Travel Ban Back in Court as Panel Hears Discovery Fight

Immigration rights advocates protest the Trump administration’s travel ban outside the Fourth Circuit in Richmond, Va., on Tuesday. (CNS Photo/Brad Kutner)

RICHMOND, Va. (CN) – A Fourth Circuit panel seemed unlikely Tuesday to allow a discovery request in an ongoing fight between immigration rights advocates and President Donald Trump over his 2017 travel ban.

In a hearing held less than two years after the U.S. Supreme Court upheld the controversial ban on travelers from seven countries, the judges expressed doubt at the idea that Trump’s anti-Islam tweets and campaign promises to ban Muslims from entering the U.S. mattered in the face of a post-election assessment by security agencies that found the ban justified.

“We just have to look for any rational basis and not motivational basis,” said U.S. Circuit Judge Paul Niemeyer, a Ronald Reagan appointee, who noted the legal standard for an overview of immigration actions is incredibly low.

The countries targeted by the most recent version of the travel ban include six Muslim-majority nations – Chad, Iran, Libya, Syria, Yemen and Somalia – plus North Korea.

Justice Department attorney Joshua Waldman defended the ban Tuesday, saying it was crafted with data assessing each country’s risk factors and ability to cooperate with information-sharing policies. Court filings also say the government assessed each nation’s “foreign policy, national security, and counterterrorism goals.”

Waldman pointed to the Supreme Court’s affirmation of the policy as proof of its legality.

“We reach rational basis clearly,” he told the judges.

Mark Mosier, an attorney with the Washington, D.C.-based Covington & Burling, argued on behalf of several U.S. citizens whose family members were denied entry into the country under the ban. He pleaded with the court to consider the possibility that the ban is based on anti-Islam bias.

While the Supreme Court ruling reversed an injunction blocking the ban, Mosier’s clients still want to engage in discovery to better understand the origins of the controversial policy.

But the Fourth Circuit judges pushed back, saying the rational basis satisfaction would almost certainly eclipse any claim of animus. Still, Mosier was confident he could prove the ban was pretextual, and therefore illegal, if his team was granted access to more information via discovery.

“You’d have to show the only plausible basis was animus,” said U.S. Circuit Judge Julius Richardson, a Trump appointee.

“We will prove that,” Mosier replied.

Among those who hope to see that discovery request granted is Mana Kharrazi, one of the plaintiffs in the case and an activist with Iranian Alliances Across Borders.

At a press conference held outside the courthouse in Richmond, Kharrazi, a U.S. citizen, said the ban is not only harming family ties by keeping loved ones from weddings and other family events, but it is also having a medical consequence, with family members unable to donate bone marrow or take part in other procedures that only relatives can assist with.

“It’s not an easy time to be an Iranian-American,” Kharrazi said, noting she hadn’t seen her family since the travel ban went into place. “Ultimately this is dividing our families and keeping us apart.”

U.S. Circuit Judge Steven Agee, a George W. Bush appointee, was the third member of the panel. The judges did not signal when they will issue a ruling.

Tuesday’s hearing came just a day after the three-year anniversary of Trump’s initial version of the travel ban. The third version is the one currently in effect.

The Supreme Court’s 5-4 decision to uphold the ban in 2018 drew a dissenting opinion from the court’s liberal wing that compared the policy to the United States’ history of imprisoning Japanese citizens during World War II.

“As here, the government invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion,” Justice Sonia Sotomayor wrote.

But Chief Justice John Roberts, writing for the conservative majority, pushed back on the comparison and instead found Trump’s travel ban to be a “facially neutral policy denying certain foreign nationals the privilege of admission.”

“The entry suspension is an act that is well within executive authority and could have been taken by any other president,” Roberts wrote. “The only question is evaluating the actions of this particular president in promulgating an otherwise valid proclamation.”

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