Metropolitan News-Enterprise


Monday, April 24, 2017


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Court Declines to Grant En Banc Review of Travel Ban


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals Friday denied en banc review of a U.S. district judge’s ruling enjoining the second version of President Donald Trump’s ban on travel to the United States by citizens of several Muslim countries.

Chief Judge Sidney Thomas, in a brief order, said that one of the court’s judges had proposed that the case be heard by a limited en banc court of 11 judges, while another had requested a hearing before the full court. Neither proposal secured the votes of a majority of the unrecused active judges, so the hearing will proceed May 15 before a three-judge panel in Seattle.

The Trump administration is appealing the temporary restraining order barring enforcement of the new ban, issued March 15 by U.S. District Judge Derrick K. Watson of the District of Hawaii. The revised executive order would restrict immigration of people from six predominantly Muslim countries — Iran, Libya, Somalia, Sudan, Syria and Yemen.

Watson said the plaintiffs—the state of Hawaii and an individual who is an imam and community leader—were likely to prevail in their constitutional challenge.

“Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion…in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs… are likely to succeed on the merits of their Establishment Clause claim,” Watson ruled.

Other Case

In other news, a judge in the District of Columbia expressed reluctance to issue another nationwide injunction against the revised ban, citing Watson’s ruling and a similar one by a district judge in Maryland, which is also being appealed. District Judge Tanya Chutkan said at a hearing in the nation’s capital that blocking the executive order might be an “academic exercise” in light of the injunctions now in effect.

Chutkan heard arguments from Iranian-American and Muslim groups that say Iranians have faced unusual delays and disruptions in visa processing even while the ban is on hold. They want a more sweeping injunction than those imposed by other courts, one that seeks in part to resume the normal visa application process.

But Chutkan expressed concern that ordering consular officials to issue visas “would take the court into areas where the court is not supposed to act.”

Claims Disputed

Justice Department lawyers disputed the challengers’ claims and said the court should not second-guess the president’s foreign policy decisions. After a two-hour hearing, Chutkan asked both sides for additional briefing on the practical implications of ruling in the case.

The case is unusual because Chutkan earlier this week allowed witnesses to testify in court about the effects of the travel ban, the first time a judge has permitted live testimony in a case challenging the order.

Representing Iranian-American groups, lawyer Cyrus Mehri said no other court in the country has the “robust record” that shows the harm caused by the ban. “We’ve had ongoing harm of visas being cancelled and they’re still not being reinstituted,” Mehri said.

The revised travel ban issued in March is narrower than an earlier one from January that was blocked by a federal judge in Washington state. It temporarily bars new visas for citizens of the six countries and suspends the U.S. refugee program for 120 days.

President’s Power

Acting Assistant Attorney General Chad Readler argued that the ban targets countries, not religious groups, and said the court should not undermine the president’s power to protect national security.

“It’s not a dispute with the Iranian people, it’s a problem with the Iranian government,” Readler said.

But Chutkan, like Watson, said those arguments are undercut by comments Trump and his advisers made during the election campaign and after indicating a desire to focus on Muslims.

Any decision in the Washington, D.C., case to block the travel ban would take effect only if the other two orders were reversed. But it also could be broader if it covers part of the order affecting visa procedures.

Chutkan suggested the portion relating to the visa process seems to rely on other sections already halted by another court.

Justice Department lawyer Daniel Schwei said there was no evidence to suggest visa delays for some Iranians had anything to do with the travel ban. He warned the court against issuing an order that would amount to “global micromanagement of the State Department’s consular posts and offices.”


Copyright 2017, Metropolitan News Company