. Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”

Six of the judges would have also found a likelihood of success on at least some of plaintiffs' statutory challenges to the Proclamation. Four concurring opinions and two dissenting opinions were also filed. Pursuant to an earlier U.S. Supreme Court order, the court stayed the injunction pending a petition for certiorari to the Supreme Court. Richmond Times-Dispatch reports on today's decision.

Court Stays Removal Of 50 Indonesian Christians Living In New Hampshire

In Devitri v. Cronen, (D MA, Feb. 1, 2018), a Massachusetts federal district court stayed the deportation of 50 Indonesian Christians living in New Hampshire while they seek to reopen their cases based on changed country conditions. The Indonesians, who had orders of removal issued against them, had been living under a 2010 humanitarian program called "Operation Indonesian Surrender." Last summer the government terminated the program and told petitioners that they would need to return to Indonesia within 60 days.  Petitioners say they are likely to face persecution or torture in Indonesia because of their Christian faith. AP reports on the decision.

Supreme Court Grants Cert. In 3rd Travel Ban Challenge; Asks For Argument on Establishment Clause

The U.S. Supreme Court today issued an order (full text) granting review in Trump v. Hawaii, (Docket No. 17-965, cert. granted 1/19/2018).   In the case, the U.S. 9th Circuit Court of Appeals held that the third version of President Trump's travel ban is inconsistent with the Immigration and Nationality Act, but stayed its injunction pending Supreme Court review. (See prior posting.) While the 9th Circuit avoided ruling on plaintiffs' Establishment Clause claim, the Supreme Court ordered the parties to brief and argue that issue (raised as Question 3 in Hawaii's brief in opposition), as well as the issues raised by the original petition for certiorari.  SCOTUSblog's case page has links to additional primary source material relating to the case.

Government Seeks Supreme Court Review of Third Travel Ban

The Justice Department last week filed a petition for certiorari (full text) in Trump v. State of Hawaii, a challenge to the President's third travel ban.  In the case, the U.S. 9th Circuit Court of Appeals held that the third version of President Trump's travel ban is inconsistent with the Immigration and Nationality Act. (See prior posting.)  The 9th Circuit avoided deciding the question of whether the Proclamation violates the Establishment Clause. SCOTUSblog has more on the cert. petition and the background of the case.

Bond Hearings Ordered For Detained Iraqi Immigrants

As previously reported, in July a Michigan federal district court issued a preliminary injunction preventing Iraqi nationals who are subject to long-standing deportation orders from being removed from the United States while they attempt to convince immigration courts that their return will subject them to persecution, torture and possible death.  Those affected are mostly Chaldean Christians, but some are Kurds and Sunni and Shiite Muslims.  Nevertheless, immigration officials began to arrest and detain some 300 of these Iraqis. 274 remain in custody.  Yesterday in  Hamama v. Adducci, (ED MI, Jan. 2, 2018), the same judge ordered bond hearings for those who have been detained for 6 months or more. Summarizing its more detailed holding, the court said:

Our legal tradition rejects warehousing human beings while their legal rights are being determined, without an opportunity to persuade a judge that the norm of monitored freedom should be followed.  This principle is familiar to all in the context of the criminal law, where even a heinous criminal — whether a citizen or not — enjoys the right to seek pre-trial release.  In the civil context of our case, this principle applies with at least equal force.  In either context, the principle illustrates our Nation’s historic commitment to individual human dignity — a core value that the Constitution protects by preserving liberty through the due process of law.

The court also granted in part plaintiffs' motions for nationwide class certification.  Detroit News reports on the decision.

9th Circuit: Trump's 3rd Travel Ban Violates Immigration Act

In State of Hawaii v. Trump, (9th Cir., Dec. 22, 2017), the U.S. 9th Circuit Court of Appeals, agreeing with the district court (see prior posting), concluded that President Trump's third travel ban is inconsistent with the Immigration and Nationality Act, saying in part:

The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.

The court avoided deciding the question of whether the Proclamation violates the Establishment Clause.  The court also limited the district court's preliminary injunction to foreign nationals who have a bona fide relationship with a person or entity in the United States. Also, as already ordered by the Supreme Court, the 9th Circuit stayed its injunction pending Supreme Court review. Los Angeles Times reports on the decision.

Religious Worker Visa Rule Requiring Compensation Violates Sect's RFRA Rights

In O Centro Espirita Beneficiente Uniao Do Vegetal v. Duke, (D NM, Dec. 15, 2017), a New Mexico federal district court concluded that immigration rules which deny religious worker visas to uncompensated clergy likely place a substantial burden in violation of RFRA on the UDV sect because its theology requires non-compensation of its ministers.  The court issued a preliminary injunction requiring US Citizenship and Immigration Services to reconsider petitions for an R-1 Religious Worker Visa and an I-360 Religious Worker petition without applying those provisions of the rules that require applicants be compensated employees or part of an established missionary program.

4th Circuit En Banc and 9th Circuit Hear Arguments In Challenge To Third Travel Ban

On Wednesday, a 3-judge panel of the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in State of Hawaii v. Trump, a challenge to President Trump's third travel ban Proclamation. In the case a Hawaii federal district court-- without reaching the Establishment Clause question-- issued a nation-wide temporary restraining order barring enforcement of most portions of this latest, more focused, version of President Trump's travel ban.  The court (See prior posting.)  The Hill reports on the arguments.

Yesterday, the U.S. Fourth Circuit Court of Appeals, sitting en banc, heard two hours of arguments (audio of full arguments) in International Refugee Assistance Project v. Trump, another challenge to the same travel ban Proclamation.  In the case, a Maryland federal district court held that the Proclamation violates provisions of the Immigration and Nationality Act that prohibit denial of immigrant visas on the basis of nationality, and that, like the prior two bans, the third travel ban also violates the Establishment Clause. (See prior posting.)  The Hill reports on the arguments.

Earlier this week, the U.S. Supreme Court granted a stay of the preliminary injunction while appeals are pending in both cases.  (See prior posting.)

Supreme Court Stays Preliminary Injunction Against Trump's 3rd Travel Ban

The U.S. Supreme Court today granted a complete stay of the preliminary injunction that a Hawaii federal district court had issued against President Trump's third travel ban. The 9th Circuit had lifted the ban in part. (See prior posting.)  But today's order (full text) in Trump v. Hawaii (Sup. Ct., Dec. 4, 2017) stays the injunction completely while the case is being appealed to the 9th Circuit and then to the Supreme Court.  The Supreme Court noted that the 9th Circuit is handling the appeal on an expedited basis.  Justices Ginsburg and Sotomayor indicated that they would have denied the stay application.  Washington Post reports on today's ruling by the Supreme Court. [corrected]

UPDATE: Later today the U.S. Supreme Court issued a similar stay while appeals are pending of a preliminary injunction against the third travel ban that has been issued by a Maryland federal district court. (See prior posting.)  Today's order (full text) comes in Trump v. International Refugee Assistance Project, (Sup. Ct., Dec. 4, 2017).  Again Justices Ginsburg and Sotomayor disagreed with the majority.

Indonesian Christians Get Temporary Stay of Deportation

In Devitri v. Cronen, (D MA, Nov. 27, 2017), a Massachusetts federal district court issued a temporary injunction barring the federal government from removing 51 Indonesian Christians who fear religious persecution if their final Orders of Removal are implemented. As explained by the court:

In 2010, Immigration and Customs Enforcement (“ICE”) instituted a humanitarian program called Operation Indonesian Surrender, through which Petitioners were granted Orders of Supervision, allowing them to seek employment and subjecting them to certain mandatory conditions. Petitioners also received temporary stays of removal that were renewed over multiple years. In the summer of 2017, these individuals were informed that they would be removed from the United States.

Petitioners claim that they need additional time to exercise their statutory right to move to reopen their cases based on changed country conditions that arose after their Orders of Removal became final. The court asked the government for additional briefing on how long the temporary injunction should remain in effect to give a reasonable time to file a motion to reopen.  ACLU issued a press release announcing the court's decision.

9th Circuit: Religious Sect's Attempt to Extort Land and Recruit May Create Basis For Asylum

In Singh v. Sessions, (9th Cir., Nov. 15, 2017), the U.S. 9th Circuit Court of appeals held that an immigration judge was incorrect when he rejected claims for asylum and withholding of removal by Harbans Singh who in India had suffered at the hands of the Dera Sacha Sauda which attempted to extort his land and recruit him for membership.  The court held that this could create a sufficient nexus to find religious or political persecution since "Singh’s refusal to join the DSS was inherently an act of religious expression." The court remanded the case for findings on additional issues. India West reports on the decision.

US Asks Supreme Court For Full Stay Pending Appeal of Injunction Against 3rd Travel Ban

As previously reported, a week ago the U.S. 9th Circuit Court of Appeals stayed in part the preliminary injunction issued by a Hawaii federal district court against enforcement of President Trump's third travel ban.  Yesterday, the government filed an application (full text) in the case (Trump v. State of Hawaii) seeking to have the preliminary injunction stayed completely while the case works its way through appeals to the 9th Circuit and to the Supreme Court.  According to a report from SCOTUSblog, the Justices have asked the challengers to file a response to the government's application by Nov. 28.

Injunction Against Trump's 3rd Travel Ban Is Lifted In Part

In State of Hawaii v. Trump, (9th Cir., Nov. 13, 2017), the U.S. 9th Circuit Court of Appeals stayed in part the preliminary injunction issued by a Hawaii federal district court against enforcement of President Trump's third travel ban. (See prior posting.)  The 9th Circuit held:

The preliminary injunction is stayed except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States....

The injunction remains in force as to foreign nationals who have a “close familial relationship” with a person in the United States.... Such persons include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.... “As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [Proclamation 9645].”

Reuters reports on the decision.

Supreme Court Dismisses As Moot Remaining Travel Ban Challenge On Its Docket

Yesterday, as President Trump's prior Executive Order barring admission of refugees expired and a new Executive Order took effect, the U.S. Supreme Court issued an order (full text) in Trump v. Hawaii in which it had previously granted review to decide on the constitutionality of the President's second travel ban.  In the order the Court vacated the judgment below and remanded to the 9th Circuit with instructions to dismiss as moot the challenge to the prior Executive Order.  Justice Sotomayor dissented from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted. The Court earlier dismissed another challenge on similar grounds. (See prior posting.)

Another Court Enjoins Enforcement of Third Travel Ban

In International Refugee Assistance Project v. Trump, (D MD, Oct. 17, 2017), a Maryland federal district court became the second court (see prior posting) to bar enforcement of most of the third version of President Trump's travel ban.  As did the Hawaii federal district court the day before, the Maryland federal court held that the Presidential Proclamation violates provisions of the Immigration and Nationality Act that prohibit denial of immigrant visas on the basis of nationality.  Disagreeing with the Hawaii federal court, it held that the government had made an adequate fining of "detrimental interest" to justify the ban.

Reaching an issue that the Hawaii court had avoided, the Maryland federal court concluded that, like the prior two bans, the third travel ban also violates the Establishment Clause.  It concluded that the third version of the ban is merely "the inextricable re-animation of the twice-enjoined Muslim ban." The court said in part:

... [A] simple check on the demographics of the geographic area affected by the Proclamation, with a combined population that is predominantly Muslim, reveals that its impact closely aligns with religious affiliation....  Likewise, the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Proclamation. The Venezuela ban is qualitatively different from the others because it extends only to government officials, and the ban on North Korea will, according to Department of State statistics, affect fewer than 100 people....

Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” ... announced his intention to go back to and get even tougher than in EO-1 and EO-2.... 

The reasonable observer using a “head with common sense” would rely on the statements of the President to discern the purpose of a Presidential Proclamation.... Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, ... nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated” 

The court, while issuing a nationwide injunction, limited its injunction to visa applicants who have a credible claim of a bona fide relationship with a person or entity in the United States, ad defined in prior litigation on the President's travel bans.  It also excluded travelers from Venezuela or North Korea. CNN reports on the decision.

Court Bars Enforcement of Most of Trump's Third Travel Ban

In State of Hawaii v. Trump,(D HI, Oct. 17, 2017), a Hawaii federal district court issued a nation-wide temporary restraining order barring enforcement of most portions of the latest, more focused, version of President Trump's travel ban. (See prior related posting.)  This version, set out in a Presidential Proclamation  and scheduled to take effect today, covers travel to the U.S. by nationals of eight countries.  The court banned enforcement of the Proclamation ("EO-3") against nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia.  Plaintiffs had not sought a ban on enforcing the provisions barring travelers from North Korea and some travelers from Venezuela.  The court summarized:

Ignoring the guidance afforded by the Ninth Circuit that at least this Court is obligated to follow, EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be “detrimental to the interests of the United States,” a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f). Hawaii, 859 F.3d at 774. And EO-3 plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) and the founding principles of this Nation. Hawaii, 859 F.3d at 776–79.

As with the 9th Circuit's earlier decision (see prior posting), this approach allowed the court to avoid reaching plaintiff's argument that the Proclamation amounts to an unconstitutional "Muslim ban."  Anticipating an appeal, the court also ruled that it would not stay its Order pending any appeal.  CNN reports on the decision.

UPDATE: On Oct. 20, the court converted the TRO to a preliminary injunction. (Full text of order.)

Supreme Court Dismisses One Travel Ban Case As Moot

In an Order (full text) issued yesterday, the U.S. Supreme Court dismissed as moot Trump v. International Refugee Assistance Project, the challenge to President Trump's second travel ban. As explained by a USA Today report:

"We express no view on the merits," the justices said in a one-page order.

The decision effectively wipes the record clean in the U.S. Court of Appeals for the 4th Circuit, one of two federal appeals courts that had struck down major portions of Trump's travel ban. That case began in Maryland.

A separate case from the 9th Circuit, based in California, remains pending because it includes a ban on refugees worldwide that won't expire until later this month. But the Supreme Court is likely to ditch that case, which began in Hawaii, as well....

Justice Sotomayor dissented, saying that instead she would dismiss  the writ of certiorari as improvidently granted. This would have maintained the 4th Circuit's opinion as precedent.