Appellate Court Maintains Block on Travel Ban
A federal appeals court sided with challengers of President Trump’s revised executive order today, upholding a preliminary injunction against the order nationwide. The decision—handed down by the U.S. Court of Appeals for the Fourth Circuit, which is based in Richmond, Va.—affirms a Maryland district court judge’s ruling last month. That decision enjoined the most controversial portion of the so-called travel ban, Section 2, which sought to impose a 90-day suspension on entry into the United States of citizens from six predominately Muslim countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Key Aspects of the Ruling
A sizeable majority of the Fourth Circuit bench—10 of 13 judges participating in the case—rejected the Trump administration’s contention that the second version of the travel ban was “religiously neutral.” The chief difference between the two versions, aside from the second excluding Iraq from the list of targeted countries, was that the first executive order explicitly expressed a preference for religious-minority refugees. According to the appeals court, these changes amounted to cosmetic tweaks, as any “reasonable person” would still readily ascertain that the ban’s “primary purpose” is “to exclude persons from the United States on the basis of their religious beliefs.” The court added that such a manifestation of “religious intolerance, animus, and discrimination” seems to run counter to “an untiring sentinel” of the United States: the Establishment Clause of the First Amendment.
The Fourth Circuit additionally dismissed the Trump administration’s assertion that judges should essentially always defer to the executive in matters of national security, particularly when such a rationale seems suspect. While conceding that federal law does grant “the President broad power to deny entry to aliens,” the court determined that:
[T]he Government’s asserted national security interest … appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.
Arguably most noteworthy about the decision is the extent to which it repeatedly cites President Trump’s own words as proof of the actual rationale underpinning his travel ban. To the court, myriad instances of anti-Muslim bias by the president himself were a clear indication of the ban’s true intent. As the court ruled, the executive order cannot be disentangled from “the cohesive narrative linking it to the animus that inspired it.”
Results of the Ruling
The Fourth Circuit’s decision to leave in place the district court’s nationwide injunction preserves the status quo. It did not, however, rule on the merits of the appellees’ and government’s arguments. Instead, the ruling essentially echoes the district court’s determination that the plaintiffs are likely to succeed substantively on their claims.
Accordingly, the administration is still barred from enforcing the second executive order, and citizens from Iran, Libya, Somalia, Sudan, Syria, and Yemen can continue entering the U.S.
Next Steps
The U.S. Court of Appeals for the Ninth Circuit, the appellate court that effectively quashed the president’s first travel ban in February, has yet to issue a ruling on the government’s appeal of a Hawaiian federal judge's decision in March, which issued a broader injunction against the travel ban than did the Maryland court. President Trump himself was noticeably muted when news broke of today’s decision, but it’s worth recalling that he has publicly vowed to appeal judicial setbacks all the way to the U.S. Supreme Court. Later this afternoon, Attorney General Jeff Sessions announced that the administration would ask the U.S. Supreme Court to review the case.
Recommendations
Although the appellate court did deny the government’s request to stay the ruling until appeals have been exhausted, the duration of the preliminary injunction is not indefinite. President Trump’s travel ban may ultimately survive the last appeal possible: certiorari by the Supreme Court, whose conservative tilt has been reconstituted in the wake of Justice Neil Gorsuch’s confirmation.
In light of these considerations, we offer three recommendations as precautions.
Our Thoughts
A pillar of U.S. constitutional law is the separation of powers, and a manifestation of this concept is the judiciary’s ability to check the executive branch’s actions. Fortunately, this has been on display since virtually the very moment President Trump issued his executive orders.
Attorneys serve as officers of the court, and our firm takes this responsibility seriously. At Zhang & Associates, we’re committed to participating in the process, and will always strive to ensure that the government treats our clients in strict compliance with the Constitution.
This is a developing story, and as more information becomes available, updates will be published on our news section.
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Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017
At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.
Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).
He will use his experience and expertise to deliver the highest quality of service to our clients.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past
twenty years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
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(05/12/2017)