2 federal judges find new Trump travel ban discriminatory
Originally published March 15, 2017 at 3:52 pm Updated March 16, 2017 at 9:00 am
Photo: This December 2015 photo shows U.S. District Judge Derrick Watson in Honolulu. Hours before it was to take effect, President Donald Trump’s revised travel ban was put on hold Wednesday, March 15, 2017, by Watson, a federal judge in Hawaii who questioned whether the administration was motivated by national security concerns. (George Lee/The Star-Advertiser via AP)
Photo: Hawaii Attorney General Douglas Chin speaks at a press conference outside the federal courthouse, Wednesday in Honolulu. Hearings were scheduled Wednesday in Maryland, Washington state and Hawaii on President Donald Trump’s travel ban. (Marco Garcia / The Associated Press)
Photo: President Donald Trump at a rally Wednesday in Nashville, Tenn., blasted a court ruling for halting what he’s calling a “watered-down version” of his travel ban. (Mark Humphrey / The Associated Press)
Photos: This December 2015 photo shows U.S. District Judge Derrick Watson in Honolulu. Hours before it was to take effect, President Donald Trump’s revised travel ban was put on hold Wednesday, March 15, 2017, by... (George Lee/The Star-Advertiser via AP)
President Donald Trump’s revised travel ban was dealt another legal setback Thursday when a federal judge in Maryland rejected the prohibition against six predominantly Muslim countries.
By BEN NUCKOLS
The Associated Press
GREENBELT, Md. — Rejecting arguments from the government that President Donald Trump’s revised travel ban was substantially different from the first one, judges in Hawaii and Maryland blocked the executive order from taking effect as scheduled on Thursday, using the president’s own words as evidence that the order discriminates against Muslims.
The rulings in Hawaii late Wednesday and in Maryland early Thursday were victories for civil liberties groups and advocates for immigrants and refugees, who argued that a temporary ban on travel from six predominantly Muslim countries violated the First Amendment. The Trump administration argued that the ban was intended to protect the United States from terrorism.
In Greenbelt, Maryland, U.S. District Judge Theodore Chuang — who was appointed by then-president Barack Obama — called Trump’s own statements about barring Muslims from entering the United States “highly relevant.” The second executive order removed a preference for religious minorities from the affected countries, among other changes that the Justice Department argued would address the legal concerns surrounding the first ban, which was also blocked in court.
“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,” Chuang said.
The initial ban sparked chaos at U.S. airports and widespread criticism around the world when it was signed in January. It was later blocked by a judge in Washington state, a ruling that was upheld by the 9th U.S. Circuit Court of Appeals.
In Honolulu, U.S. District Judge Derrick Watson criticized what he called the “illogic” of the government’s arguments and cited “significant and unrebutted evidence of religious animus” behind the travel ban. He also noted that while courts should not examine the “veiled psyche” and “secret motives” of government decision-makers, “the remarkable facts at issue here require no such impermissible inquiry.”
Watson also wrote, referring to a statement Trump issued as a candidate, “For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’”
The White House and the Justice Department had no immediate comment on Thursday. The case was argued in court by acting U.S. Solicitor General Jeffrey Wall, who said the ban “doesn’t say anything about religion. It doesn’t draw any religious distinctions.”
Speaking Wednesday evening at a rally in Nashville, Tennessee, Trump called the ruling in Hawaii an example of “unprecedented judicial overreach” and said his administration would appeal it to the U.S. Supreme Court. He also called his new travel ban a watered-down version of the first one, which he said he wished he could implement.
“We’re going to win. We’re going to keep our citizens safe,” the president said. “The danger is clear. The law is clear. The need for my executive order is clear.”
While the Hawaii order only halts the ban temporarily, Chuang’s ruling in Maryland took the form of a preliminary injunction, which will remain in effect indefinitely as the case is litigated. Chuang was also the first judge to stop the ban outside the 9th Circuit, which has a liberal reputation.
“Unless and until the president realizes that this is a battle in which he’s going to keep losing and decides to do the right thing and abandon this course, for as long as he’s on it we’ll keep litigating it and I think we’re going to keep winning,” said Omar Jadwat, who argued the case for the American Civil Liberties Union in Maryland.
Chuang did not block the entire executive order, saying the plaintiffs didn’t sufficiently develop their argument that a temporary ban on refugees discriminates on the basis or religion. Plaintiffs in the Maryland case also had sought to stop a portion of the order that would reduce the number of refugees allowed to enter the country this fiscal year from 110,000 to 50,000.
Still, the judge’s order is hugely meaningful for many plaintiffs, including a man in Texas whose same-sex fiancé is seeking a visa to enter the United States from Iran, said Justin Cox, an attorney with the National Immigration Law Center who also argued the Maryland case.
“This Muslim ban was threatening to either separate or continue to separate families who’ve already been separated for months and years,” Cox said. “It has real-world consequences and we were obviously very glad to see that Judge Chuang recognized those and rejected the government’s frankly callous argument that our clients have already been waiting and another few months couldn’t possibly be irreparable.”
If the administration appeals Watson’s decision at the 9th Circuit level, the matter would be heard by different judges from the three who ruled on the case last month. That’s because the panel of judges assigned to such cases rotates every month, said court spokesman David Madden.
The 9th Circuit on Wednesday declined to reconsider the 3-0 decision not to reinstate the original ban. In a dissent, five judges said they considered that decision incorrect and wanted it vacated.
The hearings in Maryland and Hawaii were two of three held Wednesday in federal courts around the country. U.S. District Judge James Robart in Seattle, who blocked the initial travel ban last month, did not immediately rule on a request from an immigrant-rights group to block the revised version.
In all, more than half a dozen states are trying to stop the ban.
Associated Press writers Sarah Brumfield in Washington, D.C., Jennifer Sinco Kelleher in Honolulu, Gene Johnson in Seattle and Sudhin Thanawala in San Francisco contributed to this report.
Seattle judge delays decision on immigrants’ challenge to travel ban
Originally published March 15, 2017 at 3:39 pm Updated March 16, 2017 at 9:29 am
Photo: U.S. District Judge James Robart, as seen in August 2015. (Courtesy of United States Courts)
The Seattle-based Northwest Immigrant Rights Project sued the U.S. government on behalf of legal immigrants from countries banned in President Donald Trump’s first travel ban who were separated from their families.
Seattle Times staff reporter
A Seattle federal judge who ruled against President Donald Trump’s first immigrant travel ban has taken another challenge to the president’s revised order under advisement, this one filed by the families of immigrants that have been separated because of the policy.
U.S. District Judge James Robart remained skeptical of the government’s continued claims that the president can bar people from immigrating because of their nationality. Attorneys for the families argued that statutes governing the issuance of immigrant visas specifically prohibit such discrimination.
Photo: Attorney General Bob Ferguson discusses new developments of the immigration ban. (Mike Carter / The Seattle Times)
Robart heard nearly 90 minutes of arguments Wednesday in a lawsuit challenging the travel order filed by several legal immigrants who are separated from their families and who fear the new order will prolong that separation. Their family members all are in various stages of attempting to obtain visas to enter the U.S.
The latest travel ban was set to go into effect at midnight Wednesday. However, a federal judge in Hawaii on Wednesday put the revised travel ban on hold.
Matt Adams, the legal director for the Northwest Immigrant Rights Project, which is spearheading the immigrant-family lawsuit, said the Hawaii order is a godsend for his clients, who will benefit from any delay in the order’s implementation.
Still, he said they will pursue a restraining order of their own.
Robart did not say when he would rule on the suit filed by several immigrants.
Acting Assistant Attorney General Chad Readler, arguing in Seattle, said the president has broad powers to decide who can enter the U.S., particularly in matters of national security. Trump’s new order, which removed some of the problematic language in the first order, continues to stop immigration and refugees from six countries.
Robart questioned the extent of those powers, particularly when the statute prohibits discriminating against visa applicants by nationality.
Adams, the attorney for the Seattle-based Northwest Immigrant Rights Project, argued that every extra day his clients are separated from their loved ones constitutes an “irreparable harm.” The immigrants’ organization has sued the government over the travel ban.
Adams argued that under the anti-discrimination law, the government has no more authority to deny a visa to someone from the six targeted countries than it would to deny visas to anyone who isn’t Caucasian.
Trump’s original travel ban was signed as an executive order Jan. 27, and barred entry into the U.S. of travelers from seven predominantly Muslim countries, suspended the processing of visas and stopped the refugee program. The result was chaos at the country’s airports and a flurry of lawsuits challenging the executive order.
Robart in February halted enforcement nationwide of the immigration ban in a lawsuit brought by the states of Washington and Minnesota. Trump appealed to the 9th Circuit Court of Appeals, where a panel of judges upheld Robart’s order and effectively suspended the implementation of the travel ban.
In response, Trump issued a second executive order March 6 that narrowed some of the troublesome provisions of the original but still suspended the issuance of visas to travelers from Iran, Libya, Somalia, Sudan, Syria and Yemen. The new order left Iraq off the list of banned countries.
Lawyers for the plaintiffs argue that the second executive order contains many of the legal flaws of the first, and that Trump’s fixes are cosmetic and don’t address the legal issues posed by the ban.
Robart has said he realizes the frustrations of the plaintiffs in the lawsuit, mostly parents separated from their children, over Trump administration statements that seemingly contradict those made by federal government lawyers.
“The court understands Plaintiffs’ frustrations concerning statements emanating from President Trump’s administration that seemingly contradict representations of the federal government’s lawyers in this and other litigation before the court,” the order said.
Nevertheless, Robart said, the court will continue to rely on statements coming from the federal attorneys.
Information from Seattle Times archives and The Associated Press is included in this story.
Trump’s new travel ban avoids some legal pitfalls but not all, local experts say
Originally published March 6, 2017 at 8:31 pm Updated March 7, 2017 at 8:39 am
“I do not take lightly suing the president of the United States,” state Attorney General Bob Ferguson said during a Monday news conference. State Solicitor General Noah Purcell is at right. (Steve Ringman/The Seattle Times)
Washington State Attorney General Bob Ferguson, a Democrat whose federal lawsuit halted enforcement of Trump’s first travel order, said he has concerns about the new version but is unsure if he’ll challenge it.
Seattle Times political reporter
The immigration order signed Monday by President Donald Trump cured some legal flaws in his previous travel ban but could still prove vulnerable to court challenges, according to legal experts.
The narrower travel ban bars new visas for citizens from six Muslim-majority countries and temporarily shuts down the nation’s refugee program, with the White House saying those moves are justified by national security.
Washington State Attorney General Bob Ferguson, a Democrat whose federal lawsuit halted enforcement of Trump’s first travel-ban order, said he has concerns about the new version but doesn’t know yet whether he’ll challenge it.
“I do not take lightly suing the president of the United States,” he said at a news conference Monday in Seattle.
Some constitutional- and immigrant-law experts said changes in the latest travel-ban order make it more likely to withstand legal scrutiny.
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“I think the president has made it a lot more difficult for courts to strike it down,” said Won Kidane, a Seattle University law professor who teaches immigration law. “The previous executive order was just rushed and it didn’t make sense … Now I think they took their time and took care of many of the offending provisions.”
Monday’s order removed Iraq from the list of affected countries and will not apply to existing visas or green-card holders. It also avoids any mention of favoring particular religious groups.
Kidane said such revisions eliminated many due-process concerns and noted the new order allows low-level bureaucrats to waive its provisions on a case-by-case basis if enforcement would cause “undue hardship.”
That makes it less sweeping than the previous order, which led to the cancellation of 60,000 visas and widespread chaos and protests at airports.
Still, Kidane said the new order also could face legal hurdles for its impact on immigrants seeking entry to the U.S., frequently with the aid of family members and employers. He pointed to the Immigration and Nationality Act of 1965, which bans discrimination against immigrants based on national origin.
Others say basic constitutional pitfalls remain over the particulars of Trump’s order — and the motivation behind it.
“They’ve tried to clean it up and there are some changes that will probably count as improvements when it goes through judicial review, but I think there are still serious constitutional questions,” said Andrew Siegel, a professor of law and constitutional expert at Seattle University.
While the new travel ban does not mention any religion, Siegel said discrimination objections to the previous version were never about what was in the text of the order itself.
During his presidential campaign, Trump called for “a total and complete shutdown of Muslims entering the United States” until the country could be assured of safety. Earlier this year, Trump said he wanted to prioritize Christian refugees. And a leaked Department of Homeland Security report cast doubt on the security justifications for the travel ban, calling citizenship of a particular nation an “unreliable” threat indicator.
“That evidence doesn’t go away just because they issued a new ban,” Siegel said.
Trump and administration officials have argued his travel ban was not motivated by anti-Muslim animus but by a need to pause and review security and vetting procedures before admitting people from nations identified as hotbeds of terrorism.
Trump’s new executive order says “the risk of erroneously permitting entry of a national of any one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high.”
The new version won over some previous Republican critics of the first executive order. Sen. Lindsey Graham, R-S.C., said in a statement he believed the new order “will withstand legal challenges” and “will achieve President Trump’s goal of making us safer.”
Regardless of whether Washington state challenges Trump’s new order, Ferguson and some other Democrats took Monday’s news as a chance for another victory jig.
With the new order explicitly rescinding the previous one, Ferguson called the “capitulation” proof the state’s case had been correct.
He needled Trump for the president’s “SEE YOU IN COURT” tweet after the 9th Circuit Court of Appeals declined to reinstate the travel ban.
“It bears pointing out that the administration since that tweet has done everything in its power to avoid seeing anyone in court,” Ferguson said. “There is a reason for that: The president was essentially afraid to see us in court because he knew he would lose again.”
At his own news conference Monday, Gov. Jay Inslee called Trump’s new order “a full-blown retreat … the first one he’s been forced to make.” Despite its alterations, Inslee argued the new order “maintains the president’s mean-spirited approach” and was in keeping with the previously stated intent to ban Muslims.
Gov. Jay Inslee speaks in a news conference Monday about President Donald Trump’s new, narrower executive order on immigrant travel. (Joseph O’Sullivan / The Seattle Times)
Local immigration-rights advocates were not impressed with the revised ban. “They’re putting lipstick on a pig,” said Jorge Barón, executive director of the Northwest Immigrant Rights Project (NWIRP).
He said the ban still would affect family-visa petitions — applications filed by U.S. citizens and permanent residents on behalf of family members they want to bring to the U.S.
NWIRP filed a proposed class-action lawsuit after the initial travel ban, contending it infringed upon due process and equal-protection rights of those living here.
Because the first travel ban was blocked on a temporary basis — before a trial or even significant evidence-gathering — plenty of such thorny legal issues remain to be hashed out in court, said Lisa Manheim, a law professor and constitutional expert at the University of Washington, who consulted on Ferguson’s lawsuit. For example, Manheim said, the extent of the president’s authority under federal immigration law is “unsettled — there are good arguments on both sides.”
While the president has been granted much authority over border security by Congress, his executive power has limits.
“For the president to do something, he has to have affirmative authority to do it,” she said. “Even if he does, he can’t do it in a way that violates a constitutional or statutory prohibition.”
Seattle Times staff reporters Nina Shapiro and Joseph O’Sullivan contributed to this story.