Employment Law Daily Trump’s latest travel ban enjoined over similar problems as faced earlier versions
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Thursday, October 19, 2017

Trump’s latest travel ban enjoined over similar problems as faced earlier versions

By Pamela Wolf, J.D.

The federal judge in Hawaii who previously enjoined the first and second versions of President Trump’s controversial travel ban has also temporarily enjoined version three, finding that it suffers from the same problems as its predecessor: The ban 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.” This is a precondition that, according to the Ninth Circuit, must be satisfied before the president may properly invoke Section 1182(f) of the Immigration and Nationality Act.

Version three also “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,” held the court in Hawaii v. Trump.

Travel ban iterations. Version three of Trump’s travel ban suspended and limited indefinitely the entry into the United States of foreign nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Trump’s first travel ban suspended entry of foreign nationals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Following challenges, the second iteration removed Iraq from the list but left intact the remainder of the list. Trump’s September 24, 2017, proclamation (the third version) effectively removes Sudan from the travel ban and adds Chad, North Korea, and Venezuela to the list. Release of the third version of the ban prompted the Supreme Court to cancel previously set oral arguments on the second version of the ban.

From the beginning, Trump’s travel bans, which previously excluded foreign nationals from only Muslim-majority countries, have been seen by many as the fulfillment of his campaign promise to ban Muslims from the United States.

No link between excluded nationals and terrorism. Version three of the travel ban met the same fate as his earlier versions on October 17, although that may or may not change upon appeal. An EO promulgated pursuant to INA Sections 1182(f) and 1185(a) “requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States” observed the district court in Hawaii. The INA also “requires that the President’s findings support the conclusion that entry of all nationals from the [list of] designated countries . . . would be harmful to the national interest.” Although version three contains findings, they fall short of the Ninth Circuit’s articulated standards, according to the court.

First, version three, like its predecessor, makes “no finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States,” the court said. Nor does version three ‘”tie these nationals in any way to terrorist organizations within the six designated countries,’ find them ‘responsible for insecure country conditions,’ or provide ‘any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.’” On the other hand, “nationals of other countries who do have meaningful ties to the six designated countries—[and whom the designated countries may or may not have useful threat information about]—fall outside the scope of [the entry restrictions],” the court pointed out, saying that this leads to absurd results under which version three is “simultaneously overbroad and underinclusive.”

Existing law not shown ineffective. The court also found that version three failed to reveal why existing law is insufficient to address Trump’s described concerns. As was the case in version two, under the Ninth Circuit’s analysis, “findings” cited in Section 1(h) and (i) of version three “similarly omit any explanation of the inadequacy of individual vetting sufficient to justify the categorical, nationality-based ban chosen by the Executive.”

National security rationale undermined. Version three of the travel ban also contains “internal incoherencies that markedly undermine its stated ‘national security’ rationale,” according to the court. Here Judge Watson pointed to the numerous countries that fail to meet one or more of the global baseline criteria described in version three, yet are not included in the ban, such as Iran, which failed the “baseline” security assessment but was nonetheless omitted from the ban for policy reasons. Venezuela failed to meet the information-sharing baseline, but it also got a pass except as to certain Venezuelan government officials. While Somalia did meet the information-sharing baseline that Venezuela failed, “Somalia and its nationals were rewarded by being included in the ban,” as the court put it.

Moreover, the court found that version three’s individualized country findings “make no effort to explain why some types of visitors from a particular country are banned, while others are not.” The nature and scope of these sorts of inconsistencies and unexplained findings could not lawfully justify exercise of Section 1182(f) authority, especially where, as here, it is of indefinite duration.

Further, the court found that version three’s scope and provisions contradict its stated rationale. Many of the latest travel ban’s structural provisions “are unsupported by verifiable evidence, undermining any claim that its findings ‘support the conclusion’ to categorically ban the entry of millions.”

“There is no dispute that national security is an important objective and that errors could have serious consequences,” wrote the court. “Yet, ‘[n]ational security is not a “talismanic incantation” that, once invoked, can support any and all exercise of executive power under § 1182(f).’”

TRO factors met. The court further found that the plaintiffs not only established their likelihood of success on the merits, but also that they would suffer irreparable harm were version three of the ban implemented, and that the balance of equities and public interest weighed in favor of emergency relief. The court thus granted a nationwide temporary restraining order enjoining implementation and enforcement of Sections 2(a), (b), (c), (e), (g), and (h) of Trump’s September 24 proclamation, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.”

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