Ninth Circuit Allows Parts of Trump’s Travel Ban to Take Effect

SAN FRANCISCO (CN) – The Ninth Circuit on Monday partly granted an emergency motion by the Trump administration and lifted a preliminary stay on most aspects of President Donald Trump’s ban on entry into the United States by travelers from eight nations – most of them predominantly Muslim.

But the three-judge panel left in place a stay of Trump’s executive order as it applies to travelers with a bona fide relationship to the United States, including grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins of U.S. citizens or legal residents.

“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 panel wrote in a 2-page order.

U.S. District Judge Derrick Watson in Hawaii preliminarily blocked the travel ban in mid-October, finding it a thinly disguised version of the two previous iterations of Trump’s executive order. All three have been challenged on claims of religious discrimination and violations of immigration laws which prohibit the refusal of visas on the basis of nationality.

In his third version of the travel ban, Trump sought to prohibit nationals from eight different countries: Somalia, Syria, Libya, Iran, Yemen, North Korea, Venezuela and Chad.

At the time the ban was issued, the administration cited a lengthy study of immigration protocols of other nations, saying the eight identified in the third travel ban do not sufficiently screen travelers to comply with U.S. standards.

Many legal experts also noted including North Korea and Venezuela may shield the Trump administration from legal arguments that held the travel ban was directed at Muslims, as the previous two bans applied exclusively to Muslim-majority nations.

However, the state of Hawaii argued the government’s reliance on the study and the addition of two non-Muslim nations are simply after-the-fact efforts to disguise the discriminatory animus embedded in all three versions of the ban.

Watson ultimately ruled Hawaii’s argument was sound enough to warrant a preliminary injunction. The Ninth Circuit agreed, as it applies to people with a bona fide relationship or family members already living in the United States, but cleared the ban to take effect for travelers who do have such relationships.

The Trump administration has repeatedly denied the travel ban is intended to hurt Muslims, but says it is about national security and preventing terrorists from entering the United States.

The government’s lawyers have consistently argued the president has broad discretion to craft policy as it relates to the nexus between national security and immigration, and the repeated blocks of the ban represent judicial overreach.

The Ninth Circuit will hear oral arguments from both sides of the issue on Dec. 6. The Fourth Circuit will hear similar arguments on Dec. 9, and the matter will likely end up before the U.S. Supreme Court in the new year.

Meanwhile, parties in a similar but separate lawsuit seeking information on how the Department of Homeland Security implemented Trump’s first travel ban were in court Monday in Portland, Oregon. The case is supposed to go to trial in February, but Homeland Security attorneys said the agency would need more than two years to produce an estimated 5,200 pages of documents requested by the ALCU of Oregon.

U.S. District Judge Marco Hernandez rejected that claim.

“That’s just unacceptable to me,” Hernandez said. “To wait more than two years to get a relatively small number of documents into the hands of the ACLU? That’s too long.”

To produce documents any faster in this case would delay the government’s ability to produce documents in more than a dozen similar suits around the country, and slow its compliance with requests under the Freedom of Information Act that are unrelated to this litigation, Joseph Dugan with the Department of Justice told Hernandez.

“The faster the schedule is for Portland, the slower it will be for the other ACLU requests and the non-ACLU FOIA requests,” Dugan said.

Nevertheless, Hernandez ordered the government to speed up production somewhat.

“I’m going to allow the agency until the end of May,” Hernandez said.

The ACLU of Oregon’s case is one of more than a dozen lawsuits filed by local ACLUs around the nation.

CNS reporter Karina Brown contributed to this report from Portland, Oregon.



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