by JOSH GERSTEIN · November 13, 2017
Activists protest against the Trump administration’s proposed travel ban on Oct. 18. | Drew Angerer/Getty Images
Ninth Circuit allows visa limits on six countries but exempts those with ties to U.S.
A federal appeals court on Monday gave President Donald Trump temporary permission to proceed with part of the third version of his travel ban policy, but it created an exemption from the new restrictions for foreigners with U.S. ties.
A Ninth Circuit Court of Appeals panel granted a portion of the Justice Department’s request for an emergency stay of a Hawaii federal judge’s order that prevented the Trump administration from moving forward with plans to limit issuance of visas to six majority-Muslim nations: Chad, Iran, Libya, Somalia, Syria and Yemen.
The ruling is at least a temporary victory for what Trump says is an effort to restrict immigration to fight terrorism. Critics have blasted the various iterations of the policy as thinly-veiled versions of the Muslim ban Trump promised while a candidate last year.
The Ninth Circuit judges would allow Trump’s policy to move forward with exemptions for foreigners with concrete U.S. ties, similar to the way the Supreme Court this summer let an earlier version of the proposal be implemented except for those with “a bona fide relationship” to the U.S.
The Ninth Circuit decision would allow visa applicants with relatives in the U.S. as well as those with jobs, business ties or connections to educational institutions to enjoy a carve-out from new restrictions imposed by Trump. Trump’s latest plan includes some similar exemptions, but they are narrower than what the court’s order would dictate.
A Justice Department spokeswoman said the administration plans to put Trump’s September directive into effect to the degree the new court order permits.
“We are reviewing the court’s order and the government will begin enforcing the travel proclamation consistent with the partial stay,” spokeswoman Lauren Ehrsam said. “We believe that the proclamation should be allowed to take effect in its entirety.”
At the State Department, an official who asked not to be named said steps were underway to implement the new ruling “in an orderly fashion.”
White House spokesman Hogan Gidley welcomed the court action.
“The President’s proclamation is designed to keep this country safe and is well within his legal authority under the Constitution and laws of the United States,” Gidley said. “The Administration is pleased with the 9th Circuit’s decision to partially lift one of the two injunctions. We are confident the Judiciary will ultimately conclude the President’s necessary and appropriate action is lawful in its entirety so it can be enforced as soon as possible.”
The three appeals court judges who ruled Monday — President Bill Clinton appointees Michael Daly Hawkins, Ronald Gould and Richard Paez — did not offer any rationale for their decision, but the order cites the interim decision the Supreme Court issued in June on the earlier version of the ban.
The ruling is also temporary. The Ninth Circuit next month will hear arguments on whether Honolulu-based U.S. District Court Judge Derrick Watson’s injunction should be left in place or overturned. Those arguments are set to take place in Seattle on Dec. 6 before the same three judges.
Hawaii Attorney General Douglas Chin, who is pressing the challenge at the Ninth Circuit, said his office is focusing on the arguments next month.
“Today’s decision today closely tracks guidance previously issued by the Supreme Court. I’m pleased that family ties to the U. S., including grandparents, will be respected,” Chin said in a statement.
Spokespeople for the White House did not immediately respond to requests for comment.
A federal judge in Maryland issued a parallel injunction to the one Chin ordered. However, Chuang incorporated roughly the same conditions the Ninth Circuit adopted Monday, limiting the effect of the policy to those without clear U.S. ties.
The Richmond-based Fourth Circuit Court of Appeals has not yet ruled on the government’s request to stay the injunction that Chuang issued.
However, the Fourth Circuit has decided that it will hear that case at a sitting of all but two of its 15 active judges on Dec. 8. Such en banc sittings are rare, but the court conducted one earlier this year to hear arguments about the second version of Trump’s ban.