Ninth Circuit Upholds Freeze on Muslim Ban 2.0

On June 12, 2017, the Ninth Circuit largely affirmed a lower court’s preliminary injunction blocking sections 2 and 6 of the revised Executive Order, sometimes known as a travel ban or “Muslim Ban 2.0.”

The court reached strong statutory conclusions, finding that the President exceeded the authority delegated to him in the Immigration and Nationality Act (the Act) as it relates to the suspension of entry under 212(f). The court also found that the revised EO violates 202(a) of the Act by refusing visas based on nationality. This opinion is distinguishable from the Fourth Circuit as the instant one focuses on the statute.

Beyond satiating the appetites of immigration lawyers and those who love statutory interpretation, the ruling highlights how significant the impact of a travel ban is on universities. As a faculty member on a large campus with students/scholars from all six (and previously seven) nations targeted by the revised EO, the statements made by the Ninth Circuit are particularly poignant and consistent with my own observations.

What happens next? The U.S. Supreme Court will decide whether to stay the injunctions issued by the Maryland and Hawaii courts and also whether to hear the case (by granting a petition made by the administration). Updated information about Muslim Ban 2.0 can be found here.

What follows are quotes from the ruling that elaborate on this short analysis/reflection.

But immigration, even for the President, is not a one-person show. The President’s authority is subject to certain statutory and constitutional restraints.

In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be detrimental to the interests of the United States.

[T]he Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees

Mindful of the Supreme Court’s admonition that courts should be extremely careful not to issue unnecessary constitutional rulings, [p]articularly where, as here, a case implicates the fundamental relationship between the Branches, we think it appropriate to turn first to the INA claim.

For reasons further explained below, we need not, and do not, reach the Establishment Clause claim to resolve this appeal

Given the short admissions cycle from when the University offers admissions to when international students must decide whether to attend and the uncertainty of whether EO2 will inhibit their ability to secure a visa before the fall semester begins, EO2's deterrent effect is an injury that is concrete and imminent, as opposed to merely speculative. Of course, a student who is not permitted to obtain a visa and enter our country would not accept an offer of admission.

EO2 harms the State’s interests because (1) students and faculty suspended from entry are deterred from studying or teaching at the University; and (2) students who are unable to attend the University will not pay tuition or contribute to a diverse student body.

Likewise, the State’s efforts to enroll students and hire faculty members who are nationals from the six designated countries fall within the zone of interests of the INA. The INA makes clear that a nonimmigrant student may be admitted into the United States. See 8 U.S.C. § 1101(a)(15)(F) (identifying students qualified to pursue a full course of study); 8 C.F.R. § 214.2(f) (providing the requirements for nonimmigrant students, including those in colleges and universities). The INA also provides that nonimmigrant scholars and teachers may be admitted into the United States. See, e.g., 8 U.S.C. § 1101(a)(15)(J) (identifying students, scholars, trainees, teachers, professors, research assistants, specialists, or leaders in fields of specialized knowledge or skill); id. § 1101(a)(15)(H) (identifying aliens coming to perform services in a specialty occupation); id. § 1101(a)(15)(O) (identifying aliens with extraordinary abilities in the sciences, arts, education, business, or athletics). International students and visiting faculty may qualify for F-1 visas, J-1 visas, H-1B visas, or O-1 visas. The INA leaves no doubt that the State’s interests in student- and employment-based visa petitions for its students and faculty are related to the basic purposes of the INA.

We are unpersuaded by the Government’s arguments that until a student or faculty member requests a waiver and it is denied, or until Dr. Elshikh’s mother-in law requests a waiver and she is denied, Plaintiffs injuries are not ripe.

Plaintiffs do not seek review of an individual consular officer’s decision to grant or to deny a visa pursuant to valid regulations, which could implicate the consular nonreviewability doctrine. Plaintiffs instead challenge the President’s promulgation of sweeping immigration policy.

Although [t]he Executive has broad discretion over the admission and exclusion of aliens, that discretion is not boundless. It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations.

There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests. These identified reasons do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.

The Order does not tie these nationals in any way to terrorist organizations within the six designated countries. It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness

As the law stands, a visa applicant bears the burden of showing that the applicant is eligible to receive a visa or other document for entry and is not inadmissible. See 8 U.S.C. § 1361. The Government already can exclude individuals who do not meet that burden. The Order offers no further reason explaining how this individualized adjudication process is flawed such that permitting entry of an entire class of nationals is injurious to the interests of the United States.

In conclusion, the Order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.

National security is not a talismanic incantation that, once invoked, can support any and all exercise of executive power under § 1182(f).

To the extent that 60,000 additional refugees can be considered a class of aliens, EO2 makes no findings to justify barring entry in excess of 50,000 as detrimental to the interests of the United States. EO2 gives no explanation for why the 50,001st to the 110,000th refugee would be harmful to the national interest, nor does it specify any further threat to national security.

EO2's suspension of entry on the basis of nationality, however, in substance operates as a ban on visa issuance on the basis of nationality.

Section 1157 contemplates that the President, after consultation with Congress, may increase the number of refugees admitted in the middle of the fiscal year, but does not provide a mechanism for the President to decrease the number of refugees to be admitted mid-year.

Well-settled interpretive canons further explain why § 1182(f) does not give the President authority to override the requirements of § 1157.