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2017 Section 4: Immigration Law Panel Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 2017 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview IV. Immigration Law Panel In This Section: New Case: Trump v. Hawaii ...... 178 New Case: Trump v. International Refugee Assistance Project ...... 209 “SUPREME COURT FINDS A COMPROMISE IN REVIVING TRUMP'S TRAVEL BAN” David G Savage, Laura King, and Noah Bierman ...... 233

“TRUMP REFUGEE RESTRICTIONS ALLOWED FOR NOW; BAN ON GRANDPARENTS IS REJECTED” Adam Liptak ...... 236

“HAWAII CHALLENGES TRUMP ADMINISTRATION AGAIN AS TRAVEL BAN TAKES EFFECT” Associated Press ...... 239

“TRUMP TAKES TRAVEL BAN DISPUTE TO U.S. SUPREME COURT AGAIN” Greg Stohr ...... 241

“CHALLENGERS FILE BRIEFS IN SUPREME COURT ON TRAVEL BAN, WHILE 9TH CIRCUIT LEAVES FREEZE ON BAN IN PLACE” Amy Howe ...... 243

“TRUMP’S NEW TRAVEL BAN BLOCKS MIGRANTS FROM SIX NATIONS, SPARING IRAQ” Glenn Thrush ...... 246

“TRUMP CONCEDES DEFEAT ON TRAVEL BAN—FOR NOW” Matt Ford ...... 249

“TRAVEL BAN 2.0 IN EFFECT, COURT CHALLENGES BEGIN” Laura Jarret and Elise Labbot ...... 252

“TRUMP’S BIG TRAVEL BAN WIN? LET’S NOT GET CARRIED AWAY.” Aaron Blake ...... 255

“COURT HANDS EACH SIDE A PARTIAL VICTORY IN DISPUTE OVER SCOPE OF TRAVEL BAN” Amy Howe ...... 257

New Case: Jennings v. Rodriguez ...... 259

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“NO DECISION IN TWO IMMIGRATION-ENFORCEMENT CASES” Kevin Johnson ...... 280

“SUPREME COURT TO REVIEW NO-BAIL POLICY FOR IMMIGRANTS AWAITING HEARINGS” Jess Bravin ...... 282

“HIGH COURT TO DECIDE IF IMMIGRANTS ENTITLED TO BOND HEARINGS” Allissa Wickham ...... 284

“COURTS SAY DETAINED NON-CITIZENS HAVE THE RIGHT TO BOND HEARINGS” Richard Gonzales ...... 286

New Case: Sessions v. Dimaya ...... 288 “U.S. SUPREME COURT ORDERS SECOND ARGUMENT IN DEPORTATION CASE” Greg Stohr ...... 304

“SUPREME COURT JUSTICES SKEPTICAL OF DEPORTATION ORDER AGAINST BAY AREA BURGLAR” David G Savage ...... 305

“WHEN CAN IMMIGRANTS BE DEPORTED FOR CRIMES? JUSTICES HEAR SIDES” Adam Liptak ...... 307

“9TH CIRC. RULES BIA'S 'CRIME OF VIOLENCE' STANDARD VAGUE” Daniel Siegal ...... 309

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Trump v. Hawaii 16-1540

Ruling Below: Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). The state of Hawaii and Dr. Elshikh filed a claim seeking a temporary restraining order (TRO) on Executive Order 13780 on the basis that it violated the Establishment Clause of the First Amendment; the equal protection guarantees of the Fifth Amendment's Due Process Clause on the basis of religion and/or national origin, nationality, or alienage; the Due Process Clause of the Fifth Amendment based on substantive due process rights; the Due Process Clause of the Fifth Amendment based on procedural due process rights; the Immigration and Nationality Act; the Religious Freedom Restoration Act; and the Administrative Procedure Act.

Hawaii issued a nationwide TRO on the grounds that it was likely the plaintiffs could prove their claims. The government appealed. The 9th Circuit affirmed without ruling on the merits of the claims.

Question Presented: Whether respondents' challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable? Whether Section 2(c)'s temporary suspension of entry violates the Establishment Clause? Whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad?

Whether the challenges to Section 2(c) became moot on June 14, 2017?

The State of Hawai’i, v. Donald J. Trump.

United States Court of Appeals for the Fourth Circuit

Decided on June 12, 2017

[Excerpt; some citations and footnotes omitted]

PER CURIAM: United States." The Immigration and We are asked to delineate the statutory and Nationality Act ("INA") gives the President constitutional limits to the President's power broad powers to control the entry of aliens, to control immigration in this appeal of the and to take actions to protect the American district court's order preliminarily enjoining public. But immigration, even for the two sections of Executive Order 13780 President, is not a one-person show. The ("EO2" or "the Order"), "Protecting the President's authority is subject to certain Nation From Foreign Terrorist Entry Into the statutory and constitutional restraints. We

178 conclude that the President, in issuing the the United States refugee resettlement Executive Order, exceeded the scope of the program." Id. authority delegated to him by Congress. In suspending the entry of more than 180 EO1 mandated two main courses of action to million nationals from six countries, assure that the United States remain "vigilant suspending the entry of all refugees, and during the visa-issuance process to ensure reducing the cap on the admission of refugees that those approved for admission do not from 110,000 to 50,000 for the 2017 fiscal intend to harm Americans and that they have year, the President did not meet the essential no ties to terrorism." Id. In Section 3, the precondition to exercising his delegated President invoked his authority under 8 authority: The President must make a U.S.C. § 1182(f) to suspend for 90 days sufficient finding that the entry of these immigrant and nonimmigrant entry into the classes of people would be "detrimental to the United States of nationals from seven interests of the United States." Further, the majority-Muslim countries: Iraq, Iran, Libya, Order runs afoul of other provisions of the Sudan, Somalia, Syria, and Yemen. See id. at INA that prohibit nationality-based 8978. In Section 5, the President immediately discrimination and require the President to suspended the U.S. Refugee Admissions follow a specific process when setting the Program ("USRAP") for 120 days, imposed a annual cap on the admission of refugees. On ban of indefinite duration on the entry of these statutory bases, we affirm in large part refugees from Syria, and limited the entry of the district court's order preliminarily refugees to 50,000 in fiscal year 2017. Id. at enjoining Sections 2 and 6 of the Executive 8979. EO1 also ordered that changes be made Order. to the refugee screening process "to prioritize refugee claims made by individuals on the I basis of religious-based persecution, provided that the religion of the individual is A a minority religion in the individual's country of nationality." Id. EO1 permitted the One week after inauguration and without Secretaries of State and Homeland Security interagency review, President Donald J. to make case-by-case exceptions to these Trump issued Executive Order 13769 restrictions "when in the national interest," ("EO1"). Exec. Order No. 13769, 82 Fed. and explained that it would be in the national Reg. 8977 (Jan. 27, 2017). Entitled interest "when the person is a religious "Protecting the Nation From Foreign minority in his country of nationality facing Terrorist Entry Into the United States," EO1's religious persecution." Id. stated purpose was to "protect the American people from terrorist attacks by foreign EO1 took immediate effect, causing great nationals admitted to the United uncertainty as to the scope of the order, States." Id. EO1 recited that particularly in its application to lawful "[n]umerous foreign-born individuals have permanent residents. Notably, federal been convicted or implicated in terrorism- officials themselves were unsure as to the related crimes since September 11, 2001, scope of EO1, which caused mass confusion including foreign nationals who entered the at airports and other ports of entry. See Brief United States after receiving visitor, student, of the Foundation of Children of Iran and or employment visas, or who entered through Iranian Alliance Across Borders as Amici Curiae, Dkt. No. 77 at 11-12 (describing how an Iranian visa holder was turned away

179 while en route to the United States because of the confusion regarding the contours of B EO1's scope); Brief of Former National Security Officials as Amici Curiae, Dkt. No. On March 6, 2017, the President issued EO2, 108 at 25 n.53 & 54 (noting confusion at also entitled "Protecting the Nation From airports because officials were neither Foreign Terrorist Entry Into the United consulted nor informed of EO1 in advance). States." Exec. Order No. 13780, 82 Fed. Reg. Shortly after EO1 issued, the States of 13209 (Mar. 6, 2017). The revised Order was Washington and Minnesota filed suit in the to take effect on March 16, 2017, at which Western District of Washington to enjoin point EO1 would be revoked. Id. at EO1. On February 3, 2017, the district court 13218. The Order expressly stated that EO1 granted a temporary restraining order "did not provide a basis for discriminating for ("TRO"). Washi ngton v. Trump, No. C17- or against members of any particular 0141JLR, 2017 U.S. Dist. LEXIS 16012, religion" and was "not motivated by animus 2017 WL 462040 (W.D. Wash. Feb. 3, toward any religion." Id. at 13210. 2017). On February 4, 2017, the Government Section 2—"Temporary Suspension of Entry filed an emergency motion in our court, for Nationals of Countries of Particular seeking a stay of the TRO pending appeal. Concern During Review Period"—reinstates On February 9, 2017, this court denied the the 90-day ban on travel for nationals of six Government's emergency motion for a stay of of the seven majority-Muslim countries the injunction. Washington v. Trump, 847 identified in EO1: Iran, Libya, Somalia, F.3d 1151 (9th Cir. Sudan, Syria, and Yemen. Id. at 13213. 2017) (per curiam), reconsideration en banc Section 2 also directs the Secretary of denied, 853 F.3d 933 (9th Cir. 2017). In so Homeland Security, the Secretary of State, doing, the panel rejected the Government's and the Director of National Intelligence to arguments that EO1 was wholly "conduct a worldwide review to identify unreviewable. See id. at 1161-64. After whether, and if so what, additional determining that the states had standing information will be needed from each foreign based on the alleged harms to their country to adjudicate an application by a proprietary interests, id. at 1159-61, this national of that country for a visa, admission, court concluded that the states demonstrated or other benefit under the INA a likelihood of success on their procedural (adjudications) in order to determine that the due process claim, at least as to lawful individual is not a security or public-safety permanent residents and nonimmigrant visa threat." Id. at 13212. Section 2(c) states in holders, id. at 1164-66. The panel did not full: review the states' other claims, including the statutory-based claims. Id. at 1164. To temporarily reduce investigative burdens on relevant agencies during the review period Rather than continue with the litigation, the described in subsection (a) of this section, to Government filed an unopposed motion to ensure the proper review and maximum voluntarily dismiss the underlying appeal utilization of available resources for the after the President signed EO2. On March 8, screening and vetting of foreign nationals, to 2017, this court granted that motion, which ensure that adequate standards are substantially ended the story of EO1. The established to prevent infiltration by foreign curtain opens next to the present controversy terrorists, and in light of the national security regarding EO2. concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections

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212(f) and 215(a) of the INA, 8 U.S.C. [§§] relationship" with the United States and its 1182(f) and 1185(a), that the unrestricted recent efforts to enhance its travel entry into the United States of nationals of documentation procedures. Id. at 13212. The Iran, Libya, Somalia, Sudan, Syria, and Order also states that its scope has been Yemen would be detrimental to the interests narrowed from EO1 in response to "judicial of the United States. I therefore direct that the concerns" about the suspension of entry with entry into the United States of nationals of respect to certain categories of those six countries be suspended for 90 days aliens. Id. EO2 applies only to individuals from the effective date of this order, subject outside of the United States who do not have to the limitations, waivers, and exceptions set a valid visa as of the issuance of EO1 or forth in sections 3 and 12 of this order. EO2. EO2, unlike EO1, expressly exempts lawful permanent residents, dual citizens Regarding the six identified countries, EO2 traveling under a passport issued by a country explains: not on the banned list, asylees, and refugees already admitted to the United Each of these countries is a state sponsor of States. See id. at 13213-14. The Order also terrorism, has been significantly provides that consular officers or Customs compromised by terrorist organizations, or and Border Protection officials can exercise contains active conflict zones. Any of these discretion in authorizing case-by-case circumstances diminishes the foreign waivers to issue visas and grant entry during government's willingness or ability to share the suspension period, and offers examples of or validate important information about when waivers "could be individuals seeking to travel to the United appropriate." See id. at 13214-15. States. Moreover, the significant presence in each of these countries of terrorist Section 6—"Realignment of the U.S. organizations, their members, and others Refugee Admissions Program for Fiscal Year exposed to those organizations increases the 2017"—suspends USRAP for 120 days. Id. at chance that conditions will be exploited to 13215. During this period, the heads of enable terrorist operatives or sympathizers to certain executive agencies are directed to travel to the United States. Finally, once review the current USRAP application and foreign nationals from these countries are adjudication processes, and to determine the admitted to the United States, it is often additional procedures that "should" be difficult to remove them, because many of required for individuals seeking admission as these countries typically delay issuing, or refugees. See id. at 13215-16. Invoking 8 refuse to issue, travel documents. U.S.C. § 1182(f), Section 6(b) reduces the number of refugees to be admitted from Id. at 13210. Based on the conditions of these 110,000 to 50,000 in fiscal year 2017. Id. at six countries, "the risk of erroneously 13216. The Order also removes EO1's permitting entry of a national of one of these preference for refugees facing persecution as countries who intends to commit terrorist acts a member of a minority religion, and no or otherwise harm the national security of the longer imposes a complete ban on Syrian United States is unacceptably high." Id. at refugees. Section 6 further provides for 13211. discretionary case-by-case waivers. Id. The Order states that it no longer includes EO2 supplies additional information relevant Iraq on the list of designated countries to national security concerns. The Order because of Iraq's "close cooperative includes excerpts from the State

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Department's 2015 Country Reports on Two versions of a report from the Terrorism, that it asserts demonstrate "why . Department of Homeland Security ("DHS") . . nationals [from the designated countries] surfaced after EO1 issued. First, a draft report continue to present heightened risk to the from DHS, prepared about one month after security of the United States." Id. at EO1 issued and two weeks prior to EO2's 13210; see id. at 13210-11 (providing a brief issuance, concluded that citizenship "is description of country conditions for each of unlikely to be a reliable indicator of potential the designated countries). The Order states terrorist activity" and that citizens of that foreign nationals and refugees have countries affected by EO1 are committed acts of terrorism: "[r]arely [i]mplicated in U.S.- [b]ased [t]errorism." Specifically, the DHS Recent history shows that some of those who report determined that since the spring of have entered the United States through our 2011, at least eighty-two individuals were immigration system have proved to be threats inspired by a foreign terrorist group to carry to our national security. Since 2001, out or attempt to carry out an attack in the hundreds of persons born abroad have been United States. Slightly more than half were convicted of terrorism-related crimes in the U.S. citizens born in the United States, and United States. They have included not just the remaining persons were from twenty-six persons who came here legally on visas but different countries—with the most also individuals who first entered the individuals originating from Pakistan, country as refugees. For example, in January followed by Somalia, Bangladesh, Cuba, 2013, two Iraqi nationals admitted to the Ethiopia, Iraq, and Uzbekistan. Id. Of the six United States as refugees in 2009 were countries included in EO2, only Somalia was sentenced to 40 years and to life in prison, identified as being among the "top" respectively, for multiple terrorism-related countries-of-origin for the terrorists analyzed offenses. And in October 2014, a native of in the report. During the time period covered Somalia who had been brought to the United in the report, three offenders were from States as a child refugee and later became a Somalia; one was from Iran, Sudan, and naturalized United States citizen was Yemen each; and none was from Syria or sentenced to 30 years in prison for attempting Libya. The final version of the report, issued to use a weapon of mass destruction as part five days prior to EO2, concluded "that most of a plot to detonate a bomb at a crowded foreign-born, [U.S.]-based violent extremists Christmas-tree-lighting ceremony in likely radicalized several years after their Portland, Oregon. The Attorney General has entry to the United States, [thus] limiting the reported to me that more than 300 persons ability of screening and vetting officials to who entered the United States as refugees are prevent their entry because of national currently the subjects of counterterrorism security concerns" (emphasis added). investigations by the Federal Bureau of Investigation. The same day EO2 issued, Attorney General Jefferson B. Sessions III and Id. at 13212. EO2 does not discuss any Secretary of Homeland Security John F. instances of domestic terrorism involving Kelly submitted a letter to the President nationals from Iran, Libya, Sudan, Syria, or recommending that he "direct[] a temporary Yemen. pause in entry" from countries that are C "unable or unwilling to provide the United States with adequate information about their

182 nationals" or are designated as "state Fifth Amendment based on procedural due sponsors of terrorism." process rights; the Immigration and Nationality Act; the Religious Freedom D Restoration Act; and the Administrative Procedure Act. For their The State of Hawai'i ("the State") filed a INA claim, Plaintiffs specifically contend motion for a TRO seeking to enjoin EO1, that EO2 violates the INA by discriminating which the District of Hawai'i did not rule on on the basis of nationality, ignoring and because of the nationwide TRO entered in the modifying the statutory criteria for Western District of Washington. After EO2 determining terrorism-related issued, the State filed an amended complaint inadmissibility, and exceeding the President's challenging EO2 in order "to protect its delegated authority under the INA. Plaintiffs residents, its employers, its educational also filed a motion for a TRO along with their institutions, and its sovereignty." amended complaint. Dr. Elshikh, the Imam of the Muslim Association of Hawai'i, joined the State's On March 15, 2017, the district court granted challenge because the Order "inflicts a grave the TRO, holding that Plaintiffs had shown a injury on Muslims in Hawai'i, including likelihood of success on the merits of Dr. Elshikh, his family, and members of his their Establishment Clause claim, and Mosque." In 2015, Dr. Elshikh's wife filed an entered a nationwide injunction prohibiting I-130 Petition for Alien Relative on behalf of enforcement of Sections 2 and 6 of her mother—Dr. Elshikh's mother-in-law—a EO2. See Hawai'i v. Trump, No. CV 17- Syrian national living in Syria. 00050 DKW-KSC, 2017 U.S. Dist. LEXIS Dr. Elshikh fears that his mother-in-law will 36935, 2017 WL 1011673 (D. Haw. Mar. not be able to enter the United States if EO2 15, 2017) ("Hawai'i TRO"). On March 29, is implemented. Plaintiffs named as 2017, the district court granted Plaintiffs' Defendants Donald J. Trump, in his official motion to convert the TRO to a preliminary capacity as President of the United States; the injunction. See Hawai'i v. Trump, No. CV 17- U.S. Department of Homeland Security; John 00050 DKW-KSC, 2017 U.S. Dist. LEXIS F. Kelly, in his official capacity as Secretary 47042, 2017 WL 1167383 (D. Haw. Mar. 29, of Homeland Security; the U.S. Department 2017) ("Hawai'i PI"). The district court of State; Rex W. Tillerson, in his official declined to narrow the scope of the capacity as Secretary of State; and the United injunction, concluding that the entirety of States of America (collectively referred to as Sections 2 and 6 of the Order ran afoul of "the Government"). the Establishment Clause and that the Government did not provide a workable Plaintiffs allege that EO2 suffers similar framework for narrowing the scope of the constitutional and statutory defects as EO1 enjoined conduct. See 2017 U.S. Dist. LEXIS and claim that the Order violates: 47042, [WL] at *8. The court entered the the Establishment Clause of the First following injunction: Amendment; the equal protection guarantees of the Fifth Amendment's Due Process Defendants and all their respective officers, Clause on the basis of religion and/or national agents, servants, employees, and attorneys, origin, nationality, or alienage; the Due and persons in active concert or participation Process Clause of the Fifth with them, are hereby enjoined from Amendment based on substantive due enforcing or implementing Sections 2 and 6 process rights; the Due Process Clause of the of the Executive Order across the Nation.

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Enforcement of these provisions in all claim. Am. Foreign Serv. Ass'n v. Garfinkel, places, including the United States, at all 490 U.S. 153, 161, 109 S. Ct. 1693, 104 L. United States borders and ports of entry, and Ed. 2d 139 (1989) (per curiam); accord Lying in the issuance of visas is prohibited, pending v. Nw. Indian Cemetery Protective Ass'n, 485 further orders from this Court. U.S. 439, 445, 108 S. Ct. 1319, 99 L. Ed. 2d 534 (1988) ("A fundamental and On March 30, 2017, the Government filed a longstanding principle of judicial restraint notice of appeal. This court granted the requires that courts avoid reaching Government's unopposed motion to expedite constitutional questions in advance of the the case. The Government requests that this necessity of deciding them."). court vacate the preliminary injunction, or at least narrow the injunction, and also stay the After first determining that Plaintiffs have injunction pending appeal. standing to assert their INA-based statutory claim, we conclude that Plaintiffs have II shown a likelihood of success on the merits of that claim and that the district court's The district court held that Plaintiffs were preliminary injunction order can be affirmed entitled to preliminary relief because they in large part based on statutory grounds. For had made a strong showing of success on the reasons further explained below, we need merits of their Establishment Clause claim. not, and do not, reach the Establishment Applying the secular purpose test Clause claim to resolve this from Lemon v. Kurtzman, 403 U.S. 602, 612- appeal. See Ashwander v. Tenn. Valley Auth., 13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), 297 U.S. 288, 347, 56 S. Ct. 466, 80 L. Ed. and relying on the historical record that 688 (1936) (Brandeis, J., concurring) ("[I]f a contained "significant and unrebutted case can be decided on either of two grounds, evidence of religious animus driving the one involving a constitutional question, the promulgation of the Executive Order," the other a question of statutory construction or district court concluded that EO2 was issued general law, the Court will decide only the with an intent to disfavor people of Islamic latter."). faith. See Hawai'i TRO, 2017 U.S. Dist. LEXIS 36935, 2017 WL 1011673, at *12- III 16. In so doing, the district court decided an important and controversial constitutional Before turning to our review of Plaintiffs' claim without first expressing its views on statutory claim, we first address the Plaintiffs' statutory claims, including their Government's challenge to the preliminary INA-based claim. See 2017 U.S. Dist. LEXIS injunction order on justiciability grounds. 36935, [WL] at *11 n.11. The Government contends both that Plaintiffs lack standing to pursue this case and that the The INA claim was squarely before the case is not yet ripe. The Government further district court and briefed and argued before contends that the this court. Mindful of the Supreme Court's consular nonreviewability doctrine bars this admonition that "courts should be extremely court from reviewing EO2. We address each careful not to issue unnecessary contention in turn. constitutional rulings," "[p]articularly where, as here, a case implicates the fundamental A relationship between the Branches," we think "Article III of the Constitution limits federal- it appropriate to turn first to the INA court jurisdiction to 'Cases' and

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'Controversies.'" Massachusetts v. EPA, 549 to challenge EO2 based on their INA-based U.S. 497, 516, 127 S. Ct. 1438, 167 L. Ed. 2d statutory claim and conclude that they do. 248 (2007). "Standing to sue is a doctrine rooted in the traditional understanding of a 1 case or controversy" and limits who may "maintain a lawsuit in federal court to seek Dr. Elshikh is an American citizen of redress for a legal wrong." Spokeo, Inc. v. Egyptian descent. He alleges that EO2 will Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d prevent his mother-in-law from obtaining a 635 (2016). "[T]o satisfy Article III's visa to reunite with her family. His mother- standing requirements, a plaintiff must show in-law is a Syrian national currently living in (1) it has suffered an 'injury in fact' that is (a) Syria; she last visited her family in Hawai'i in concrete and particularized and (b) actual or 2005 and has not yet met two of her five imminent, not conjectural or hypothetical; (2) grandchildren. Dr. Elshikh's wife filed an I- the injury is fairly traceable to the challenged 130 Petition for Alien Relative on behalf of action of the defendant; and (3) it is likely, as her mother in September 2015, and the opposed to merely speculative, that the injury petition was approved in February 2016. will be redressed by a favorable After EO1 issued, Dr. Elshikh was told that decision." Friends of the Earth, Inc. v. his mother-in-law's visa application for an Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. immigrant visa had been put on hold. After 167, 180-81, 120 S. Ct. 693, 145 L. Ed. 2d EO1 was enjoined, he was notified that the 610 (2000)(citing Lujan v. Defs. of Wildlife, application had progressed to the next stage 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 of the process, and that her interview would L. Ed. 2d 351 (1992)). "At this very be scheduled at an embassy overseas. preliminary stage of the litigation, [Plaintiffs] Dr. Elshikh understandably and reasonably may rely on the allegations in their [amended fears that EO2 will prevent his mother-in-law complaint] and whatever other evidence they from entering the submitted in support of their [preliminary country. Dr. Elshikh asserts that he has injunction] motion to meet their standing based on the barriers EO2 imposes burden." Washington, 847 F.3d at in preventing him from reuniting his mother- 1159; see Lujan, 504 U.S. at 561. in-law with his family.

The district court determined that both the This court and the Supreme Court have State of Hawai'i and Dr. Elshikh have reviewed the merits of cases brought by U.S. standing to pursue their Establishment residents with a specific interest in the entry Clause claim. See Hawai'i TRO, 2017 U.S. of a foreigner. See, e.g., Kerry v. Din, 135 S. Dist. LEXIS 36935, 2017 WL 1011673, at Ct. 2128, 2131, 192 L. Ed. 2d 183 *7-10. The Government argues that Plaintiffs (2015) (involving a challenge by a U.S. fail to satisfy the requirements of Article III citizen to the denial of her husband's standing to bring their Establishment visa); Kleindienst v. Mandel, 408 U.S. 753, Clause claim. Plaintiffs must establish 756-60, 92 S. Ct. 2576, 33 L. Ed. 2d 683 standing for each of their (1972) (addressing a challenge by American claims. DaimlerChrysler Corp. v. Cuno, 547 professors to the denial of a visa to a U.S. 332, 352, 126 S. Ct. 1854, 164 L. Ed. 2d journalist they had invited to speak at several 589 (2006). As we do not reach academic events); Cardenas v. United States, Plaintiffs' Establishment Clause claim, we 826 F.3d 1164, 1167 (9th Cir. address only whether Plaintiffs have standing 2016) (determining that a U.S. citizen could challenge the denial of her husband's visa).

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Most similar to this case, in Legal Assistance Dr. Elshikh has established causation and for Vietnamese Asylum Seekers v. redressability. His injuries are fairly traceable Department of State, Bureau of Consular to the Order, satisfying causation, and Affairs, the D.C. Circuit determined that visa enjoining EO2 will remove a barrier to sponsors had standing to assert that the State reunification and redress that injury, Department's refusal to process visa satisfying redressability. applications of Vietnamese citizens living in Hong Kong violated 8 U.S.C. § 1152. 45 F.3d Dr. Elshikh has met the requirements for 469, 471-73, 310 U.S. App. D.C. 168 (D.C. constitutional standing with respect to the Cir. 1995), vacated on other grounds, 519 INA-based statutory claim. U.S. 1, 117 S. Ct. 378, 136 L. Ed. 2d 1 (1996). The court explained that the State 2 Department's actions prolonged the separation of immediate family members, The State of Hawai'i alleges two primary which resulted in injury to the sponsors. Id. theories of harm in asserting its standing: Dr. Elshikh seeks to reunite his mother-in- harm to its proprietary interests and law with his family and similarly experiences impairment of its sovereign interests. prolonged separation from her. By "[L]ike other associations and private suspending the entry of nationals from the six parties, a State is bound to have a variety of designated countries, including Syria, EO2 proprietary interests. A State may, for operates to delay or prevent the issuance of example, own land or participate in a visas to nationals from those countries, business venture." Alfred L. Snapp & Son, including Dr. Elshikh's mother-in-law. Inc. v. Puerto Rico ex rel. Barez, 458 U.S. Dr. Elshikh has alleged a concrete harm 592, 601, 102 S. Ct. 3260, 73 L. Ed. 2d 995 because EO2, specifically the operation of (1982). "And like other such proprietors [the Section 2, is a barrier to reunification with his State] may at times need to pursue those mother-in-law in light of her stalled visa interests in court." Id. at 601-02. process. See id. (holding that U.S. resident sponsors had standing to challenge the State The State asserts that it has standing because Department's refusal to process visa of the injuries inflicted on its university. The applications); Int'l Refugee Assistance University of Hawai'i ("the University"), Project v. Trump, No. 17-1351, 857 F.3d 554, which the State operates, has twenty-three 2017 U.S. App. LEXIS 9109, 2017 WL graduate students, at least twenty-nine 2273306, at *10 (4th Cir. May 25, visiting faculty members, and other 2017) (en banc), as amended (May 31, 2017) permanent faculty members from the six (identifying prolonged separation between countries designated in EO2. The State plaintiff and his wife as a concrete asserts that EO2 constrains the University's harm). That his mother-in-law's visa ability to recruit and enroll undergraduate application process was placed on hold when and graduate students, and recruit and hire EO1 took effect, but moved forward when visiting faculty from the affected countries. EO1 was enjoined, further shows that The State also contends that EO2 threatens Dr. Elshikh's injury is concrete, real, and the University's ability to fulfill its immediate if EO2 takes effect. educational mission by hampering Dr. Elshikh has thus alleged a sufficient recruitment of diverse students, preventing injury-in-fact. While not challenged by the scholars from considering employment at the Government, it is also clear that University, dissuading current professors and scholars from continuing their scholarship at

186 the University, hindering the free flow of cycle—from when the University offers ideas, and harming its values of inclusiveness admissions to when international students and tolerance. must decide whether to attend—and the uncertainty of whether EO2 will inhibit their Given the timing of the admissions cycle and ability to secure a visa before the fall this litigation, the State concedes that it is too semester begins, EO2's deterrent effect is an soon to determine the full impact on injury that is "concrete" and "imminent," as recruitment, but asserts that individuals who opposed to merely "speculative." See Lujan, are not current visa holders or lawful 504 U.S. at 560-61 (internal quotation marks permanent residents would be precluded omitted). Of course, a student who is not from considering the University. In its permitted to obtain a visa and enter our opposition brief, the State gave updated country would not accept an offer of information, explaining that eleven graduate admission. students from the countries affected by the Order have been admitted, and the University The Government next contends that Plaintiffs was still considering applications from cannot rely on events that unfolded after the twenty-one other affected applicants. After filing of the complaint to establish standing. the case was submitted, Plaintiffs This argument is not persuasive. The State supplemented the record with further updates had previously contended that its recruitment on the University's admissions cycle. At least was constrained by EO2 and its supplemental three graduate students, each from one of the declaration merely provides greater detail six designated countries, have accepted their regarding the students who may be unable to offers of admission and have committed to join the academic community this fall if EO2 attending the University. There are takes effect. We consider the supplemental eleven graduate student applicants, each from information as further evidence that EO2 will one of the six designated countries, with harm the State because students affected by pending offers of admission for the 2017-18 Section 2(c) may not attend the University, school year. University classes begin on and the University will lose tuition and August 21, 2017, but at least two of the educational benefits. students who have accepted their offers of admission must be present on campus by The State's standing can thus be grounded in August 1, 2017 and August 10, 2017, its proprietary interests as an operator of the respectively, for their graduate programs. University. EO2 harms the State's interests The State further explains that if EO2 takes because (1) students and faculty suspended effect now, these students' ability to obtain from entry are deterred from studying or visas will be impeded. teaching at the University; and (2) students who are unable to attend the University will Before Plaintiffs supplemented the record, not pay tuition or contribute to a diverse the Government argued that the State had not student body. See Washington, 847 F.3d at identified any prospective student or faculty 1161 (holding that states, as operators of member who wished to enter the universities, had Article III standing to country during Section 2(c)'s 90-day period. challenge EO1 based on harms to their However, the State's alleged harm is that proprietary interests); Texas v. United States, EO2 presently constrains their recruitment 809 F.3d 134, 155-63 (5th Cir. 2015), as efforts for students and faculty, and that EO2 revised (Nov. 25, 2015), aff'd by an equally deters prospective students and faculty divided Court, 136 S. Ct. 2271, 195 L. Ed. 2d members. Given the short admissions 638 (2016) (holding that the state of Texas

187 had standing to challenge the Deferred entities within the relevant jurisdiction" in Action for Parents of Americans and Lawful administering OCS, we conclude, at this Permanent Residents ("DAPA") program preliminary stage, that the State has made based on its alleged injury of subsidizing sufficient allegations to support standing to driver's licenses to DAPA beneficiaries). We challenge the refugee-related provisions of further conclude that the State has shown that EO2. See Alfred L. Snapp & Son, 458 U.S. at its injury is fairly traceable to EO2 and that 601; see also Virginia ex rel. Cuccinelli v. enjoining EO2 would redress its harm. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) (collecting cases where state was The State also presents an alternative found to possess sovereign standing based on standing theory: that the Order impairs its state statutes that regulated behavior or sovereign interests in carrying out its refugee provided for the administration of a state policies, among other things. A state has an program). interest in its "exercise of sovereign power over individuals and entities within the Concluding that Dr. Elshikh and the State relevant jurisdiction," which "involves the have satisfied Article III's standing power to create and enforce a legal requirements, we turn to whether code." Alfred L. Snapp & Son, 458 U.S. at Plaintiffs are within the "zone of interests" 601. The State contends that EO2 hinders the protected by the INA. exercise of its sovereign power to enforce its laws and policies and this inflicts an injury 3 sufficient to provide the State standing to challenge the Order. The State has laws Because Plaintiffs allege a statutory claim, protecting equal rights, barring we must determine whether they meet the discrimination, and fostering diversity. See, requirement of having interests that "fall e.g., Haw. Const. art. 1, §§ 2, 5; Haw. Rev. within the zone of interests protected by the Stat. §§ 489-3, 515-3. Specific to refugees, law invoked." Lexmark Int'l, Inc. v. Static the State created the Office of Community Control Components, Inc., 134 S. Ct. 1377, Services ("OCS"), which is directed to 1388, 188 L. Ed. 2d 392 (2014) (internal "[a]ssist and coordinate the efforts of all quotation marks omitted). public and private agencies providing services which affect the disadvantaged, We have little trouble determining that refugees, and immigrants." Haw. Rev. Stat. § Dr. Elshikh is within the zone of interests of 371K-4. OCS operates multiple programs for the INA to challenge EO2 based on this refugees. statutory claim. He asserts that the travel ban prevents his mother-in-law from reuniting The State has resettled three refugees this with his family. See Legal Assistance for fiscal year, and at least twenty since 2010. Vietnamese Asylum Seekers, 45 F.3d at 471- EO2 would prevent the State from assisting 72 ("The INA authorizes the immigration of with refugee resettlement and thus prevent it family members of United States citizens and from effectuating its policies aimed at permanent resident aliens. In originally assisting refugee and immigrant enacting the INA, Congress implemented the populations. See id. The State's requested underlying intention of our immigration laws injunctive relief would permit it to assist in regarding the preservation of the family unit. the resettlement of refugees, at least through Given the nature and purpose of the statute, fiscal year 2017. As the State exercises the resident appellants fall well within the "sovereign power over individuals and zone of interest Congress intended to

188 protect." (internal quotation marks, citations, the United States, as well as "uniform and alterations omitted)). provisions for the effective resettlement and absorption of those refugees who are Likewise, the State's efforts to enroll students admitted." Refugee Act of 1980, Pub. L. No. and hire faculty members who are nationals 96-212, § 101, 94 Stat. 102 (1980). The State from the six designated countries fall within argues that EO2 upsets this finely-tuned the zone of interests of the INA. The INA system devised by Congress. makes clear that a nonimmigrant student may be admitted into the United States. See 8 We conclude that Plaintiffs' claims of injury U.S.C. § 1101(a)(15)(F) (identifying students as a result of the alleged statutory violations qualified to pursue a full course of study); 8 are, at the least, "arguably within the zone of C.F.R. § 214.2(f) (providing the interests" that the INA protects. Bank of Am. requirements for nonimmigrant students, Corp. v. City of Miami, Fla., 137 S. Ct. 1296, including those in colleges and universities). 1303, 197 L. Ed. 2d 678 The INA also provides that nonimmigrant (2017) (quoting Ass'n of Data Processing scholars and teachers may be admitted into Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, the United States. See, e.g., 8 U.S.C. § 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970)). 1101(a)(15)(J) (identifying students, Plaintiffs have standing to assert their INA- scholars, trainees, teachers, professors, based statutory claim that EO2 exceeds the research assistants, specialists, or leaders in scope of the President's authority under the fields of specialized knowledge or skill); id. § INA and conflicts with various INA 1101(a)(15)(H) (identifying aliens coming to provisions. perform services in a specialty occupation); id. §1101(a)(15)(O) (identifyin B g aliens with extraordinary abilities in the sciences, arts, education, business, or The Government next argues that Plaintiffs' athletics). International students and visiting claims are speculative and not faculty may qualify for F-1 visas, J-1 visas, ripe. "Ripeness is peculiarly a question of H-1B visas, or O-1 visas. See Directory of timing, designed to prevent the courts, Visa Categories, U.S. Dep't of through avoidance of premature adjudication, State, https://travel.state.gov/content/visas/e from entangling themselves in abstract n/general/all-visa-categories.html (last disagreements." Stormans, Inc. v. Selecky, visited June 6, 2017). The INA leaves no 586 F.3d 1109, 1122 (9th Cir. 2009) (internal doubt that the State's interests in student-and quotations marks and alteration omitted). employment-based visa petitions for its "Our role is neither to issue advisory opinions students and faculty are related to the basic nor to declare rights in hypothetical cases, but purposes of the INA. to adjudicate live cases or controversies consistent with the powers granted the The State's interest in effectuating its refugee judiciary in Article III of the resettlement policies and programs also falls Constitution." Thomas v. Anchorage Equal within the zone of interests protected by the Rights Comm'n, 220 F.3d 1134, 1138 (9th INA. See 8 U.S.C. § 1101(a)(42) (defining Cir. 2000). "refugees"); id. § 1157 (providing the procedure for determining the number of We are unpersuaded by the Government's refugee admissions). These provisions of the arguments that until a student or faculty INA were amended to provide a "systematic member requests a waiver and it is denied, procedure" for the admission of refugees into or until Dr. Elshikh's mother-in-law requests

189 a waiver and she is denied, Plaintiffs injuries Dr. Elshikh's mother-in-law or the are not ripe because they assume "contingent University's prospective students and faculty future events that may not occur." Texas v. members might conceivably obtain such a United States, 523 U.S. 296, 300, 118 S. Ct. waiver, they will face substantial hardship if 1257, 140 L. Ed. 2d 406 (1998) (internal we were to first require that they try to obtain quotation marks omitted)). a waiver before we will consider their case. Cf. Abbott Labs. v. Gardner, 387 U.S. Although the waiver may, in theory, provide 136, 149, 87 S. Ct. 1507, 18 L. Ed. 2d 681 students, visiting faculty members, or (1967). We conclude that the claim is ripe for Dr. Elshikh's mother-in-law an opportunity review. to obtain visas, the waiver is discretionary. Indeed, no one can count on it. C The Order poses hardships to nationals from the six designated countries by barring Finally, the Government renews the throughout the suspension period their ability argument it made before this to obtain visas. The waiver provision neither court in Washington v. Trump that we may guarantees that waivers will be granted nor not review EO2 because the provides a process for applying for a waiver; consular nonreviewability doctrine counsels moreover, the ultimate decision is clearly that the decision to issue or withhold a visa is committed to a consular officer's not subject to judicial review. See Li Hing of discretion. See 82 Fed. Reg. at 13214 ("Case- Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 by-case waivers could be appropriate in (9th Cir. 1986) ("[I]t has been consistently circumstances such as the following . . . .") held that the consular official's decision to (emphasis added); id. at 13219 (stating issue or withhold a visa is not subject either that nothing in the Order provides any to administrative or judicial review."). We "enforceable" rights). The discretionary reject this argument. waiver is not "a sufficient safety valve," Washington, 847 F.3d at 1169, and is Plaintiffs do not seek review of an individual a far cry from the "contingent future" argued consular officer's decision to grant or to deny by the Government. Here, nationals from the a visa pursuant to valid regulations, which six designated countries, including could implicate the Dr. Elshikh's mother-in-law and students consular nonreviewability doctrine. who have accepted, or been offered, Plaintiffs instead challenge "the admission to the University of Hawai'i, are President's promulgation of sweeping burdened by EO2 because they are not immigration policy." Washington, 847 F.3d permitted entry, and whether they might at 1162. Courts can and do review both obtain a waiver is speculative and at the constitutional and statutory "challenges to the discretion of a consular officer or a Customs substance and implementation of and Border Protection official. See 82 Fed. immigration policy." Id. at 1163; see, Reg. at 13214. e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187-88, 113 S. Ct. 2549, 125 L. Ed. We decline the Government's invitation to 2d 128 (1993)(addressing the merits of a wait until Plaintiffs identify a visa applicant challenge that an executive order violated the who was denied a discretionary waiver to INA and the United Nations Convention assess whether Plaintiffs have shown a Relating to the Status of Refugees); INS v. likelihood of success on the merits of their Chadha, 462 U.S. 919, 940-41, 103 S. Ct. claims. Regardless of whether 2764, 77 L. Ed. 2d 317 (1983) (addressing

190 whether a section of the INA that authorized of the appeal of the preliminary injunction one House of Congress to invalidate a order. decision of the Executive to allow a deportable alien to remain in the United IV States was unconstitutional). A This case is justiciable because Plaintiffs seek judicial review of EO2, A preliminary injunction is "an contending that EO2 exceeds the statutory extraordinary remedy that may only be authority delegated by Congress and awarded upon a clear showing that the constitutional boundaries. "This is a familiar plaintiff is entitled to such relief." Winter v. judicial exercise." Zivotofsky ex rel. NRDC, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, Zivotofsky v. Clinton, 566 U.S. 189, 196, 132 172 L. Ed. 2d 249 (2008). "A plaintiff S. Ct. 1421, 182 L. Ed. 2d 423 (2012). We seeking a preliminary injunction must reject the Government's argument that the establish [1] that he is likely to succeed on the Order is not subject to judicial merits, [2] that he is likely to suffer review. Although "[t]he Executive has broad irreparable harm in the absence of discretion over the admission and exclusion preliminary relief, [3] that the balance of of aliens, [] that discretion is not boundless. equities tips in his favor, and [4] that an It extends only as far as the statutory injunction is in the public interest." Id. at 20. authority conferred by Congress and may not We may affirm the district court's entry of the transgress constitutional limitations. It is the preliminary injunction "on any ground duty of the courts, in cases properly before supported by the record." Enyart v. Nat'l them, to say where those statutory and Conference of Bar Exam'rs, Inc., 630 F.3d constitutional boundaries lie." Abourezk v. 1153, 1159 (9th Cir. 2011). Reagan, 785 F.2d 1043, 1061, 251 U.S. App. D.C. 355 (D.C. Cir. 1986), aff'd, 484 U.S. 1, B 108 S. Ct. 252, 98 L. Ed. 2d 1 (1987). We consider whether Plaintiffs are entitled to Whatever deference we accord to the preliminary relief based on the likelihood that President's immigration and national security EO2 violates the INA. First, we address policy judgments does not preclude us from whether the President complied with the reviewing the policy at all. See Rostker v. conditions set forth in § 1182(f), which are Goldberg, 453 U.S. 57, 70, 101 S. Ct. 2646, necessary for invoking his authority. We next 69 L. Ed. 2d 478 (1981) ("[D]eference does address the conflicts between EO2 and other not mean abdication."); Holder v. provisions of the INA. Humanitarian Law Project, 561 U.S. 1, 34, 130 S. Ct. 2705, 177 L. Ed. 2d 355 1 (2010) ("Our precedents, old and new, make clear that concerns of national security and Under Article I of the Constitution, the power foreign relations do not warrant abdication of to make immigration laws "is entrusted the judicial role."). exclusively to Congress." Galvan v. Press, 347 U.S. 522, 531, 74 S. Ct. 737, 98 L. Ed. We do not abdicate the judicial role, and we 911 (1954); see U.S. Const. art. I, § 8, cl. affirm our obligation "to say what the law is" 4 ("The Congress shall have Power . . . [t]o in this case. Marbury v. Madison, 5 U.S. 137, establish an uniform Rule of Naturalization . 177, 2 L. Ed. 60 (1803). We turn to the merits

191

. . ."); Fiallo v. Bell, 430 U.S. 787, 792, 97 S. suspend the entry of aliens or classes of Ct. 1473, 52 L. Ed. 2d 50 (1977) ("[O]ver no aliens. However, this authority is not conceivable subject is the legislative power unlimited. Cf. Kent v. Dulles, 357 U.S. 116, of Congress more complete than it is over the 129, 78 S. Ct. 1113, 2 L. Ed. 2d 1204 admission of aliens." (internal quotation (1958) ("[I]f that power is delegated, the marks omitted)); [**49] id. at 796 ("The standards must be adequate to pass scrutiny conditions of entry for every alien, the by the accepted tests."); J.W. Hampton, Jr., & particular classes of aliens that shall be Co. v. United States, 276 U.S. 394, 409, 48 S. denied entry altogether, the basis for Ct. 348, 72 L. Ed. 624, Treas. Dec. 42706 determining such classification . . . have been (1928) ("[L]egislative action is not a recognized as matters solely for the forbidden delegation of legislative power" if responsibility of the Congress . . . ." (internal Congress provides an "intelligible principle quotation marks omitted)). to which the person or body authorized . . . is directed to conform."). Section In the INA of 1952, Congress delegated some 1182(f) requires that the President find that of its power to the President through Section the entry of a class of aliens into the United 212(f), which provides: States would be detrimental to the interests of the United States. This section requires that Whenever the President finds that the entry the President's findings support the of any aliens or of any class of aliens into the conclusion that entry of all nationals from the United States would be detrimental to the six designated countries, all refugees, and interests of the United States, he may by refugees in excess of 50,000 would be proclamation, and for such period as he shall harmful to the national interest. There is no deem necessary, suspend the entry of all sufficient finding in EO2 that the entry of the aliens or any class of aliens as immigrants or excluded classes would be detrimental to the nonimmigrants, or impose on the entry of interests of the United States. aliens any restrictions he may deem to be appropriate. i 8 U.S.C. § 1182(f). Section 2(c) declares that "the unrestricted In Section 2(c) of the Order, the President entry into the United States of nationals of invokes this power along with § 1185(a) to Iran, Libya, Somalia, Sudan, Syria, and suspend for 90 days the entry of nationals Yemen would be detrimental to the interests from the six designated countries. See 82 Fed. of the United States" and directs that the entry Reg. at 13213. In Section 6(a) of the Order, of nationals from those designated countries the President invokes neither section to be barred for 90 days. 82 Fed. Reg. at 13213. suspend travel of refugees and to suspend The provision bans more than 180 million decisions on applications for refugee status people from entry based on their national for 120 days, but, in Section 6(b), the origin, including nationals who may have President invokes § 1182(f) to cap refugee never been physically present in those admissions at 50,000 for the 2017 fiscal countries. See Brief of Former National year. Id. at 13215-16. Security Officials as Amici Curiae, Dkt. No. 108 at 17. Section 2(c) states: The parties dispute whether EO2 falls clearly within the President's congressionally [1] To temporarily reduce investigative delegated authority. To be sure, § burdens on relevant agencies during the 1182(f) gives the President broad authority to review period [of the United States' vetting

192 procedures], [2] to ensure the proper review Each of these countries is a state sponsor of and maximum utilization of available terrorism, has been significantly resources for the screening and vetting of compromised by terrorist organizations, or foreign nationals, [3] to ensure that adequate contains active conflict zones. Any of these standards are established to prevent circumstances diminishes the foreign infiltration by foreign terrorists, and [4] in government's willingness or ability to share light of the national security concerns or validate important information about referenced in section 1 of this order, I hereby individuals seeking to travel to the United proclaim, pursuant to sections States. Moreover, the significant presence in 212(f) and 215(a) of the INA, 8 U.S.C. [§§] each of these countries of terrorist 1182(f) and 1185(a), that the unrestricted organizations, their members, and others entry into the United States of nationals of exposed to those organizations increases the Iran, Libya, Somalia, Sudan, Syria, and chance that conditions will be exploited to Yemen would be detrimental to the interests enable terrorist operatives or sympathizers to of the United States. I therefore direct that the travel to the United States. Finally, once entry into the United States of nationals of foreign nationals from these countries are those six countries be suspended. admitted to the United States, it is often difficult to remove them, because many of 82 Fed. Reg. at 13213. The Government these countries typically delay issuing, or explains that the Order's objective "is to refuse to issue, travel documents. address the risk that potential terrorists might Id. at 13210 (emphasis added). exploit possible weaknesses in the Nation's screening and vetting procedures while the Because of these country conditions, the review of those procedures is underway." Order concludes that "the risk of erroneously We reject the first three reasons provided in permitting entry of a national of one of these Section 2(c) because they relate to countries who intends to commit terrorist acts preservation of government resources to or otherwise harm the national security of the review existing procedures and ensure United States is unacceptably high." Id. at adequate vetting procedures. There is no 13211. The Order further indicates that finding that present vetting standards are "hundreds of persons born abroad have been inadequate, and no finding that absent the convicted of terrorism-related crimes in the improved vetting procedures there likely will United States[,]" but does not identify the be harm to our national interests. These number of nationals from the six designated identified reasons do not support the countries who have been so conclusion that the entry of nationals from convicted. See id. at 13212. the six designated countries would be harmful to our national interests. The Order makes no finding that nationality alone renders entry of this broad class of We turn to the fourth reason—national individuals a heightened security risk to the security concerns—and examine whether it United States. See Int'l Refugee Assistance confers a legally sufficient basis for the Project, 2017 U.S. App. LEXIS 9109, 2017 President's conclusion that the nationality- WL 2273306, at *31 (Keenan, J., concurring based entry restriction is warranted. Section in part and concurring in the judgment) 1(d) of the Order explains that nationals from ("[T]he Second Executive Order does not Iran, Libya, Somalia, Sudan, Syria, and state that any nationals of the six identified Yemen warrant additional scrutiny because: countries, by virtue of their nationality, intend to commit terrorist acts in the United

193

States or otherwise pose a detriment to the Although the Order explains that country interests of the United States."). conditions in the six designated countries lessen their governments' ability to share The Order does not tie these nationals in any information about nationals seeking to travel way to terrorist organizations within the six to our country, the Order specifically avoids designated countries. It does not identify making any finding that the current screening these nationals as contributors to active processes are inadequate. As the law stands, conflict or as those responsible for insecure a visa applicant bears the burden of showing country conditions. It does not provide any that the applicant is eligible to receive a visa link between an individual's nationality and or other document for entry and is not their propensity to commit terrorism or their inadmissible. See 8 U.S.C. § 1361. The inherent dangerousness. In short, the Order Government already can exclude individuals does not provide a rationale explaining why who do not meet that burden. See id. The permitting entry of nationals from the six Order offers no further reason explaining designated countries under current protocols how this individualized adjudication process would be detrimental to the interests of the is flawed such that permitting entry of an United States. entire class of nationals is injurious to the interests of the United States. The Order's discussion of country conditions fails to bridge the gap. Indeed, its use of Finally, the Order relies on 8 U.S.C. § nationality as the sole basis for suspending 1187(a)(12) to explain why the six countries entry means that nationals without significant have been designated. 82 Fed. Reg. at ties to the six designated countries, such as 13210. In § 1187(a)(12), Congress prevented those who left as children or those whose use of the Visa Waiver Program by dual nationality is based on parentage alone, nationals of, or those who have visited in the should be suspended from entry. Yet, last six years, (1) Iraq and Syria, (2) any nationals of other countries who do have country designated by the Secretary of State meaningful ties to the six designated as a state sponsor of terrorism, and (3) any countries—and may be contributing to the other country designated as a country of very country conditions discussed—fall concern by the Secretary of Homeland outside the scope of Section 2(c). Security, in consultation with the Secretary of Consequently, EO2's focus on nationality State and the Director of National "could have the paradoxical effect of barring Intelligence. Rather than setting an outright entry by a Syrian national who has lived in ban on entry of nationals from these Switzerland for decades, but not a Swiss countries, Congress restricted access to the national who has immigrated to Syria during tourist Visa Waiver Program and instead its civil war." Hawai'i TRO, 2017 U.S. Dist. required that persons who are nationals of or LEXIS 36935, 2017 WL 1011673, at have recently traveled to these countries enter *15 (internal quotation marks and alterations the United States with a visa. This provision omitted); see also Brief of the Cato reflects Congress's considered view on Institute as Amicus Curiae, Dkt. No. 170 at similar security concerns that the Order seeks 14-15 (providing statistics on nationals of the to address. See Chadha, 462 U.S. at 951, designated countries living in other countries 959 (explaining that our founders as migrants, refugees, or asylum seekers and "consciously" chose to place the legislative explaining that Syrian and Iranian nationals process in the hands of a "deliberate and do not gain nationality by virtue of their place deliberative" body). The Order identifies no of birth). new information to justify Section 2(c)'s

194 blanket ban as contrasted with § Section 6(a) suspends travel of refugees into 1187(a)(12)'s restriction from the Visa the United States under USRAP and Waiver Program. Moreover, relying on § suspends decisions on applications for 1187(a)(12) alone, which requires that aliens refugee status for 120 days but does not from these countries undergo vetting through specifically announce that the entry of visa procedures, does not explain why refugees would be detrimental to the interests their entry would be detrimental to the of the United States. 82 Fed. Reg. at 13215. interests of the United States. To the contrary, Assuming the President also relied on § it effectively negates the Order's statement of 1182(f) to suspend USRAP for 120 days, detriment—that the "unrestricted entry into EO2 provides the following information to the United States of nationals [of the six possibly support the conclusion that refugee designated countries] would be detrimental to admissions would injure the national interest. the interests of the United States." 82 Fed. First, EO2 explains that the screening and Reg. at 13213 (emphasis added). Section vetting procedures associated with USRAP 1187(a)(12) dictates that the entry of "play a crucial role in detecting foreign individuals covered by the Order is never nationals who may commit, aid, or support "unrestricted." acts of terrorism and in preventing those individuals from entering the United States," In conclusion, the Order does not offer a and that it is the policy of the United States to sufficient justification to suspend the entry of improve screening and vetting procedures more than 180 million people on the basis of associated with USRAP. Id. at nationality. National security is not a 13209. Section 1(h) cites two examples of "talismanic incantation" that, once invoked, refugees who have been convicted of can support any and all exercise of executive terrorism-related crimes in the United States: power under § 1182(f). United States v. [1] [I]n January 2013, two Iraqi nationals Robel, 389 U.S. 258, 263-64, 88 S. Ct. 419, admitted to the United States as refugees in 19 L. Ed. 2d 508 (1967); see also Korematsu 2009 were sentenced to 40 years and to life in v. United States, 323 U.S. 214, 235, 65 S. Ct. prison, respectively, for multiple terrorism- 193, 89 L. Ed. 194 (1944) (Murphy, J., related offenses. [2] [I]n October 2014, a dissenting) ("[T]he exclusion order native of Somalia who had been brought to necessarily must rely for its reasonableness the United States as a child refugee and later upon the assumption that all persons of became a naturalized United States citizen Japanese ancestry may have a dangerous was sentenced to 30 years in prison for tendency to commit sabotage and espionage attempting to use a weapon of mass and to aid our Japanese enemy in other ways. destruction . . . . It is difficult to believe that reason, logic or experience could be marshalled in support of 82 Fed. Reg. at 13212. Section 1(h) also such an assumption."). Section explains that there are "more than 300 1182(f) requires that the President exercise persons who entered the United States as his authority only after meeting the refugees [who] are currently the subjects of precondition of finding that entry of an alien counterterrorism investigations by the or class of aliens would be detrimental to the Federal Bureau of Investigation." Id. interests of the United States. Here, the President has not done so. EO2 does not reveal any threat or harm to warrant suspension of USRAP for 120 days ii and does not support the conclusion that the entry of refugees in the interim time period

195 would be harmful. Nor does it provide any previous target admission of 110,000 indication that present vetting and screening refugees this fiscal year was justified by procedures are inadequate. Instead, EO2 humanitarian concerns or otherwise in the justifies the 120-day suspension as a review national interest, see 8 U.S.C. § 1157(a)(2), period of USRAP application and but that the entry of more than 50,000 adjudication processes. 82 Fed. Reg. at refugees this same fiscal year would be 13215. The Government reiterates that the detrimental to the national interest. Here too, President directed the suspension "in order to the President did not meet the statutory allow the Secretary of State to review precondition of exercising his authority application and adjudication processes." under § 1182(f) to cap refugee admissions. These explanations do not support a finding The actions taken in Sections 2 and 6 require that the travel and admission of refugees the President first to make sufficient findings would be detrimental to the interests of the that the entry of nationals from the six United States. designated countries and the entry of all refugees would be detrimental to the interests iii of the United States. We conclude that the President did not satisfy this precondition Section 6(b) of EO2 restricts entry of before exercising his delegated authority. refugees to no more than 50,000 in the 2017 Plaintiffs have shown a likelihood of success fiscal year because entry in excess of 50,000 on the merits of their claim that the President "would be detrimental to the interests of the exceeded his authority under §§ United States." 82 Fed. Reg. at 13216. But in 1182(f) and 1185(a). accordance with 8 U.S.C. § 1157, President Obama previously determined that the 2 admission of 110,000 refugees to the United States during fiscal year 2017 was justified Plaintiffs contend that Section 2(c) of the by humanitarian concerns or otherwise in the Order violates the INA because it national interest. See Presidential discriminates on the basis of nationality, thus Determination on Refugee Admissions for violating the non-discrimination mandate Fiscal Year 2017, Presidential Determination of § 1152(a)(1)(A) of the INA. They argue No. 2016-13, 81 Fed. Reg. 70315 (Sept. 28, that although the President is given broad 2016); see also Proposed Refugee authority under § 1182(f), this authority is Admissions for Fiscal Year 2017: Report to restrained by § 1152(a)(1)(A). the Congress, https://www.state.gov/documents/ Contemporaneous to enacting the Civil organization/262168.pdf . Rights Act of 1964 and the Voting Rights Act of 1965, Congress passed the INA of 1965 to To the extent that 60,000 additional refugees eliminate the "national origins system as the can be considered a class of aliens, EO2 basis for the selection of immigrants to the makes no findings to justify barring entry in United States." H.R. Rep. No. 89-745, at 8 excess of 50,000 as detrimental to the (1965). Section 1152(a)(1)(A) was enacted as interests of the United States. EO2 gives no part of that act, and provides: explanation for why the 50,001st to the 110,000th refugee would be harmful to the [N]o person shall receive any preference or national interest, nor does it specify any priority or be discriminated against in the further threat to national security. And there issuance of an immigrant visa because of the is not any rationale explaining why the

196 person's race, sex, nationality, place of birth, *52 (Thacker, J., concurring) (explaining that or place of residence. the Government's "own arguments and the 8 U.S.C. § 1152(a)(1)(A) (emphasis text and operation of [EO2] belie [the] added). Section 1152(a)(1)(A) contains notion" that the visa issuance process is a specific exemptions, and § 1182(f) is not different activity than suspension of entry). among them. We cannot blind ourselves to the fact that, for The Government tries to reconcile the Order's nationals of the six designated countries, EO2 Section 2(c) with § 1152(a)(1)(A) by arguing is effectively a ban on the issuance of that Section 2(c) bars entry of nationals from immigrant visas. If allowed to stand, EO2 the six designated countries but does not deny would bar issuance of visas based on the issuance of immigrant visas based on nationality in violation of § nationality. EO2's suspension of entry on the 1152(a)(1)(A). The Government did not basis of nationality, however, in substance dispute this point at oral argument, and it operates as a ban on visa issuance on the basis stands to reason that the whole system of the of nationality. The Order's text confirms as visa issuance would grind to a halt for much. Its primary purpose is to evaluate nationals of the six designated screening and vetting procedures associated countries whose entry is barred from the with the visa issuance process. 82 Fed. Reg. United States. Issuance of visas will at 13209. EO2 affects nationals of the six automatically stop for those who are banned designated countries who were outside of the based on nationality. Yet Congress could not United States on the effective date of the have used "more explicit language" in Order but did not have a valid visa at specific "unambiguously direct[ing] that no times, such as the effective date of EO1. 82 nationality-based discrimination shall Fed. Reg. at 13213. Further, it provides for a occur." Legal Assistance for Vietnamese waiver so consular officers or Customs and Asylum Seekers, 45 F.3d at 473. Border Protection officials may authorize the issuance of visas during the suspension The Government additionally argues that § period. Id. at 13214. The Government also 1152(a)(1)(A) does not displace the stresses that it should not be required to issue President's preexisting authority under § visas for aliens who are validly barred from 1182(f), because the President may validly entry, explaining that "[r]equiring that such bar entry and the non-discrimination mandate aliens be issued visas permitting them to applies strictly to the issuance of visas. Based travel to this country, only to be denied entry on the plain statutory text, the Government upon arrival, would create needless contends that the non-discrimination difficulties and confusion." Indeed, the mandate of § 1152(a)(1)(A) does not reach Government clarified at oral argument that as the President's suspension of entry under § a practical matter, the entry ban would be 1182(f). implemented through visa denials. Moreover, the statute makes clear that aliens deemed This argument, however, presents a clear inadmissible under § 1182, including under § conflict between § 1152(a)(1)(A) and § 1182, 1182(f) "are ineligible to receive visas," thus because it would enable the President to confirming the substantial overlap between a restore discrimination on the basis of denial of entry under § 1182(f) and a visa nationality that Congress sought to denial. See 8 U.S.C. § 1182(a); see also Int'l eliminate. It is our duty, if possible, to Refugee Assistance Project, 2017 U.S. App. reconcile the President's statutory authority LEXIS 9109, 2017 WL 2273306, at under § 1182(f) with the non-discrimination

197 mandate of § 1152(a)(1)(A). We begin with Brief of Technology Companies as Amici the instruction that "all parts of a statute, if at Curiae, Dkt. No. 180 at 20. We do not all possible, are to be given suggest that visa holders must gain automatic effect." Weinberger v. Hynson, Westcott & entry into the United States, but rather, that Dunning, Inc., 412 U.S. 609, 633, 93 S. Ct. visa holders cannot be discriminated against 2469, 37 L. Ed. 2d 207 (1973); accord Food on the basis of "race, sex, nationality, place & Drug Admin. v. Brown & Williamson of birth, or place of residence" throughout the Tobacco Corp., 529 U.S. 120, 133, 120 S. Ct. visa process, whether during the issuance of 1291, 146 L. Ed. 2d 121 (2000) ("A court a visa or at the port of entry. must . . . fit, if possible, all parts into an harmonious whole." (internal citation and Our conclusion that § 1152(a)(1)(A)'s non- quotation marks omitted)). We also look "to discrimination mandate cabins the President's the design of the statute as a whole and to its authority under § 1182(f) is reinforced by object and policy." Gozlon-Peretz v. United other canons of statutory construction. States, 498 U.S. 395, 407, 111 S. Ct. 840, 112 First, a later enacted, more specific statute L. Ed. 2d 919 (1991) (quoting Crandon v. generally governs over an earlier, more United States, 494 U.S. 152, 158, 110 S. Ct. general one. See Antonin Scalia & Bryan A. 997, 108 L. Ed. 2d 132 (1990)). Garner, Reading Law: The Interpretation of Legal Texts 183-87 (2012). Here, § Under the Government's argument, the 1152(a)(1)(A) was enacted in 1965, after § President could circumvent the limitations set 1182(f) was enacted in 1952. Section by § 1152(a)(1)(A) by permitting the 1152(a)(1)(A) is also more specific, and sets issuance of visas to nationals of the six a limitation on the President's broad authority designated countries, but then deny them to exclude aliens—he may do so, but not in a entry. Congress could not have intended to way that discriminates based on permit the President to flout § 1152(a) so nationality. See RadLAX Gateway Hotel, easily. See Dada v. Mukasey, 554 U.S. 1, 16, LLC v. Amalgamated Bank, 566 U.S. 639, 128 S. Ct. 2307, 171 L. Ed. 2d 178 132 S. Ct. 2065, 2071, 182 L. Ed. 2d 967 (2008) (courts should not read statutes in (2012) ("The general/specific canon is such a way that renders them a "nullity" or is perhaps most frequently applied to statutes in "unsustainable"). which a general permission or prohibition is contradicted by a specific prohibition or To avoid this result, and to give effect to § permission. To eliminate the contradiction, 1152(a)(1)(A), the section "is best read to the specific provision is construed as an prohibit discrimination throughout the visa exception to the general one."). process, which must include the decision whether to admit a visa holder upon Second, § 1152(a)(1)(A) specifically presenting the visa." Brief of Former identifies exemptions from the non- Immigration and Homeland Security discrimination mandate, implying that Officials as Amici Curiae, Dkt. No. 176 at 9. unmentioned sections are not In prohibiting nationality-based exempted. See United Dominion Indus., Inc. discrimination in the issuance of immigrant v. United States, 532 U.S. 822, 836, 121 S. visas, Congress also in effect prohibited Ct. 1934, 150 L. Ed. 2d 45 (2001) ("The logic nationality-based discrimination in the that invests the omission with significance is admission of aliens. "Congress could not familiar: the mention of some implies the have intended to prohibit discrimination at exclusion of others not mentioned."). Section the embassy, but permit it at the airport gate." 1152(a)(1)(A) explicitly exempts three

198 different INA provisions from its 1986). The proclamation did not exclude all application—8 U.S.C. §§ foreign nationals, as exceptions were 1101(a)(27), 1151(b)(2)(A)(i), and 1153—all provided, and the proclamation was in of which deal with giving preference to response to Cuba's decision "'to suspend all certain immigrants, such as family members types of procedures regarding the execution' of current citizens and permanent of the December 14, 1984, immigration residents. Had Congress likewise intended to agreement between the United States and permit § 1182(f) to override § Cuba." Id. To be clear, Presidents have 1152(a)(1)(A)'s non-discrimination invoked §§ 1182(f) and 1185(a)(1) to restrict requirement, it would have done so in the certain aliens or classes of aliens from same way it did for the other provisions. entering the United States, but EO2 is unprecedented in its scope, purpose, and The Government contends that §§ breadth. 1182(f) and 1185(a)(1) "have long been understood to permit the president to draw The Government also argues that the nationality-based distinctions." However, as President may engage in discrimination on discussed above, supra note 13, prior the basis of nationality because of the executive orders and proclamations did not exception provided in § suspend classes of aliens on the basis of 1152(a)(1)(B). Section national origin, but instead on the basis of 1152(a)(1)(B) provides, "[n]othing in [§ affiliation or culpable conduct. See Kate M. 1152(a)(1)(A)] shall be construed to limit the Manuel, Executive Authority to Exclude authority of the Secretary of State to Aliens: In Brief 6-10, Congressional determine the procedures for the processing Research Service (2017). The other instances of immigrant visa applications or the cited by the Government are locations where such applications will be distinguishable. The executive order at issue processed." However, this provision governs in Sale v. Haitian Centers Council, Inc., 509 the Secretary of State's manner and place for U.S. 155, 113 S. Ct. 2549, 125 L. Ed. 2d 128 processing applications, not the President's (1993), made no nationality-based asserted ability to deny immigrant visas on distinctions and concerned "suspend[ing] the the basis of nationality. entry of aliens coming by sea to the United States without necessary Having considered the President's authority documentation." Exec. Order No. 12807, 57 under § 1182(f) and the non-discrimination Fed. Reg. 23133 (May 24, 1992). President mandate of § 1152(a)(1)(A), we also Carter's executive orders in response to the conclude that Plaintiffs have shown a Iranian hostage crisis delegated authority to likelihood of success on the merits of their the Secretary of State and the Attorney claim that Section 2(c) of the Order, in General to prescribe limitations governing suspending the issuance of immigrant visas the entry of Iranian nationals and did not ban and denying entry based on nationality, Iranian immigrants outright. See Exec. Order exceeds the restriction of § 12172, 44 Fed. Reg. 67947 (Nov. 26, 1152(a)(1)(A) and the overall statutory 1979), amended by Exec. Order 12206, 45 scheme intended by Congress. Fed. Reg. 24101 (Apr. 7, 1980). Finally, President Reagan's Proclamation 5517 3 suspended the entry of Cuban nationals coming as immigrants, with some Aside from the President's failure to make the exceptions. 51 Fed. Reg. 30470 (Aug. 22, requisite findings to justify reducing the entry

199 of refugees in fiscal year 2017 as an exercise before the start of the new fiscal year, and (2) of authority under § 1182(f), Plaintiffs after appropriate consultation with Congress. contend that 8 U.S.C. § 1157 circumscribes The Government responds that § 1157 only the President's actions in setting the number refers to a ceiling—not the floor—for the of refugees to be admitted this fiscal year. We number of refugees who may be admitted, agree. and that §§ 1182(f) and 1185(a)(1) permit the President to lower the number of refugees The Refugee Act of 1980 amended the INA permitted to enter. "to provide a permanent and systematic procedure for the admission to this country of We disagree. This interpretation reads out the refugees of special humanitarian concern to language that the number of refugees who the United States, and to provide may be admitted shall be the number comprehensive and uniform provisions for determined by the President. See 8 U.S.C. § the effective resettlement and absorption of 1157(a)(2). The Government's argument those refugees who are admitted." Pub. L. would require us to conclude that Congress No. 96-212, § 101, 94 Stat. 102 (1980). set forth very specific requirements for the The Act requires that the President, after President to provide the number and consulting with Congress, set the annual allocation of the refugees to be admitted as admission of refugees before the beginning justified by humanitarian concerns or the of every fiscal year: national interest, after appropriate consultation, only to permit the President to [T]he number of refugees who may be order a midyear reduction in the level of admitted under this section in any fiscal year refugee admissions, and to do so without . . . shall be such number as the President consulting Congress. Section determines, before the beginning of the fiscal 1157 contemplates that the President, after year and after appropriate consultation, is consultation with Congress, may increase the justified by humanitarian concerns or is number of refugees admitted in the middle of otherwise in the national interest. the fiscal year, but does not provide a 8 U.S.C. § 1157(a)(2). "Appropriate mechanism for the President to decrease the consultation" is defined as "discussions in number of refugees to be admitted mid- person by designated Cabinet-level year. See id. § 1157(b) (describing how, after representatives of the President with appropriate consultation, the President may members of the Committees on the Judiciary fix a number of additional refugees to be of the Senate and of the House of admitted to the United States). Representatives." Id. § 1157(e). After undergoing this process in 2016, President Well-settled interpretive canons further Obama determined that the admission of explain why § 1182(f) does not give the 110,000 refugees to the United States during President authority to override the fiscal year 2017 was justified by requirements of § 1157. First, applying the humanitarian concerns or otherwise in the "later in time" canon, § 1182(f) was adopted national interest. See 81 Fed. Reg. at in 1952, and § 1157 was adopted in 1980, 70315. Section 6(b) of EO2 reduced the indicating that this subsequent statute shapes refugee admission cap for the same year to the scope of the President's 50,000. See 82 Fed. Reg. at 13216. authority. See Brown & Williamson Tobacco Corp., 529 U.S. at 143 ("The 'classic judicial The statute requires the President to set the task of reconciling many laws enacted over number of annual refugee admissions (1) time, and getting them to 'make sense' in

200 combination, necessarily assumes that the (4) An analysis of the anticipated social, implications of a statute may be altered by the economic, and demographic impact of their implications of a later statute.'" admission to the United States. (quoting United States v. Fausto, 484 U.S. (5) A description of the extent to which other 439, 453, 108 S. Ct. 668, 98 L. Ed. 2d 830 countries will admit and assist in the (1988))). resettlement of such refugees. (6) An analysis of the impact of the Second, § 1157, the more specific provision, participation of the United States in the controls the more general § resettlement of such refugees on the foreign 1182(f). See id. ("This is particularly so policy interests of the United States. where the scope of the earlier statute is broad (7) Such additional information as may be but the subsequent statutes more specifically appropriate or requested by such members. address the topic at Id. According to the statute, this information hand."); Radzanower v. Touche Ross & Co., would ideally be provided at least two weeks 426 U.S. 148, 153, 96 S. Ct. 1989, 48 L. Ed. in advance of the discussions. Id. 2d 540 (1976). Section 1157 provides a very specific process for "appropriate Congress prescribed specific actions the consultation" that the President must follow President must take before setting the number before setting the number of refugees to be of refugees who may be admitted as justified admitted to the United States that is justified by humanitarian concerns or as otherwise in by humanitarian concerns or is otherwise in the national interest. See generally 8 U.S.C. § the national interest. "Appropriate 1157. The President relied on § 1182(f)—an consultation" requires in-person discussions earlier and more general provision—to between cabinet-level representatives and conclude that admission of refugees above members of Congress "to review the refugee 50,000 is detrimental to the interest of the situation or emergency refugee situation, to United States. But § 1157, a "narrow, precise, project the extent of possible participation of and specific" statutory provision, may not be the United States therein, [and] to discuss the overridden by § 1182(f), a provision reasons for believing that the proposed "covering a more generalized spectrum" of admission of refugees is justified by issues. Radzanower, 426 U.S. at 153-54; see humanitarian concerns or grave humanitarian also Nitro-Lift Techs., L.L.C. v. Howard, 568 concerns or is otherwise in the national U.S. 17, 133 S. Ct. 500, 504, 184 L. Ed. 2d interest . . . ." 8 U.S.C. § 1157(e). As part of 328 (2012) (explaining that the interpretive the consultation, the Executive also must principle generalia specialibus non derogant present the following information: means that "the specific governs the general" and applies to conflict between "laws of (1) A description of the nature of the refugee equivalent dignity"). situation. (2) A description of the number and As a result, Plaintiffs have also shown a allocation of the refugees to be admitted and likelihood of success on the merits for their an analysis of conditions within the countries argument that Section 6(b) of EO2 conflicts from which they came. with 8 U.S.C. § 1157. (3) A description of the proposed plans for their movement and resettlement and the 4 estimated cost of their movement and resettlement. Plaintiffs additionally argue that EO2 conflicts with 8 U.S.C. § 1182(a)(3)(B),

201 which sets forth detailed and "specific criteria that he possesses in his own right plus all that for determining terrorism-related Congress can delegate." Id. at 635. However, inadmissibility." Din, 135 S. Ct. at 2140. given the express will of Congress through § 1152(a)(1)(A)'s non-discrimination EO2 attempts to eliminate the marginal risk mandate, § 1157's procedure for refugee of "erroneously permitting entry of a national admissions to this country, and § of one of these countries who intends to 1182(a)(3)(B)'s criteria for determining commit terrorist acts," 82 Fed. Reg. at 13211, terrorism-related inadmissibility, the by suspending entry of all nationals from the President took measures that were six designated countries. We need not decide incompatible with the expressed will of the precise scope of § 1182(f) authority in Congress, placing his power "at its lowest relation to § 1182(a)(3)(B) because the ebb." Id. at 637. In this zone, "Presidential President has not met the precondition to claim to a power at once so conclusive and exercising his power under § 1182(f), that is, preclusive must be scrutinized with caution, of making a detrimentality finding. We note, for what is at stake is the equilibrium however, that executive action should not established by our constitutional render superfluous Congress's requirement system." Id. at 638. We have based our that there be a "reasonable ground to believe" decision holding the entry ban unlawful on that an alien "is likely to engage after entry in statutory considerations, and nothing said any [specifically defined] terrorist activity," 8 herein precludes Congress and the President U.S.C. § 1182(a)(3)(B)(i)(II), and other from reaching a new understanding and specific grounds for terrorism-related confirming it by statute. If there were such admissibility. Cf. Abourezk, 785 F.2d at 1049 consensus between Congress and the n.2 ("The President's sweeping proclamation President, then we would view Presidential power [under § 1182(f)] provides a safeguard power at its maximum, and not in the against the danger posed by any particular weakened state based on conflict with case or class of cases that is not covered by statutory law. See id. at 635-38. one of the categories in section 1182(a)." (emphasis added)); Allende v. Shultz, 845 * * * F.2d 1111, 1118 (1st Cir. 1988) ("Each subsection [of § 1182(a)] creates a different In sum, we conclude that Plaintiffs have and distinct ground for exclusion."). shown a likelihood of success on the merits at least as to their arguments that EO2 5 contravenes the INA by exceeding the President's authority under § 1182(f), Finally, we note that in considering the discriminating on the basis of nationality, and President's authority, we are cognizant of disregarding the procedures for setting Justice Jackson's tripartite framework annual admissions of refugees. in Youngstown Sheet & Tube Co. v. Sawyer. See 343 U.S. 579, 635-38, 72 S. Ct. C 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (1952) (Jackson, J., concurring). Section The current record is sufficient to permit the 1182(f) ordinarily places the President's court's evaluation of the irreparable harms authority at its maximum. "When the threatening Plaintiffs. Plaintiffs identify President acts pursuant to an express or harms, such as prolonged separation from implied authorization of Congress, his family members, constraints to recruiting and authority is at its maximum, for it includes all attracting students and faculty members to

202 the University of Hawai'i, decreased tuition findings justifying that entry of certain revenue, and the State's inability to assist in classes of aliens would be detrimental to the refugee resettlement. Many of these harms national interest and ensuring that such are not compensable with monetary damages exercise does not conflict with other INA and therefore weigh in favor of finding provisions. Because the President has not irreparable harm. See, e.g., Washington, 847 done so, we cannot conclude that F.3d at 1169 (identifying harms such as national security interests outweigh the harms to States' university employees and harms to Plaintiffs. See Int'l Refugee students, separated families, and stranded Assistance Project, 2017 U.S. App. LEXIS States' residents abroad); Regents of Univ. of 9109, 2017 WL 2273306, at *32 (Keenan, J., Cal. v. Am. Broad. Cos., Inc., 747 F.2d 511, concurring in part and concurring in the 520 (9th Cir. 1984) (crediting intangible judgment). harms such as the "impairment of their ongoing recruitment programs [and] the Further, the Government has not put forth dissipation of alumni and community evidence of injuries resulting from the goodwill and support garnered over preliminary injunction, or how the screening the years"); cf. Moore v. City of E. Cleveland, and vetting procedures in place before the Ohio, 431 U.S. 494, 503-04, 97 S. Ct. 1932, Order was enjoined were inadequate such 52 L. Ed. 2d 531 (1977) (explaining that "the that the Order should take immediate effect. Constitution protects the sanctity of the Continuing to enjoin portions of EO2 restores family precisely because the institution of the immigration procedures and programs to the family is deeply rooted in this Nation's position they were in prior to its history and tradition"). issuance. See Washington, 847 F.3d at 1168; see also Brief of Former National We conclude Plaintiffs are likely to suffer Security Officials as Amici Curiae, Dkt. No. irreparable harm in the absence of 108 at 9 (explaining that a number of amici preliminary relief. officials, in office on January 20, 2017 and current on active intelligence, knew of no D "credible terrorist threat streams directed In considering the equities of a preliminary against the United States" at that time). injunction, we next "balance the competing In weighing the harms, the equities tip in claims of injury" and "consider the effect on Plaintiffs' favor. each party of the granting or withholding of the requested relief." Winter, 555 U.S. at 24. E The district court did not abuse its discretion Plaintiffs must finally show that preliminary in finding that the balance of hardships tipped injunctive relief is in the public interest. in Plaintiffs' favor. The Government argues National security is undoubtedly a paramount that the injunction causes direct, irreparable public interest. See Haig v. Agee, 453 U.S. injury by constraining the Executive's 280, 307, 101 S. Ct. 2766, 69 L. Ed. 2d 640 authority in "protect[ing] national security on (1981) ("[N]o governmental interest is more behalf of the entire United States." "[T]he compelling than the security of the Nation."). Government's interest in combating terrorism Although we recognize that "sensitive and is an urgent objective of the highest weighty interests of national security and order." Humanitarian Law Project, 561 U.S. foreign affairs" are implicated, Humanitarian at 28. Nonetheless, the President must Law Project, 561 U.S. at 33-34, the President exercise his authority under § must nonetheless exercise his executive 1182(f) lawfully by making sufficient power under § 1182(f) lawfully. The public

203 interest is served by "curtailing unlawful vitality of entire refugee assistance programs executive action." Texas, 809 F.3d at 187. and resettlement efforts, see Brief of Interfaith Group of Religions and The public interests in uniting families and Interreligious Organizations as Amici supporting humanitarian efforts in refugee Curiae, Dkt. No. 121, Brief of Oxfam resettlement support the conclusion that the America as Amicus Curiae, Dkt. No. 149, public interest is served by preliminarily Brief of HIAS, IRC, and USCRI as Amici enjoining EO2 and maintaining the status Curiae, Dkt. No. 155, Brief of Doe Plaintiffs quo. Cf. Solis-Espinoza v. Gonzales, 401 as Amici Curiae, Dkt. No. 276; uniquely F.3d 1090, 1094 (9th Cir. 2005) ("Public exclude Muslim family members, scholars, policy supports recognition and maintenance religious leaders, and professionals from of a family unit. The [INA] was intended to entry, see Brief of Muslim Rights, keep families together. It should be construed Professional, and Public Health in favor of family units and the acceptance of Organizations as Amici Curiae, Dkt. No. responsibility by family 124, Brief of Muslim Justice League et al. as members."); Kaliski v. Dist. Dir. of INS, 620 Amici Curiae, Dkt. No. 207; inflict F.2d 214, 217 (9th Cir. 1980) (explaining that proprietary harms on the states by harming "the humane purpose" of the INA is to reunite state colleges, disrupting staffing and families). research at state medical institutions, and reducing tax revenues and reinvestment of Amici also have identified specific harms refugee funding into local that will result if EO2 takes effect, bolstering economies, seeBrief of Illinois et al. as Amici the conclusion that the injunction is in the Curiae, Dkt. No. 125; undermine trust public interest. They explain that EO2 between law enforcement and immigrant would, inter alia: curtail children's ability to communities and inflict financial and social travel to the United States to obtain life- costs, such as loss of tourism saving medical care, see Brief of the dollars, see Brief of Chicago et al. as Amici Foundation for the Children of Iran and Curiae, Dkt. No. 137; interfere with union Iranian Alliances Across Borders as Amici members' ability to do their work and serve Curiae, Dkt. No. 77; undermine the efforts of the American public, see Brief of Service religious organizations in the United States Employees International Union et al. as rendering humanitarian aid, see Brief of Amici Curiae, Dkt. No. 166; harm American Episcopal Bishops as Amici Curiae, Dkt. No. competitiveness by disrupting ongoing 87; compromise the diversity interests that business operations and inhibiting are central to universities, see Brief of New technology companies' abilities to attract York University as Amicus Curiae, Dkt. No. talent, business, and investment to the United 95; deter international students, faculty, and States, see Brief of Technology Companies scholars from studying at American as Amici Curiae, Dkt. No. 180, Brief of universities and harm the research mission of Massachusetts Technology Leadership universities, see Brief of Colleges and Council as Amicus Curiae, Dkt. No. 194; Universities as Amici Curiae, Dkt. No. 97; place victims of gender-based violence at impose additional hardship for child refugees particular risk, see Tahirih Justice Center et already facing violence and al. as Amici Curiae, Dkt. No. 185; interrupt trauma, seeBrief of Professional Society on foreign artists' exhibitions and performances the Abuse of Children as Amicus in the United States, see Brief of the Curiae, Dkt. No. 107; immediately harm Association of Art Museum Directors et al. as refugees who will be denied entry and risk the

204

Amici Curiae, Dkt. No. 204; and prevent is an abuse of discretion." Stormans, 586 F.3d U.S. citizens and lawful permanent residents at 1140. from receiving visits from or reuniting with family members, see Brief of Human Rights A First et al. as Amici Curiae, Dkt. No. 222. The public interest favors affirming the The Government first argues that the preliminary injunction. See Winter, 555 U.S. injunction improperly enjoins enforcement of at 24 ("In exercising their sound discretion, parts of Sections 2 and 6 that are unrelated to courts of equity should pay particular regard any alleged harm to Plaintiffs—specifically, for the public consequences in employing the the provisions that pertain to internal extraordinary remedy of injunction."). government operations and procedures.

* * * Portions of Section 2 require various agencies to conduct a review of worldwide Plaintiffs have satisfied all four factors to vetting procedures to determine what warrant entry of the preliminary additional information, if any, is needed from injunction. See id. at 20. The district court did each foreign country to adjudicate a visa not abuse its discretion in granting an application, prepare a report on the results of injunction. the worldwide review, submit a list of countries that do not provide requested V information to the President, and recommend other lawful restrictions or limitations With respect to the injunction's scope, the deemed necessary for the security of the Government contends that the district court United States. 82 Fed. Reg. at 13212-13. erred by enjoining internal government Likewise, during the interim period when procedures, giving nationwide relief, and refugee admissions is suspended, Section 6 entering an order against the President. directs the Secretary of State, in conjunction with the Secretary of Homeland Security and We review the scope of a preliminary the Director of National Intelligence, to injunction for abuse of conduct an internal review and implement discretion. McCormack v. Hiedeman, 694 additional procedures identified by the F.3d 1004, 1010 (9th Cir. 2012). Although review. Id. at 13215. Section 6 also requires the district court has "considerable discretion the Secretary of State to review the "existing in fashioning suitable relief and defining the law" to determine how State and local terms of an injunction," Lamb-Weston, Inc. v. jurisdictions could have greater involvement McCain Foods, Ltd., 941 F.2d 970, 974 (9th in the process of determining refugee Cir. 1991), there are limitations on placement. Id. at 13216. this discretion. Injunctive relief must be tailored to remedy the specific harms shown Although other unenjoined sections of EO2 by the plaintiffs. See id. ("Injunctive relief . . permit interagency coordination to review . must be tailored to remedy the specific harm vetting procedures, the district court alleged."); Califano v. Yamasaki, 442 U.S. nonetheless abused its discretion in enjoining 682, 702, 99 S. Ct. 2545, 61 L. Ed. 2d 176 the inward-facing tasks of Sections 2 and (1979) ("[T]he scope of injunctive relief is 6. Enjoining the entirety of Sections 2 and 6 dictated by the extent of the violation was not narrowly tailored to addressing only established . . . ."). "An overbroad injunction the harms alleged. For example, internal determinations regarding the necessary

205 information for visa application services which affect the disadvantaged, adjudications do not have an obvious refugees, and immigrants." Haw. Rev. Stat. § relationship to the constitutional rights at 371K-4(5). OCS also operates the Refugee stake or statutory conflicts at issue here. Social Services Program and the Refugee Plaintiffs have not shown how the Cash and Medical Assistance Government's internal review of its vetting Program. See Department of Labor and procedures will harm them. We vacate the Industrial Relations, Office of Community preliminary injunction to the extent it enjoins Services, 2017 Hawaii State Plan for Refugee internal review procedures that do not burden Assistance and Services individuals outside of the executive branch of (2016); https://labor.hawaii.gov/ocs/files/20 the federal government. See Bresgal v. 13/02/FY17-State-Plan-for-Hawaii.pdf (last Brock, 843 F.2d 1163, 1171 (9th Cir. visited June 6, 2017). The State further 1987) ("An injunction against a government highlights that aiding refugees is central to agency must be structured to take into the mission of private organizations, like account 'the well-established rule that the Catholic Charities Hawai'i and Pacific government has traditionally been granted Gateway Center. the widest latitude in the "dispatch of its own internal affairs."'" (quoting Rizzo v. Goode, Since fiscal year 2010, at least twenty 423 U.S. 362, 378-79, 96 S. Ct. 598, 46 L. refugees have arrived and resettled in Ed. 2d 561 (1976))); cf. Bowen v. Roy, 476 Hawai'i, and in fiscal year 2017 to date, three U.S. 693, 700, 106 S. Ct. 2147, 90 L. Ed. 2d have resettled there. While this is a small 735 (1986) (explaining that the Free Exercise number of refugees, it does not diminish Clause "affords an individual protection from Hawai'i's interest in effectuating its refugee certain forms of governmental compulsion programs and investments. Enjoining the [but] does not afford an individual a right to suspension and cap would protect the State's dictate the conduct of the Government's programs and efforts in resettling refugees. internal procedures"). Although the Government is correct in pointing out that most of Plaintiffs' alleged B injuries center on the implementation of Section 2(c), at this preliminary stage of The Government next argues that the district litigation, the district court did not abuse its court erred in enjoining Section 6's refugee discretion by enjoining Section 6's operative provisions, specifically the suspension of provisions suspending refugee admission on refugees and adoption of the 50,000 refugee the basis of the current record. We therefore cap. reject the Government's challenge on this point. The State alleges that Section 6 will force it to abandon the refugee program that C embodies the State's traditions of openness and diversity. The State has several policies The Government next contends that the that aid and resettle refugees, and has a "long district court erred by enjoining Section 2(c) history of welcoming refugees impacted by as to all persons everywhere, rather than war and oppression." As discussed earlier, redressing only Plaintiffs' injuries. The OCS, a division of the Department of Labor Government requests that the nationwide and Industrial Relations, is directed to injunction be limited to Plaintiffs only. "[a]ssist and coordinate the efforts of all public and private agencies providing

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The district court identified two reasons to Narrowing the injunction to apply only to support a nationwide injunction. First, the Plaintiffs would not cure the statutory district court emphasized that in certain violations identified, which in all circumstances, it is appropriate for courts to applications would violate provisions of the issue nationwide injunctions. Hawai'i PI, INA. See Int'l Refugee Assistance Project, 2017 U.S. Dist. LEXIS 47042, 2017 WL 2017 U.S. App. LEXIS 9109, 2017 WL 1167383, at *8. As the Fifth Circuit observed 2273306, at *27 (affirming the nationwide in Texas v. United States, nationwide injunction because Section 2(c) of EO2 likely injunctions are particularly appropriate in the violates the Establishment Clause, and its immigration context because "immigration constitutional deficiency "would endure" in laws of the United States should be enforced all applications); cf. Nat'l Mining Ass'n v. vigorously and uniformly." 809 F.3d at 187- U.S. Army Corps of Eng'rs, 145 F.3d 1399, 88; see U.S. Const. art. I, § 8, cl. 4 ("The 1409, 330 U.S. App. D.C. 329 (D.C. Cir. Congress shall have Power . . . [t]o establish 1998) ("[W]hen a reviewing court determines an uniform Rule of Naturalization . . . .") that agency regulations are unlawful, the (emphasis added). Enjoining the conduct as ordinary result is that the rules are vacated— to Plaintiffs may result in "fragmented not that their application to the individual immigration policy [that] would run afoul of petitioners is proscribed." (quoting Harmon the constitutional and statutory requirement v. Thornburgh, 878 F.2d 484, 495 n.21, 278 for uniform immigration law and U.S. App. D.C. 382 (D.C. Cir. 1989))). policy." Washington, 847 F.3d at 1166- The district court did not abuse its 67 (citing to Texas, 809 F.3d at 187-88)). discretion in entering a nationwide preliminary injunction. Second, the district court made clear that the Government did not provide a workable D framework for narrowing the geographic scope of the injunction. See id. at Finally, the Government argues that the 1167 ("[E]ven if limiting the geographic district court erred by issuing an injunction scope of the injunction would be desirable, that runs against the President himself. This the Government has not proposed a position of the Government is well workable alternative form of the TRO that taken. Generally, we lack "jurisdiction of a accounts for the nation's multiple ports of bill to enjoin the President in the performance entry and interconnected transit system and of his official duties." Franklin v. that would protect the proprietary interests of Massachusetts, 505 U.S. 788, 802-03, 112 S. the States at issue here while nevertheless Ct. 2767, 120 L. Ed. 2d 636 applying only within the States' borders."). (1992) (quoting Mississippi v. Johnson, 71 On appeal, the Government has not offered U.S. 475, 501, 18 L. Ed. 437 (1866)); see id. any new workable method of limiting the at 802 ("[I]njunctive relief against the geographic scope of the injunction. President himself is extraordinary, and should . . . raise[] judicial An "injunction is not necessarily made over- eyebrows."). Injunctive relief, however, may broad by extending benefit or protection to run against executive officials, including the persons other than prevailing parties in the Secretary of Homeland Security and the lawsuit—even if it is not a class action—if Secretary of State. See, e.g., Youngstown such breadth is necessary to give prevailing Sheet & Tube Co., 343 U.S. at 588- parties the relief to which they are 89 (holding that President Truman did not act entitled." Bresgal, 843 F.2d at 1170-71.

207 within his constitutional power in seizing steel mills and affirming the district court's VI decision enjoining the Secretary of Commerce from carrying out the We affirm in part and vacate in part the order); Franklin, 505 U.S. at 802-03. district court's preliminary injunction order. We conclude that Plaintiffs' injuries can be As to the remaining Defendants, we affirm redressed fully by injunctive relief against the the injunction as to Section 2(c), suspending remaining Defendants, and that the entry of nationals from the six designated extraordinary remedy of enjoining the countries for 90 days; Section 6(a), President is not appropriate suspending USRAP for 120 days; and here. See Franklin, 505 U.S. at 803. We Section 6(b), capping the entry of refugees to therefore vacate the district court's injunction 50,000 in the fiscal year 2017. We vacate the to the extent the order runs against the portions of the injunction that prevent the President, but affirm to the extent that it runs Government from conducting internal against the remaining "Defendants and all reviews, as otherwise directed in Sections 2 their respective officers, agents, servants, and 6, and the injunction to the extent that it employees, and attorneys, and persons in runs against the President. We remand the active concert or participation with them." case to the district court with instructions to re-issue a preliminary injunction consistent E with this opinion.

The district court did err in enjoining the AFFIRMED in part; VACATED in part; entirety of Sections 2 and 6, particularly the and REMANDED with instructions. Each portions that pertain to interagency review, party shall bear its own costs on appeal. despite the Government's requests for clarification and requests to narrow the injunction to enjoin conduct that actually harms Plaintiffs. The district court abused its discretion in enjoining inward-facing agency conduct because enjoining this conduct would not remedy the harms asserted by Plaintiffs. Further, the district court abused its discretion in enjoining the President. We would not be able to affirm in full the preliminary injunction even if Plaintiffs were also likely to succeed on their constitutional claims, for reasons that enjoining internal review procedures does not remedy harms to Plaintiffs and because it is improper to enjoin the President without necessity. As we have affirmed the injunction in part on statutory grounds, and vacated certain parts on the basis of considerations governing the proper scope of an injunction, we need not consider the constitutional claims here.

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Trump v. International Refugee Assistance Project 16-436

Ruling Below: Int’l Refugee Assistance Program v. Trump, 857 F.3d 554 (4th Cir. 2017). President Trump issued Executive Order 13780, section 2(c) of which suspends entry of foreign nationals from six countries. Six individuals challenge Executive Order 13780; four of these individuals claim that the Order will prolong their separation from loved ones, and two claim that the Order spreads anti-Muslim sentiment that harms them.

The District Court enjoined enforcement of Section 2(c). The government appealed. The Circuit Court of Appeals affirmed.

Question Presented: Whether respondents' challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable? Whether Section 2(c)'s temporary suspension of entry violates the Establishment Clause? Whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad?

Whether the challenges to Section 2(c) became moot on June 14, 2017?

International Refugee Assistance Project, v. Donald J. Trump.

United States Court of Appeals for the Fourth Circuit

May 25, 2017

[Excerpt; some citations and footnotes omitted]

GREGORY, Chief Judge: Clause of the First Amendment yet stands as an untiring sentinel for the protection of one The question for this Court, distilled of our most cherished founding principles— to its essential form, is whether the that government shall not establish any Constitution, as the Supreme Court declared religious orthodoxy, or favor or disfavor one in Ex parte Milligan, remains “a law for religion over another. Congress granted the rulers and people, equally in war and in President broad power to deny entry to aliens, peace.” And if so, whether it protects but that power is not absolute. It cannot go Plaintiffs’ right to challenge an Executive unchecked when, as here, the President Order that in text speaks with vague words of wields it through an executive edict that national security, but in context drips with stands to cause irreparable harm to religious intolerance, animus, and individuals across this nation. Therefore, for discrimination. Surely the Establishment

209 the reasons that follow, we affirm in The First Executive Order also placed several substantial part the district court’s issuance of constraints on the admission of refugees into a nationwide preliminary injunction as to the country. It reduced the number of Section 2(c) of the challenged Executive refugees to be admitted in fiscal year 2017 Order. from 110,000 to 50,000 and barred indefinitely the admission of Syrian I. refugees. It further ordered the Secretary of A. State to suspend for 120 days the United States Refugee Admissions Program In the early evening of January 27, 2017— (“USRAP”). Upon resumption of USRAP, seven days after taking the oath of office— EO-1 directed the Secretary of State to President Donald J. Trump signed Executive “prioritize refugee claims made by Order 13769, “Protecting the Nation From individuals on the basis of religious-based Foreign Terrorist Entry Into the United persecution, provided that the religion of the States” (“EO-1” or “First Executive Order”). individual is a minority religion in the Referencing the past and present failings of individual’s country of nationality.” the visa-issuance process, the First Executive Order had the stated purpose of “protect[ing] Individuals, organizations, and states across the American people from terrorist attacks by the nation challenged the First Executive foreign nationals.” EO-1, Preamble. To Order in federal court. A judge in the Western protect Americans, EO-1 explained, the District of Washington granted a Temporary United States must ensure that it does not Restraining Order (“TRO”), enjoining admit foreign nationals who “bear hostile enforcement nationwide of Sections 3(c), attitudes” toward our nation and our 5(a)–(c), and 5(e). The Ninth Circuit Constitution, who would “place violent subsequently denied the Government’s ideologies over American law,” or who request to stay the TRO pending appeal and “engage in acts of bigotry or hatred” (such as declined to “rewrite” EO-1 by narrowing the “‘honor’ killings”). Id. § 1. TRO’s scope, noting that the “political branches are far better equipped” for that To that end, the President invoked his task. At the Ninth Circuit’s invitation, and in authority under 8 U.S.C. § 1182(f) and an effort to avoid further litigation immediately suspended for ninety days the concerning the First Executive Order, the immigrant and nonimmigrant entry of foreign President enacted a second order (“EO-2” or aliens from seven predominantly Muslim “Second Executive Order”) on March 6, countries: Iraq, Iran, Libya, Somalia, Sudan, 2017. The Second Executive Order revoked Syria, and Yemen. See EO-1, § 3(c). During and replaced the First Executive Order. the ninety-day period, the Secretary of Homeland Security, Secretary of State, and Section 2(c) of EO-2—“Temporary Director of National Intelligence were to Suspension of Entry for Nationals of “immediately conduct a review to determine Countries of Particular Concern During the information needed from any country” to Review Period”—is at the heart of the dispute assess whether individuals seeking entry in this case. This section reinstated the from those countries posed a national ninety-day suspension of entry for nationals security threat. Those cabinet officers were to from six countries, eliminating Iraq from the deliver a series of reports updating the list, but retaining Iran, Libya, Somalia, President as to that review and the Sudan, Syria, and Yemen (the “Designated implementation of EO-1. Countries”). EO-2, § 2(c). The President,

210 again invoking 8 U.S.C. § 1182(f) and also does not include any examples of individuals citing 8 U.S.C. § 1185(a), declared that the from Iran, Libya, Sudan, Syria, or Yemen “unrestricted entry” of nationals from these committing terrorism-related offenses in the countries “would be detrimental to the United States. interests of the United States.” The Second Executive Order clarifies that the The Second Executive Order, unlike its suspension of entry applies to foreign predecessor, states that nationals from the nationals who (1) are outside the United Designated Countries warrant “additional States on its effective date of March 16, 2017, scrutiny” because “the conditions in these (2) do not have a valid visa on that date, and countries present heightened threats.” In (3) did not have a valid visa on the effective justifying the selection of the Designated date of EO-1—January 27, 2017. Section Countries, EO-2 explains, “Each of these 2(c) does not bar entry of lawful permanent countries is a state sponsor of terrorism, has residents, dual citizens traveling under a been significantly compromised by terrorist passport issued by a nonbanned country, organizations, or contains active conflict asylees, or refugees already admitted to the zones.” The Second Executive Order states United States. The Second Executive Order that “until the assessment of current also includes a provision that permits screening and vetting procedures required by consular officers, in their discretion, to issue section 2 of this order is completed, the risk waivers on a case-by-case basis to of erroneously permitting entry of a national individuals barred from entering the United of one of these countries who intends to States. commit terrorist acts or otherwise harm the national security of the United States is The Second Executive Order retains some— but not all—of the First Executive Order’s unacceptably high.” refugee provisions. It again suspends USRAP The Second Executive Order also provides for 120 days and decreases the number of brief descriptions of the conditions in each of refugee admissions for fiscal year 2017 by the Designated Countries. It notes, for more than half, but it does not include the instance, that “Sudan has been designated as indefinite ban on Syrian refugees. The a state sponsor of terrorism since 1993 Second Executive Order also eliminates the because of its support for international provision contained in EO-1 that mandated terrorist groups, including Hizballah and preferential treatment of religious minorities Hamas[, and] . . . elements of core al- seeking refugee status. It explains that this Qa’ida and ISISlinked terrorist groups provision “applied to refugees from every remain active in the country.” The Second nation, including those in which Islam is a Executive Order further states that minority religion, and it applied to minority “[s]ince 2001, hundreds of persons born sects within a religion.” It further explains abroad have been convicted of terrorism- that EO-1 was “not motivated by animus related crimes in the United States.” It toward any religion,” but rather was designed provides the following examples: two Iraqi to protect religious minorities. refugees who were convicted of terrorism- related offenses in January 2013, and a Shortly before the President signed EO-2, an naturalized citizen who came to this country unclassified, internal report from the as a child refugee from Somalia and who was Department of Homeland Security (“DHS”) sentenced for terrorism-related offenses in Office of Intelligence and Analysis dated October 2014. The Second Executive Order March 2017 was released to the public. The report found that most foreign-born, U.S.-

211 based violent extremists became radicalized Muslims. They are great people—but they many years after entering the United States, know we have a problem.” and concluded that increased screening and vetting was therefore unlikely to significantly In an interview with CNN on March 9, 2016, reduce terrorism-related activity in the Trump professed, “I think Islam hates us,” United States. According to a news article, a J.A. 516, and “[W]e can’t allow people separate DHS report indicated that coming into the country who have this citizenship in any country is likely an hatred,” J.A. 517. Katrina Pierson, a Trump unreliable indicator of whether a particular spokeswoman, told CNN that individual poses a terrorist threat. In a “[w]e’ve allowed this propaganda to spread declaration considered by the district court, all through the country that [Islam] is a ten former national security, foreign policy, religion of peace.” J.A. 518. In a March 22, and intelligence officials who previously 2016 interview with Fox Business television, served in the White House, State Department, Trump reiterated his call for a ban on Muslim DHS, and Central Intelligence Agency—four immigration, claiming that this proposed ban of whom were aware of intelligence related had received “tremendous support” and to terrorist threats as of January 20, 2017— stating, “we’re having problems with the advised that “[t]here is no national security Muslims, and we’re having problems with purpose for a total ban on entry for aliens Muslims coming into the country.” J.A. 522. “You need surveillance,” Trump explained, from the [Designated Countries].” J.A. 91. and “you have to deal with the mosques B. whether you like it or not.” J.A. 522. The First and Second Executive Orders were Candidate Trump later recharacterized his issued against a backdrop of public call to ban Muslims as a ban on nationals statements by the President and his advisors from certain countries or territories. On July and representatives at different points in time, 17, 2016, when asked about a tweet that said, both before and after the election and “Calls to ban Muslims from entering the U.S. President Trump’s assumption of office. We are offensive and unconstitutional,” then- now recount certain of those statements. candidate Trump responded, “So you call it territories. OK? We’re gonna do territories.” On December 7, 2015, then-candidate Trump J.A. 798. He echoed this statement a week published a “Statement on Preventing later in an interview with NBC’s Meet the Muslim Immigration” on his campaign Press. When asked whether he had “pulled website, which proposed “a total and back” on his “Muslim ban,” Trump replied, complete shutdown of Muslims entering the “We must immediately suspend immigration United States until our country’s from any nation that has been compromised representatives can figure out what is going by terrorism until such time as proven vetting on.” J.A. 346. That same day, he highlighted mechanisms have been put in place.” J.A. the statement on Twitter, “Just put out a very 480. Trump added, “I actually don’t think it’s important policy statement on the a rollback. In fact, you could say it’s an extraordinary influx of hatred & danger expansion. I’m looking now at territories. coming into our country. We must be People were so upset when I used the word vigilant!” And Trump read from the Muslim. Oh, you can’t use the word Muslim. statement at a campaign rally in Mount Remember this. And I’m okay with that, Pleasant, South Carolina, that evening, where because I’m talking territory instead of he remarked, “I have friends that are Muslim.” Trump continued, “Our

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Constitution is great. . . . Now, we have a commission together. Show me the right way religious, you know, everybody wants to be to do it legally.’” J.A. 508. Giuliani said he protected. And that’s great. And that’s the assembled a group of “expert lawyers” that wonderful part of our Constitution. I view it “focused on, instead of religion, danger—the differently.” areas of the world that create danger for us. . . . It’s based on places where there [is] On December 19, 2016, following a terrorist substantial evidence that people are sending attack in Germany, President-Elect Trump terrorists into our country.” lamented the attack on people who were “prepared to celebrate the Christmas holiday” In response to the Ninth Circuit’s decision by “ISIS and other Islamic terrorists [who] not to stay enforcement of the nationwide continually slaughter Christians in their injunction, the President stated at a news communities and places of worship as part of conference on February 16, 2017, that he their global jihad.” Two days later, when intended to issue a new executive order asked whether recent violence in Europe had tailored to that court’s decision—despite his affected his plans to bar Muslims from belief that the First Executive Order was immigrating to the United States, President- lawful. In discussing the Ninth Circuit’s Elect Trump commented, “You know my decision and his “[e]xtreme vetting” plans. All along, I’ve been proven to be right. proposal, the President stated, “I got elected 100% correct. What’s happening is on defense of our country. I keep my disgraceful.” campaign promises, and our citizens will be very happy when they see the result.” A few The President gave an interview to the days later Stephen Miller, Senior Policy Christian Broadcasting News on January 27, Advisor to the President, explained that the 2017, the same day he issued the First new order would reflect “mostly minor Executive Order. In that interview, the technical differences,” emphasizing that it President explained that EO-1 would give would produce the “same basic policy preference to Christian refugees: “They’ve outcome for the country.” J.A. 339. White been horribly treated. Do you know if you House Press Secretary Sean Spicer stated, were a Christian in Syria it was impossible, “The principles of the executive order remain at least very tough to get into the United the same.” J.A. 379. And President Trump, in States? If you were a Muslim you could come a speech at a rally in Nashville, Tennessee, in, but if you were a Christian, it was almost described EO-2 as “a watered down version impossible . . . .” He found that situation of the first order.” “very, very unfair.” Just before signing EO- 1, President Trump stated, “This is the At the March 6, 2017 press conference ‘Protection of the Nation from announcing the Second Executive Order, Foreign Terrorist Entry into the United Secretary of State Rex Tillerson said, “This States.’ We all know what that means.” The executive order is a vital measure for following day, former New York City Mayor strengthening our national security.” That and presidential advisor Rudolph Giuliani same day, Attorney General Jefferson appeared on Fox News and was asked, “How Sessions and Secretary of Homeland Security did the President decide the seven John Kelly submitted a letter to the President countries?” Giuliani answered, “I’ll tell you detailing how weaknesses in our immigration the whole history of it. So when [the system compromise our nation’s security and President] first announced it, he said ‘Muslim recommending a temporary pause on entry of ban.’ He called me up. He said, ‘Put a nationals from the Designated Countries. In a

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CNN interview the next day, Secretary Kelly Ahmed Mohomed—allege that EO-2 would specified that there are probably “13 or 14 delay or deny the admission of their family countries” that have “questionable vetting members as refugees. procedures,” not all of which are Muslim countries or in the Middle East. He noted that Beyond claiming injury to their family there are “51 overwhelmingly Muslim relationships, several of the individual countries” and rejected the characterization Plaintiffs allege that the anti-Muslim message animating EO-2 has caused them of EO-2 as a “Muslim ban.” feelings of disparagement and exclusion. Doe C. #1, a scientist who obtained permanent resident status through the National Interest This action was brought by six individuals, Waiver program for people with all American citizens or lawful permanent extraordinary abilities, references these "anti- residents who have at least one family Muslim views," worries about his safety in member seeking entry into the United States this country, and contemplates whether he from one of the Designated Countries, and should return to Iran to be with his wife. three organizations that serve or represent Plaintiff Meteab relays that the "anti-Muslim Muslim clients or members. sentiment" motivating EO-2 had led him to Four of the individual Plaintiffs—John Doe feel "isolated and disparaged in [his] #1, Jane Doe #2, John Doe #3, and Paul community." He explains that when he is in Harrison—allege that EO-2 would impact public with his wife, who wears a hijab, he their immediate family members' ability to "sense[s] a lot of hostility from people" and obtain visas. Collectively, they claim that recounts that his nieces, who both wear a Section 2(c) of EO-2, the provision that hijab, "say that people make mean comments suspends entry for certain foreign nationals and stare at them for being Muslim." A for ninety days, will prolong their separation classmate "pulled the hijab off" one of his from their loved ones. John Doe #1 has nieces in class. applied for a spousal immigration visa so that Two of the organizational Plaintiffs, the his wife, an Iranian national, can join him in International Refugee Assistance Project and the United States; the application was the Hebrew Immigrant Aid Society, approved, and she is currently awaiting her primarily assist refugees with the visa interview. J.A. 305. Jane Doe #2, a resettlement process. These organizations college student in the United States, has a claim that they have already diverted pending I-130 visa application on behalf of significant resources to dealing with EO-2's her sister, a Syrian refugee living in Saudi fallout, and that they will suffer direct Arabia. Since the filing of the operative financial injury from the anticipated Complaint on March 10, 2017, two of reduction in refugee cases. They further Plaintiffs' family members have obtained claim that their clients, who are located in the immigrant visas. The Government informed United States and the Middle East, will be the district court that Paul Harrison's fiancé injured by the delayed reunification with secured and collected a visa on March 15, their loved ones. The final Plaintiff, the 2017, the day before EO-2 was to take effect. Middle East Studies Association, an umbrella Doe #3's wife secured an immigrant visa on organization dedicated to fostering May 1, 2017, and Plaintiffs anticipate that she awareness of the Middle East, asserts that will arrive in the United States within the next EO-2 will, among other injuries, reduce eight weeks. The remaining two individual attendance at its annual conference and cause Plaintiffs—Muhammed Meteab and Ibrahim

214 the organization to lose $18,000 in After finding Plaintiffs' claims justiciable, the registration fees. district court turned to the merits of their claims. The court determined that Plaintiffs D. are likely to succeed only in part on the merits Plaintiffs initiated this suit on February 7, of their INA claim. It found that Section 2(c) 2017, seeking declaratory and injunctive likely violates § 1152(a)(1)(A), but only as to relief against enforcement of the First its effective bar on the issuance Executive Order. Plaintiffs claimed that EO- of immigrant visas, because § 1 violated the Establishment Clause of the 1152(a)(1)(A) explicitly applies solely to First Amendment; the equal protection immigrant visas. To the extent that Section component of the Due Process Clause of the 2(c) prohibits the issuance of nonimmigrant Fifth Amendment; the Immigration and visas and bars entry on the basis of Nationality Act ("INA"); the Religious nationality, the court found that it was not Freedom Restoration Act; the Refugee Act; likely to violate § 1152(a)(1)(A). The court and the Administrative Procedure Act. They did not discuss this claim in addressing the named as Defendants the President, DHS, the remaining preliminary injunction factors. Department of State, the Office of the The district court next found that Plaintiffs Director of National Intelligence, the are likely to succeed on the merits of Secretary of Homeland Security, the their Establishment Clause claim. It then Secretary of State, and the Director of considered the remaining preliminary National Intelligence. injunction requirements, but only as to On March 10, 2017, four days after the the Establishment Clause claim: it found that President issued EO-2, Plaintiffs filed the Plaintiffs would suffer irreparable injury if operative Complaint, along with a motion for EO-2 were to take effect, that the balance of a TRO and/or preliminary injunction. the equities weighed in Plaintiffs' favor, and Plaintiffs sought to enjoin implementation of that a preliminary injunction was in the EO-2 in its entirety, prior to its effective date. public interest. The district court concluded In quick succession, the Government that a preliminary injunction was therefore responded to the motion, Plaintiffs filed a proper as to Section 2(c) of EO-2 because reply, and the parties appeared for a hearing. Plaintiffs' claims centered primarily on that provision's suspension of entry. The court The district court construed the motion as a accordingly issued a nationwide injunction request for a preliminary injunction, and on barring enforcement of Section 2(c). March 16, 2017, it granted in part and denied in part that motion. In its Defendants timely noted this appeal, and we Memorandum Opinion, the district court first possess jurisdiction pursuant to 28 U.S.C. § found that three individual Plaintiffs (Doe #1, 1292(a)(1). Doe #2, and Doe #3) had standing to bring II. the claim that Section 2(c) violates the INA's provision prohibiting discrimination on the Because the district court enjoined Section basis of nationality in the issuance of 2(c) in its entirety based solely on immigrant visas. The court also determined Plaintiffs' Establishment Clause claim, we that at least three individual Plaintiffs need not reach the merits of Plaintiffs' (Meteab, Doe #1, and Doe #3) had standing statutory claim under the INA. to pursue the claim that EO-2 violates In Section 2(c) of EO-2, the President the Establishment Clause. suspended the entry of nationals from the six

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Designated Countries, pursuant to his power They have not shown a likelihood of success to exclude aliens under Section 212(f) of the on the merits of the claim that § INA, codified at 8 U.S.C. § 1152(a) prevents the President from barring 1182(f), and Section 215(a)(1) of the INA, entry to the United States pursuant to § codified at 8 U.S.C. § 1185(a)(1). The 1182(f), or the issuance of non-immigrant Government contends that Section 2(c)'s visas, on the basis of nationality. suspension of entry falls squarely within the "expansive authority" granted to the This narrow statutory ruling is not the basis President by § 1182(f) and § for the district court's broad preliminary 1185(a)(1). Appellants' Br. 28. Plaintiffs, on injunction enjoining Section 2(c) of EO-2 in the other hand, argue that Section 2(c) all of its applications. Rather, Plaintiffs' violates a separate provision of the INA, constitutional claim, the district court Section 202(a)(1)(A), codified at 8 U.S.C. § determined, was what justified a nationwide 1152(a)(1)(A), prohibiting discrimination on preliminary injunction against any the basis of nationality "in the issuance of enforcement of Section 2(c). If we were to disagree with the district court that § immigrant visas.” 1152(a)(1)(A) partially restrains The district court determined that Plaintiffs the President's authority under § are likely to succeed on their claim under § 1182(f) and § 1185(a)(1), then we would be 1152(a)(1)(A) only in limited part. Because obliged to consider Plaintiffs' Section 2(c) has the practical effect of halting alternative Establishment Clause claim. And, the issuance of immigrant visas on the basis importantly, even if we were to agree with of nationality, the court reasoned, it is the district court's statutory analysis, we still inconsistent with § 1152(a)(1)(A). To that would be faced with the question of whether extent—and contrary to the Government's the scope of the preliminary injunction, position—the court found that Presidential which goes beyond the issuance of immigrant authority under § 1182(f) and § 1185(a)(1) is visas governed by § 1152(a)(1)(A) to enjoin cabined by the INA's prohibition on Section 2(c) in its entirety, can be sustained nationality-based discrimination in visa on the basis of Plaintiffs' Establishment issuance. But the district court's ruling was Clause claim. limited in two important respects. First, because § 1152(a)(1)(A) applies only to the In light of this posture, we need not address issuance of immigrant visas, the district court the merits of the district court's statutory discerned no conflict between that provision ruling. We recognize, of course, the doctrine and the application of Section 2(c) to persons of constitutional avoidance, which counsels seeking non-immigrant visas. And second, against the issuance of "unnecessary the district court found that because § constitutional rulings." But as we have 1152(a)(1)(A) governs the issuance of visas explained, the district court's constitutional rather than actual entry into the United States, ruling was necessary to its decision, and it poses no obstacle to enforcement of Section review of that ruling is necessary to ours. 2(c)'s nationality-based entry bar. The district Accordingly, we decline to reach the merits of Plaintiffs' claim under § court summarized as follows: 1152(a)(1)(A). The breadth of the Plaintiffs have shown a likelihood of success preliminary injunction issued by the district on the merits of their claim that the Second court may be justified if and only if Plaintiffs Executive Order violates § 1152(a), but only can satisfy the requirements for a preliminary as to the issuance of immigrant visas . . . . injunction based on their Establishment

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Clause claim. We therefore turn to consider plaintiffs would be successful in their that claim. claims." This means, for purposes of standing, we must assume that Section 2(c) III. violates the First Amendment's prohibition The Government first asks us to reverse the against governmental "establishment of preliminary injunction on the grounds that religion." Plaintiffs' Establishment Clause claim is non- "Standing in Establishment Clause cases may justiciable. In its view, Plaintiffs have not be shown in various ways," though as oft- satisfied the foundational Article III repeated, "the concept of injury for standing requirements of standing and ripeness, and in purposes is particularly elusive" in this any event, the doctrine of context. Nevertheless, the Supreme Court consular nonreviewability bars judicial and this Circuit have developed a set of rules review of their claim. We consider these that guide our review. threshold challenges in turn. To establish standing for an Establishment A. Clause claim, a plaintiff must have "personal The district court found that at least three contact with the alleged establishment of individual Plaintiffs—Muhammed Meteab, religion." A "mere abstract objection to Doe #1, and Doe #3—have standing to assert unconstitutional conduct is not sufficient to the claim that EO-2 violates confer standing." The Supreme Court has the Establishment Clause. We review this reinforced this principle in recent years: legal determination de novo. "plaintiffs may demonstrate standing based on the direct harm of what is claimed to be an The Constitution's gatekeeping requirement establishment of religion." This "direct harm" that federal courts may only adjudicate can resemble injuries in other "Cases" or "Controversies," U.S. Const. art. contexts. Merchants who suffered economic III, § 2, obligates courts to determine whether injury, for instance, had standing to challenge litigants have standing to bring suit. To Sunday closing laws as violative of demonstrate standing and thus invoke federal the Establishment Clause. But jurisdiction, a party must establish that "(1) it because Establishment Clause violations has suffered an injury in fact, (2) the injury is seldom lead to "physical injury or pecuniary fairly traceable to the defendants' actions, and loss," the standing inquiry has been adapted (3) it is likely, and not merely speculative, to also include "the kind of that the injury will be redressed by a injuries Establishment Clause plaintiffs" are favorable decision." The parties' core dispute more "likely to suffer." As such, is whether Plaintiffs have suffered a "noneconomic or intangible injury may cognizable injury. To establish a cognizable suffice to make an Establishment injury, "a plaintiff must show that he or she Clause claim justiciable." "Feelings of suffered 'an invasion of a legally protected marginalization and exclusion are cognizable interest' that is 'concrete and particularized' forms of injury," we recently explained, and 'actual or imminent, not conjectural or "particularly in the Establishment hypothetical.'" Clause context, because one of the core In evaluating standing, "the court must be objectives of modern Establishment careful not to decide the question on the Clause jurisprudence has been to prevent the merits for or against the plaintiff, and must State from sending a message to non- therefore assume that on the merits the adherents of a particular religion 'that they

217 are outsiders, not full members of the purposes—that the injury is political community.'" 'certainly impending.'" Doe #1—who is a lawful permanent resident The Government does not contest that, in of the United States, Muslim, and originally some circumstances, the prolonged from Iran—filed a visa application on behalf separation of family members can constitute of his wife, an Iranian national. Her an injury-in-fact. The Government instead application has been approved, and she is argues that Doe #1's claimed injury is currently awaiting her consular interview. If speculative and non-imminent, Appellants' it took effect, EO-2 would bar the entry of Br. 19, such that it is not "legally and Doe #1's wife. Doe #1 explains that because judicially cognizable." According to the EO-2 bars his wife's entry, it "forces [him] to Government, Doe #1 has failed to show that choose between [his] career and being with his threatened injury—prolonged separation [his] wife," and he is unsure "whether to keep from his wife—is imminent. It asserts that working here" as a scientist or to return to Doe #1 has offered no reason to believe that Iran. Doe #1 adds that EO-2 has "created Section 2(c)'s "short pause" on entry "will significant fear, anxiety, and insecurity" for delay the issuance of [his wife's] visa." him and his wife. He highlights the "statements that have been made about But this ignores that Section 2(c) appears to banning Muslims from entering, and the operate by design to delay the issuance of broader context," and states, "I worry that I visas to foreign nationals. Section 2(c)'s may not be safe in this country." J.A. 306; see "short pause" on entry effectively halts the also J.A. 314 (Plaintiff Meteab describing issuance of visas for ninety days—as the how the "anti-Muslim sentiment motivating" Government acknowledges, it "would be EO-2 has led him to feel "isolated and pointless to issue a visa to an alien who the consular officer already knows is barred from disparaged in [his] community"). entering the country." The Government also Doe #1 has therefore asserted two distinct cites 8 U.S.C. § 1201(g), which provides in injuries stemming from his "personal relevant part that "[n]o visa or other contact" with the alleged establishment of documentation shall be issued to an alien if [] religion—EO-2. First, EO-2 will bar his it appears to the consular officer . . . that such wife's entry into the United States and alien is ineligible to receive a visa or other prolong their separation. And second, EO-2 documentation under section 1182 of this sends a state-sanctioned message title." A ninety-day pause on issuing visas condemning his religion and causing him to would seem to necessarily inject at least some feel excluded and marginalized in his delay into any pending application's timeline. community. And in fact, the Government suggests that pending visa applications might not be We begin with Doe #1's allegation that EO-2 delayed, but denied. A denial on will prolong his separation from his wife. such grounds would mean that once the entry This Court has found that standing can be suspension period concludes, an alien would premised on a "threatened rather than actual have to restart from the beginning the lengthy injury," as long as this "threat of injury [is] visa application process. What is more, both real and immediate.” The purpose of the Section 2(c) is designed to "reduce longstanding "imminence" requirement, investigative burdens on relevant agencies" which is admittedly "a somewhat elastic to facilitate worldwide review of the current concept," is "to ensure that the alleged injury procedures for "screening and vetting of is not too speculative for Article III

218 foreign nationals." Logically, dedicating time issuance of Doe #3's wife's visa. This cuts and resources to a global review process will directly against the Government's assertion further slow the adjudication of pending that it is uncertain whether or how Section applications. 2(c) would affect visa applicants. Clearly Section 2(c) will delay and disrupt pending Here, Doe #1 has a pending visa application visa applications. on behalf of his wife, seeking her admission to the United States from one of the Even more, flowing from EO-2 is the alleged Designated Countries. Prior to EO-2's state-sanctioned message that foreign-born issuance, Doe #1 and his wife were nearing Muslims, a group to which Doe #1 belongs, the end of the lengthy immigrant visa are "outsiders, not full members of the process, as they were waiting for her consular political community." Doe #1 explains how interview to be scheduled. J.A. 305. They had the Second Executive Order has caused him already submitted a petition, received to fear for his personal safety in this country approval of that petition, begun National Visa and wonder whether he should give up his Center ("NVC") Processing, submitted the career in the United States and return to Iran visa application form, collected and to be with his wife. This harm is consistent submitted the requisite financial and with the "[f]eelings of marginalization and supporting documentation to NVC, and paid exclusion" injury we recognized in Moss. the appropriate fees. If Section 2(c) were in force—restricting the issuance of visas to In light of these two injuries, we find that Doe nationals in the Designated Countries for #1 has had "personal contact with the alleged ninety days and initiating the worldwide establishment of religion." Regardless of review of existing visa standards—we find a whether EO-2 actually violates "real and immediate" threat that it would the Establishment Clause's command not to prolong Doe #1's separation from his wife, disfavor a particular religion, a merits inquiry either by delaying the issuance of her visa or explored in Section IV.A, his injuries are on denying her visa and forcing her to restart the par with, if not greater than, injuries we previously deemed sufficient in this context. application process. This prolonged family separation is not, as The Government attempts to undercut these the Government asserts, a remote or injuries in several ways. It first frames speculative possibility. Unlike threatened Plaintiffs' injuries as "stress." That minimizes injuries that rest on hypothetical actions a the psychological harm that flows from plaintiff may take "some day," or on a "highly confronting official action preferring or attenuated chain of possibilities," the disfavoring a particular religion and, in any threatened injury here is imminent, event, does not account for the impact on sufficiently "real" and concrete, and would families. The Government next argues that harm Doe #1 in a personal and because the Second Executive Order "particularized" way. The progression of Doe "directly applies only to aliens abroad from #3's wife's visa application illustrates this. the specified countries," it is "not directly Doe #3's wife received a visa on May 1, 2017, targeted at plaintiffs," who are based in the while Section 2(c) was enjoined. If Section United States, "in the way that local- or state- 2(c) had been in effect, she would have been government messages are." An executive ineligible to receive a visa until after the order is of course different than a local expiration of the ninety-day period. Put Sunday closing law or a Ten Commandments simply, Section 2(c) would have delayed the display in a state courthouse, but that does not mean its impact is any less direct. Indeed,

219 because it emanates from the highest elected organizational Plaintiffs have standing with office in the nation, its impact is arguably felt respect to this claim. even more directly by the individuals it affects. From Doe #1's perspective, the Lastly, the Government asserts that Second Executive Order does not apply to Plaintiffs' Establishment Clause claim is arbitrary or anonymous "aliens abroad." It unripe. It argues that under EO-2, Plaintiffs' relatives can apply for a waiver, and unless applies to his wife. and until those waiver requests are denied, More than abstractly disagreeing with the Plaintiffs' claims are dependent on future wisdom or legality of the President's policy uncertainties. When evaluating ripeness, we decision, Plaintiffs show how EO-2 impacted consider "(1) the fitness of the issues for (and continues to impact) them personally. judicial decision and (2) the hardship to the Doe #1 is not simply "roam[ing] the country parties of withholding court consideration." in search of governmental wrongdoing." An action is fit for resolution "when the Rather, he is feeling the direct, painful effects issues are purely legal and when the action in of the Second Executive Order—both its controversy is final and not dependent on alleged message of religious future uncertainties." The "hardship prong is condemnation and the prolonged separation measured by the immediacy of the threat and it causes between him and his wife—in his the burden imposed on the [plaintiff]." everyday life. This case thus bears little Our ripeness doctrine is clearly not resemblance to Valley Forge. implicated here. Plaintiffs have brought a We likewise reject the Government's facial challenge, alleging that EO-2 violates suggestion that Plaintiffs are seeking to the Establishment Clause regardless of vindicate the legal rights of third parties. The whether their relatives secure waivers. This prudential standing doctrine includes a legal question is squarely presented for our "general prohibition on a litigant's raising review and is not dependent on the factual another person's legal rights." This "general uncertainties of the waiver process. What is prohibition" is not implicated here, however, more, Plaintiffs will suffer undue hardship, as as Doe #1 has shown that he himself suffered explained above, were we to require their injuries as a result of the challenged Order. family members to attempt to secure a waiver before permitting Plaintiffs to challenge For all of these reasons, we find that Doe #1 Section 2(c). We accordingly find the claim has met his burden to establish an Article III ripe for judicial decision. injury. We further find that Doe #1 has made the requisite showing that his claimed B. injuries are causally related to the challenged conduct—the Second In one final justiciability challenge, the Executive Orderas opposed to "the Government asserts that independent action of some third party not consular nonreviewability bars any review of before the court." Enjoining enforcement of Plaintiffs' claim. This Court has scarcely Section 2(c) therefore will likely redress discussed the doctrine, so the Government those injuries. Doe #1 has thus met turns to the District of Columbia Circuit, the constitutional standing requirements with which has stated that "a consular official's respect to the Establishment Clause claim. decision to issue or withhold a visa is not And because we find that at least one Plaintiff subject to judicial review, at least unless possesses standing, we need not decide Congress says otherwise." But in the same whether the other individual Plaintiffs or the opinion, the court explained that judicial

220 review was proper in cases involving "claims injunction is in the public interest.'" The by United States citizens rather than by aliens district court found that Plaintiffs satisfied all . . . and statutory claims that are accompanied four requirements as to their Establishment by constitutional ones." This is precisely Clause claim, and it enjoined Section 2(c) of such a case. More fundamentally, the EO-2. We evaluate the court's findings for doctrine of consular nonreviewability does abuse of discretion, reviewing its factual not bar judicial review of constitutional findings for clear error and its legal claims. The Government's reliance on the conclusions de novo. doctrine is therefore misplaced. A. Behind the casual assertion of consular nonreviewability lies a dangerous The district court determined that Plaintiffs idea—that this Court lacks the authority to are likely to succeed on the merits of their review high-level government policy of the claim that EO-2 violates the Establishment sort here. Although the Supreme Court has Clause. It found that because EO-2 is certainly encouraged deference in our review "facially neutral in terms of religion," the test of immigration matters that implicate outlined in Lemon v. Kurtzman, governs the national security interests, see infra Section constitutional inquiry. And applying IV.A, it has not countenanced judicial the Lemon test, the court found that EO-2 abdication, especially where constitutional likely violates the Establishment Clause. The rights, values, and principles are at stake. To Government argues that the court the contrary, the Supreme Court has affirmed erroneously applied the Lemon test instead of time and again that "it is emphatically the the more deferential test set forth province and duty of the judicial department in Kleindienst v. Mandel. And under Mandel, to say what the law is." This "duty will the Government contends, Plaintiffs' claim sometimes involve the 'resolution of fails. litigation challenging the constitutional authority of one of the three branches,' but 1. courts cannot avoid their responsibility." In We begin by addressing the Government's light of this duty, and having determined that argument that the district court applied the the present case is justiciable, we now wrong test in evaluating Plaintiffs' proceed to consider whether the district court constitutional claim. The Government properly enjoined Section 2(c) of the Second contends that Mandel sets forth the Executive Order. appropriate test because it recognizes the limited scope of judicial review of executive IV. action in the immigration context. We agree A preliminary injunction is an that Mandel is the starting point for our "extraordinary remed[y] involving the analysis, but for the reasons that follow, we exercise of very far-reaching power" and is find that its test contemplates the application "to be granted only sparingly and in limited of settled Establishment Clause doctrine in circumstances." For a district court to grant a this case. preliminary injunction, "a plaintiff 'must establish [1] that he is likely to succeed on the In Mandel, American university professors merits, [2] that he is likely to suffer had invited Mandel, a Belgian citizen and irreparable harm in the absence of revolutionary Marxist and professional preliminary relief, [3] that the balance of journalist, to speak at a number of equities tips in his favor, and [4] that an conferences in the United States. But

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Mandel's application for a nonimmigrant visa in Kleindienst v. Mandel, a First was denied under a then-existing INA Amendment case." And in a case where provision that barred the entry of aliens "who plaintiffs brought a constitutional challenge advocate the economic, international, and to an immigration law, this Court has found governmental doctrines of world that "we must apply the same standard as communism." The Attorney General had the Fiallo court and uphold the statute if a discretion to waive § 1182(a)(28)(D)'s bar 'facially legitimate and bona fide reason' and grant Mandel an individual exception, supports [it]." Mandel is therefore the but declined to do so on the grounds that starting point for our review. Mandel had violated the terms of his visas during prior visits to the United States. The But in another more recent line of cases, the American professors sued, alleging, among Supreme Court has made clear that despite other things, that the denial of Mandel's visa the political branches' plenary power over violated their First Amendment rights to immigration, that power is still "subject to "hear his views and engage him in a free and important constitutional limitations," and that it is the judiciary's responsibility to uphold open academic exchange." those limitations. These cases instruct that the The Supreme Court, citing "Congress' political branches' power over immigration is 'plenary power to make rules for the not tantamount to a constitutional blank admission of aliens and to exclude those who check, and that vigorous judicial review is possess those characteristics which Congress required when an immigration action's has forbidden,'" found that the longstanding constitutionality is in question. principle of deference to the political branches in the immigration context limited We are bound to give effect to both lines of its review of plaintiffs' challenge. The Court cases, meaning that we must enforce held that "when the Executive exercises this constitutional limitations on immigration power [to exclude an alien] on the basis of a actions while also applying Mandel's facially legitimate and bona fide reason, the deferential test to those actions as the courts will neither look behind the exercise of Supreme Court has instructed. For the that discretion, nor test it by balancing its reasons that follow, however, we find that justification against the [plaintiffs'] First these tasks are not mutually exclusive, and Amendment interests." The Court concluded that Mandel's test still contemplates that the Attorney General's stated reason for meaningful judicial review of constitutional denying Mandel's visa—that he had violated challenges in certain, narrow circumstances, the terms of prior visas—satisfied this test. It as we have here. therefore did not review plaintiffs' First To begin, Mandel's test undoubtedly imposes Amendment claim. a heavy burden on plaintiffs, consistent with Courts have continuously applied Mandel's the significant deference we afford the "facially legitimate and bona fide" test to political branches in the immigration context. challenges to individual visa denials. The government need only show that the Subsequently, in Fiallo v. Bell, the Supreme challenged action is "facially legitimate and Court applied Mandel's test to a facial bona fide" to defeat a constitutional challenge to an immigration law, finding "no challenge. These are separate and quite reason to review the broad congressional distinct requirements. To be "facially policy choice at issue here under a more legitimate," there must be a valid reason for exacting standard than was applied the challenged action stated on the face of the action.

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And as the name suggests, the "bona fide" We start with Mandel's requirement that the requirement concerns whether the challenged government action be "facially government issued the challenged action in legitimate." EO-2's stated purpose is "to good faith. In Kerry v. Din, Justice Kennedy, protect the Nation from terrorist activities by joined by Justice Alito, elaborated on this foreign nationals admitted to the United requirement. Here, the burden is on the States." EO-2, Preamble. We find that this plaintiff. Justice Kennedy explained that stated national security interest is, on its face, where a plaintiff makes "an affirmative a valid reason for Section 2(c)'s suspension of showing of bad faith" that is "plausibly entry. EO-2 therefore satisfies Mandel's first alleged with sufficient particularity," courts requirement. Absent allegations of bad faith, may "look behind" the challenged action to our analysis would end here in favor of the assess its "facially legitimate" justification. Government. But in this case, Plaintiffs have In the typical case, it will be difficult for a alleged that EO-2's stated purpose was given plaintiff to make an affirmative showing of in bad faith. We therefore must consider bad faith with plausibility and whether they have made the requisite particularity. And absent this affirmative showing of bad faith. showing, courts must defer to the government's "facially legitimate" reason for As noted, Plaintiffs must "plausibly allege[] with sufficient particularity" that the reason the action. for the government action was provided in Mandel therefore clearly sets a high bar for bad faith. Plaintiffs here claim that EO-2 plaintiffs seeking judicial review of a invokes national security in bad faith, as a constitutional challenge to an immigration pretext for what really is an anti-Muslim action. But although Mandel's "facially religious purpose. Plaintiffs point to ample legitimate and bona fide" test affords evidence that national security is not the true significant deference to the political reason for EO-2, including, among other branches' decisions in this area, it does not things, then-candidate Trump's numerous completely insulate those decisions campaign statements expressing animus from any meaningful review. Where towards the Islamic faith; his proposal to ban plaintiffs have seriously called into question Muslims from entering the United States; his whether the stated reason for the challenged subsequent explanation that he would action was provided in good faith, we effectuate this ban by targeting "territories" understand Mandel, as construed by Justice instead of Muslims directly; the issuance of Kennedy in his controlling concurrence EO-1, which targeted certain majority- in Din, to require that we step away from our Muslim nations and included a preference for deferential posture and look behind the stated religious minorities; an advisor's statement reason for the challenged action. In other that the President had asked him to find a way words, Mandel's requirement that an to ban Muslims in a legal way; and the immigration action be "bona fide" may in issuance of EO-2, which resembles EO-1 and some instances compel more searching which President Trump and his advisors judicial review. Plaintiffs ask this Court to described as having the same policy goals as engage in such searching review here under EO-1. Plaintiffs also point to the the traditional Establishment Clause test, and comparably weak evidence that EO-2 is we therefore turn to consider whether such a meant to address national security interests, test is warranted. including the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security

223 rationale, and evidence from DHS that EO-2 Court's duty to uphold the Constitution even would not operate to diminish the threat of in the context of a presidential immigration potential terrorist activity. action counsels in favor of applying our standard constitutional tool. Second, that Based on this evidence, we find that Plaintiffs Plaintiffs have satisfied Mandel's heavy have more than plausibly alleged that EO-2's burden to plausibly show that the reason for stated national security interest was provided the challenged action was proffered in bad in bad faith, as a pretext for its religious faith further supports the application of our purpose. And having concluded that the established constitutional doctrine. The "facially legitimate" reason proffered by the deferential framework set forth in Mandel is government is not "bona fide," we no longer based in part on general respect for the defer to that reason and instead may "look political branches' power in the immigration behind" EO-2. realm. Once plaintiffs credibly call into Since Justice Kennedy's concurrence in Din, question the political branches' motives for no court has confronted a scenario where, as exercising that power, our reason for here, plaintiffs have plausibly alleged with deferring is severely undermined. In the rare particularity that an immigration action was case where plaintiffs plausibly allege bad taken in bad faith. We therefore have minimal faith with particularity, more meaningful guidance on what "look[ing] behind" a review—in the form of constitutional challenged immigration action entails. See scrutiny—is proper. And third, in the context id. In addressing this issue of first impression, of this case, there is an obvious symmetry the Government does not propose a between Mandel's "bona fide" prong and the framework for this inquiry. Rather, the constitutional inquiry established in Lemon. Government summarily asserts that because Both tests ask courts to evaluate the EO-2 states that it is motivated by national government's purpose for acting. security interests, it therefore Because Plaintiffs have made a substantial satisfies Mandel's test. But this only responds and affirmative showing that the to Mandel's "facially legitimate" government's national security purpose was requirement—it reads out Mandel's "bona proffered in bad faith, we find it appropriate fide" test altogether. Plaintiffs, for their part, to apply our longstanding Establishment suggest that we review their claim using our Clause doctrine. Applying this doctrine normal constitutional tools. And in harmonizes our duty to engage in the the Establishment Clause context, our substantial deference required by Mandel and normal constitutional tool for reviewing its progeny with our responsibility to ensure facially neutral government actions is the test that the political branches choose in Lemon v. Kurtzman. constitutionally permissible means of We find for several reasons that because exercising their immigration power. We Plaintiffs have made an affirmative showing therefore proceed to "look behind" EO-2 of bad faith, applying the Lemon test to using the framework developed in Lemon to analyze EO-2's constitutionality is determine if EO-2 was motivated by a appropriate. First, as detailed above, the primarily religious purpose, rather than its Supreme Court has unequivocally stated that stated reason of promoting national security. the political branches' immigration actions 2. are still "subject to important constitutional limitations." The constitutional limitation in To prevail under the Lemon test, the this case is the Establishment Clause, and this Government must show that the challenged

224 action (1) "ha[s] a secular legislative campaign statements reveal that on numerous purpose," (2) that "its principal or primary occasions, he expressed anti-Muslim effect [is] one that neither advances nor sentiment, as well as his intent, if elected, to inhibits religion," and (3) that it does "not ban Muslims from the United States. For foster 'an excessive government instance, on December 7, 2015, Trump entanglement with religion.'" The posted on his campaign website a "Statement Government must satisfy all three prongs on Preventing Muslim Immigration," in of Lemon to defeat an Establishment which he "call[ed] for a total and complete Clause challenge. The dispute here centers shutdown of Muslims entering the United on Lemon's first prong. States until our representatives can figure out what is going on" and remarked, "[I]t is In the Establishment Clause context, obvious to anybody that the hatred is beyond "purpose matters." Under the Lemon test's comprehension. . . . [O]ur country cannot be first prong, the Government must show that the victims of horrendous attacks by people the challenged action "ha[s] a secular that believe only in Jihad, and have no sense legislative purpose." Accordingly, the of reason or respect for human life." In a Government must show that the challenged March 9, 2016 interview, Trump stated that action has a secular purpose that is "genuine, "Islam hates us," and that "[w]e can't allow not a sham, and not merely secondary to a people coming into this country who have religious objective." The government cannot this hatred.” Less than two weeks later, in a meet this requirement by March 22 interview, Trump again called for identifying any secular purpose for the excluding Muslims, because "we're having challenged action. Rather, the government problems with the Muslims, and we're having must show that the challenged problems with Muslims coming into the action's primary purpose is secular. country." And on December 21, 2016, when When a court considers whether a challenged asked whether recent attacks in Europe government action's primary purpose is affected his proposed Muslim ban, President- secular, it attempts to discern the "official Elect Trump replied, "You know my plans. objective . . . from readily discoverable fact, All along, I've proven to be right. 100% without any judicial psychoanalysis of a correct." drafter's heart of hearts." The court acts as a As a candidate, Trump also suggested that he reasonable, "objective observer," taking into would attempt to circumvent scrutiny of the account "the traditional external signs that Muslim ban by formulating it in terms of show up in the 'text, legislative history, and nationality, rather than religion. On July 17, implementation of the statute,' or comparable 2016, in response to a tweet stating, "Calls to official act." It also considers the action's ban Muslims from entering the U.S. are "historical context" and "the specific offensive and unconstitutional," Trump said, sequence of events leading to [its] "So you call it territories. OK? passage." And as a reasonable observer, a We're gonna do territories." One week later, court has a "reasonable memor[y]," and it Trump asserted that entry should be cannot "'turn a blind eye to the context in "immediately suspended[ed] . . . from any which [the action] arose.'" nation that has been compromised by The evidence in the record, viewed from the terrorism." When asked whether this meant standpoint of the reasonable observer, creates he was "roll[ing ]back" his call for a Muslim a compelling case that EO-2's primary ban, he said his plan was an "expansion" and purpose is religious. Then-candidate Trump's explained that "[p]eople were so upset when

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I used the word Muslim," so he was instead avoid targeting Muslims for exclusion from "talking territory instead of Muslim." the United States. Significantly, the First Executive Order These statements, taken together, provide appeared to take this exact form, barring direct, specific evidence of what motivated citizens of seven predominantly Muslim both EO-1 and EO-2: President Trump's countries from entering the United States. desire to exclude Muslims from the United And just before President Trump signed EO- States. The statements also reveal President 1 on January 27, 2017, he stated, "This is the Trump's intended means of effectuating the 'Protection of the Nation from Foreign ban: by targeting majority-Muslim nations Terrorist Entry into the United States.' We all instead of Muslims explicitly. And after know what that means." The next day, courts enjoined EO-1, the statements show presidential advisor and former New York how President Trump attempted to preserve City Mayor Giuliani appeared on Fox News its core mission: by issuing EO-2a "watered and asserted that "when [Trump] first down" version with "the same basic policy announced it, he said, 'Muslim ban.' He called outcomes." These statements are the exact me up. He said, 'Put a commission together. type of "readily discoverable fact[s]" that we Show me the right way to do it legally.'" use in determining a government action's primary purpose. They are explicit Shortly after courts enjoined the First statements of purpose and are attributable Executive Order, President Trump issued either to President Trump directly or to his EO-2, which the President and members of advisors. We need not probe anyone's heart his team characterized as being substantially of hearts to discover the purpose of EO-2, for similar to EO-1. EO-2 has the same name and President Trump and his aides have basic structure as EO-1, but it does not explained it on numerous occasions and in no include a preference for religious-minority uncertain terms. EO-2 cannot be read in refugees and excludes Iraq from its list of isolation from the statements of planning and Designated Countries. EO-2, § 1(e). It also purpose that accompanied it, particularly in exempts certain categories of nationals from light of the sheer number of statements, their the Designated Countries and institutes a nearly singular source, and the close waiver process for qualifying individuals. connection they draw between the proposed EO-2, § 3(b), (c). Senior Policy Advisor Muslim ban and EO-2 itself. The reasonable Miller described the changes to EO-2 as observer could easily connect these "mostly minor technical differences," and statements to EO-2 and understand that its said that there would be "the same basic primary purpose appears to be religious, policy outcomes for the country." White rather than secular. House Press Secretary Spicer stated that "[t]he principles of the [second] The Government argues, without executive order remain the same." And meaningfully addressing Plaintiffs' proffered President Trump, in a speech at a rally, evidence, that EO-2's primary purpose is in described EO-2 as "a watered down version fact secular because it is facially neutral and of the first order." These statements suggest operates to address the risks of potential that like EO-1, EO-2's purpose is to terrorism without targeting any particular effectuate the promised Muslim ban, and that religious group. That EO-2's stated objective its changes from EO-1 reflect an effort to help is religiously neutral is not dispositive; the it survive judicial scrutiny, rather than to entire premise of our review under Lemon is that even facially neutral government actions

226 can violate the Establishment Clause. We convincing as applied to EO-2 than it was to therefore reject the Government's suggestion EO-1. that EO-2's facial neutrality might somehow fully answer the question of EO-2's primary Relatedly, the Government argues that EO- 2's operation "confirms its stated purpose." purpose. "[I]t applies to six countries based on risk, not The Government's argument that EO-2's religion; and in those six countries, the primary purpose is related to national suspension applies irrespective of any alien's security, is belied by evidence in the record religion." In support of its argument that EO- that President Trump issued the First 2 does not single out Muslims, the Executive Order without consulting the Government notes that these six countries are relevant national security agencies, and that either places where ISIS has a heavy presence those agencies only offered a national (Syria), state sponsors of terrorism (Iran, security rationale after EO-1 was enjoined. Sudan, and Syria), or safe havens for Furthermore, internal reports from DHS terrorists (Libya, Somalia, and Yemen). The contradict this national security rationale, Government also points out that the six with one report stating that "most foreign- Designated Countries represent only a small born, US-based violent extremists likely proportion of the world's majority-Muslim radicalized several years after their entry to nations, and EO-2 applies to everyone in the United States, limiting the ability of those countries, even non-Muslims. This screening and vetting officials to prevent shows, the Government argues, that EO-2's their entry because of national security primary purpose is secular. The trouble with concerns." According to former National this argument is that EO-2's practical Security Officials, Section 2(c) serves "no operation is not severable from the myriad legitimate national security purpose," given statements explaining its operation as that "not a single American has died in a intended to bar Muslims from the United terrorist attack on U.S. soil at the hands of States. And that EO-2 is underinclusive by citizens of these six nations in the last forty targeting only a small percentage of the years" and that there is no evidence of any world's majority-Muslim nations new security risks emanating from these and overinclusive for targeting all citizens, countries. Like the district court, we think even non-Muslims, in the Designated this strong evidence that any national security Countries, is not responsive to the purpose justification for EO-2 was secondary to its inquiry. This evidence might be relevant to primary religious purpose and was offered as our analysis under Lemon's second prong, more of a "litigating position" than as the which asks whether a government act has the actual purpose of EO-2. And EO-2's text primary effect of endorsing or disapproving does little to bolster any national security of religion, but it does not answer whether the rationale: the only examples it provides of government acted with a primarily religious immigrants born abroad and convicted of purpose to begin with. If we limited our terrorism-related crimes in the United States purpose inquiry to review of the operation of include two Iraqis—Iraq is not a designated a facially neutral order, we would be caught country in EO-2—and a Somalian refugee in an analytical loop, where the order would who entered the United States as a child and always survive scrutiny. It is for this precise was radicalized here as an adult. EO-2, § reason that when we attempt to discern 1(h). The Government's asserted national purpose, we look to more than just the security purpose is therefore no more challenged action itself. And here, when we consider the full context of EO-2, it is evident

227 that it is likely motivated primarily by statements, we should not rely on campaign religion. We do not discount that there may statements. Those statements predate be a national security concern President Trump's constitutionally motivating EO-2; we merely find it likely that significant "transition from private life to the any such purpose is secondary to EO-2's Nation's highest public office," and as such, religious purpose. they are less probative than official statements, the Government contends. We The Government separately contends that our recognize that in many cases, campaign purpose inquiry should not extend to statements may not reveal all that much about "extrinsic evidence" that is beyond EO-2's a government actor's purpose. But we decline relevant context. The Government first to impose a bright-line rule against argues that we should not look beyond EO- considering campaign statements, because as 2's "text and operation." But this is clearly with any evidence, we must make an incorrect, as the Supreme Court has explicitly individualized determination as to a stated that we review more than just the face statement's relevancy and probative value in of a challenged action. light of all the circumstances. The campaign The Government next argues that even if we statements here are probative of purpose do look beyond EO-2 itself, under McCreary, because they are closely related in time, we are limited to considering only "the attributable to the primary decisionmaker, operative terms of governmental action and and specific and easily connected to the official pronouncements," Appellants' Br. 46, challenged action. which we understand to mean only EO-2 Just as the reasonable observer's "world is not itself and a letter signed by the Attorney made brand new every morning," nor are we General and the Secretary of State that able to awake without the vivid memory of largely echoes EO-2's text. We find no these statements. We cannot shut our eyes to support for this view such evidence when it stares us in the face, in McCreary. The McCreary Court for "there's none so blind as they that won't considered "the traditional external signs that see." If and when future courts are confronted show up in the 'text, legislative history, and with campaign or other statements proffered implementation of the [challenged as evidence of governmental purpose, those action],'"but it did not limit other courts' courts must similarly determine, on a case- review to those particular terms. Id. Nor did it by-case basis, whether such statements are make such an artificial distinction between probative evidence of governmental "official" and "unofficial" context. Rather, it purpose. Our holding today neither limits nor relied on principles of "common sense" and expands their review. the "reasonable observer[']s . . . reasonable memor[y]" to cull the relevant The Government argues that reviewing context surrounding the challenged campaign statements here would encourage action. The Government would have us scrutiny of all religious statements ever made abandon this approach in favor of an by elected officials, even remarks from unworkable standard that is contrary to the before they assumed office. Appellants' Br. well-established framework for considering 49-50. But our review creates no such the context of a challenged government sweeping implications, because as the action. Supreme Court has counseled, our purpose analysis "demands a sensitive inquiry into And finally, the Government argues that even such circumstantial and direct evidence of if we could consider unofficial acts and

228 intent as may be available." Just as a us] to wrestle with intractable questions," reasonable observer would not understand such as "the level of generality at which a general statements of religious conviction to statement must be made, by whom, and how inform later government action, nor would long after its utterance the statement remains we look to such statements as evidence of probative." But discerning the motives purpose. A person's particular religious behind a challenged government action is a beliefs, her college essay on religious well-established part of our purpose freedom, a speech she gave on the Free inquiry. As part of this inquiry, courts Exercise Clause—rarely, if ever, will such regularly evaluate decisionmakers' evidence reveal anything about that person's statements that show their purpose for acting. actions once in office. For a past statement to And the purpose inquiry is not limited be relevant to the government's purpose, to Establishment Clause challenges; we there must be a substantial, specific conduct this analysis in a variety of connection between it and the challenged contexts. We therefore see nothing government action. And here, in this highly "intractable" about evaluating a statement's unique set of circumstances, there is a direct probative value based on the identity of the link between the President's numerous speaker and how specifically the statement campaign statements promising a Muslim relates to the challenged government action, ban that targets territories, the discrete action for this is surely a routine part of he took only one week into office executing constitutional analysis. And this analysis is that exact plan, and EO-2, the "watered even more straightforward here, because we down" version of that plan that "get[s] just are not attempting to discern motive from about everything," and "in some ways, many legislators' statements, as in Brown, but more." rather are looking primarily to one person's statements to discern that person's motive for For similar reasons, we reject the taking a particular action once in office. Government's argument that our review of these campaign statements will "inevitably The Government has repeatedly asked this 'chill political debate during campaigns.'" Court to ignore evidence, circumscribe our Not all—not even most—political debate will own review, and blindly defer to executive have any relevance to a challenged action, all in the name of the Constitution's government action. Indeed, this case is separation of powers. We decline to do so, unique not because we are considering not only because it is the particular province campaign statements, but because we have of the judicial branch to say what the law is, such directly relevant and probative but also because we would do a disservice to statements of government purpose at all. To our constitutional structure were we to let its the extent that our review chills campaign mere invocation silence the call for promises to condemn and exclude entire meaningful judicial review. The deference religious groups, we think that a welcome we give the coordinate branches is surely restraint. powerful, but even it must yield in certain circumstances, lest we abdicate our own Lastly, the Government contends that we are duties to uphold the Constitution. ill-equipped to "attempt[] to assess what campaign statements reveal about the EO-2 cannot be divorced from the cohesive motivation for later action." The Government narrative linking it to the animus that inspired argues that to do so would "mire [us] in a it. In light of this, we find that the reasonable swamp of unworkable litigation," and "forc[e observer would likely conclude that EO-2's

229 primary purpose is to exclude persons from C. the United States on the basis of their religious beliefs. We therefore find that EO- Even if Plaintiffs are likely to suffer 2 likely fails Lemon's purpose prong in irreparable harm in the absence of a violation of the Establishment preliminary injunction, we still must Clause. Accordingly, we hold that the district determine that the balance of the equities tips court did not err in concluding that Plaintiffs in their favor, "pay[ing] particular regard for are likely to succeed on the merits of the public consequences in employing the their Establishment Clause claim. extraordinary remedy of injunction." This is because "courts of equity may go to greater B. lengths to give 'relief in furtherance of the public interest than they are accustomed to go Because we uphold the district court's when only private interests are involved.'" As conclusion that Plaintiffs are likely to the district court did, we consider the balance succeed on the merits of their Establishment of the equities and the public interest factors Clause claim, we next consider whether together. Plaintiffs have demonstrated that they are likely to suffer irreparable harm in the The Government first contends that "the absence of a preliminary injunction. As we injunction causes [it] direct, irreparable have previously recognized, "in the context injury" that outweighs the irreparable harm to of an alleged violation of First Plaintiffs because "'no governmental interest Amendment rights, a plaintiff's claimed is more compelling than the security of the irreparable harm is inseparably linked to the Nation.'" When it comes to national security, likelihood of success on the merits." the Government argues, the judicial branch Accordingly, our finding that Plaintiffs are "should not second-guess" the President's likely to succeed on the merits of their "'[p]redictive judgment[s].'" The constitutional claim counsels in favor of Government further argues that the finding that in the absence of an injunction, injunction causes institutional injury, because they will suffer irreparable harm. according to two single-Justice opinions, "[a]ny time a State is enjoined by a court Indeed, the Supreme Court has stated in no from effectuating statutes enacted by uncertain terms that "loss of First representatives of its people, it suffers a form Amendment freedoms, for even minimal of irreparable injury." The Government periods of time, unquestionably constitutes contends that this principle applies here irreparable injury." Though the Elrod Court because the President "represents the people was addressing freedom of speech and of all 50 states." association, our sister circuits have interpreted it to apply equally At the outset, we reject the notion that the to Establishment Clause violations. We President, because he or she represents the agree with these courts that because of "the entire nation, suffers irreparable harm inchoate, one-way nature of Establishment whenever an executive action is enjoined. Clause violations," they create the same type This Court has held that the Government is of immediate, irreparable injury as do other "in no way harmed by issuance of a types of First Amendment violations. We preliminary injunction which prevents [it] therefore find that Plaintiffs are likely to from enforcing restrictions likely to be found suffer irreparable harm if Section 2(c) of EO- unconstitutional." "If anything," we said, "the 2 takes effect. system is improved by such an injunction." Because Section 2(c) of EO-2 is likely

230 unconstitutional, allowing it to take effect that the Government's asserted national would therefore inflict the greater security interest outweighs the competing institutional injury. And we are not persuaded harm to Plaintiffs of the likely Establishment that the general deference we afford the Clause violation. political branches ought to nevertheless tip the equities in the Government's favor, for For similar reasons, we find that the public even the President's actions are not above interest counsels in favor of upholding the judicial scrutiny, and especially not where preliminary injunction. As this and other courts have recognized, upholding the those actions are likely unconstitutional. Constitution undeniably promotes the public We are likewise unmoved by the interest. These cases recognize that when we Government's rote invocation of harm to protect the constitutional rights of the few, it "national security interests" as the silver inures to the benefit of all. And even more so bullet that defeats all other asserted injuries. here, where the constitutional violation National security may be the most injures Plaintiffs and in the process compelling of government interests, but this permeates and ripples across entire religious does not mean it will always tip the balance groups, communities, and society at large. of the equities in favor of the government. A claim of harm to national security must still When the government chooses sides on outweigh the competing claim of injury. Here religious issues, the "inevitable result" is and elsewhere, the Government would have "hatred, disrespect and even contempt" us end our inquiry without scrutinizing either towards those who fall on the wrong side of Section 2(c)'s stated purpose or the the line. Improper government involvement Government's asserted interests, but with religion "tends to destroy government "unconditional deference to a and to degrade religion," encourage government agent's invocation of persecution of religious minorities and 'emergency' . . . has a lamentable place in our nonbelievers, and foster hostility and division history," and is incompatible with our duty to in our pluralistic society. The risk of these harms is particularly acute here, where from evaluate the evidence before us. the highest elected office in the nation has As we previously determined, the come an Executive Order steeped in animus Government's asserted national security and directed at a single religious group. "The interest in enforcing Section 2(c) appears to fullest realization of true religious liberty be a post hoc, secondary justification for an requires that government neither engage in executive action rooted in religious animus nor compel religious practices, that it effect and intended to bar Muslims from this no favoritism among sects or between country. We remain unconvinced that religion and nonreligion, and that it work Section 2(c) has more to do with national deterrence of no religious belief." We security than it does with effectuating the therefore conclude that enjoining Section President's promised Muslim ban. We do not 2(c) promotes the public interest of the discount that EO-2 may have some national highest order. And because Plaintiffs have security purpose, nor do we disclaim that the satisfied all the requirements for securing a injunction may have some impact on the preliminary injunction, we find that the Government. But our inquiry, whether for district court did not abuse its discretion in determining Section 2(c)'s primary purpose enjoining Section 2(c) of EO-2. or for weighing the harm to the parties, is one of balance, and on balance, we cannot say V.

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Lastly, having concluded that Plaintiffs are Finally, the Government argues that the entitled to a preliminary injunction, we district court erred by issuing the injunction address the scope of that injunction. The against the President himself. We recognize Government first argues that the district court that "in general, 'this court has no jurisdiction erred by enjoining Section 2(c) nationwide, of a bill to enjoin the President in the and that any injunctive relief should be performance of his official duties,'" and that limited solely to Plaintiffs. a "grant of injunctive relief against the President himself is extraordinary, and It is well-established that "district courts have should . . . raise[] judicial eyebrows.” In light broad discretion when fashioning injunctive of the Supreme Court's clear warning that relief." Nevertheless, "their powers are not such relief should be ordered only in the boundless." The district court's choice of rarest of circumstances we find that the relief "should be carefully addressed to the district court erred in issuing an injunction circumstances of the case," and "should be no against the President himself. We therefore more burdensome to the defendant than lift the injunction as to the President only. necessary to provide complete relief to the The court's preliminary injunction shall plaintiffs.” Courts may issue nationwide otherwise remain fully intact. injunctions consistent with these principles. To be clear, our conclusion does not "in any The district court here found that a number of way suggest[] that Presidential action factors weighed in favor of a nationwide is unreviewable. Review of the legality of injunction, and we see no error. First, Presidential action can ordinarily be obtained Plaintiffs are dispersed throughout the United in a suit seeking to enjoin the officers who States. Second, nationwide injunctions are attempt to enforce the President's directive." especially appropriate in the immigration Even though the President is not "directly context, as Congress has made clear that "the bound" by the injunction, we "assume it is immigration laws of the United States should substantially likely that the President . . be enforced vigorously and uniformly." And . would abide by an authoritative third, because Section 2(c) likely violates interpretation" of Section 2(c) of the Second the Establishment Clause, enjoining it only as Executive Order. to Plaintiffs would not cure the constitutional deficiency, which would endure in all Section VI. 2(c)'s applications. Its continued enforcement against similarly situated individuals would For all of these reasons, we affirm in part and only serve to reinforce the "message" that vacate in part the preliminary injunction Plaintiffs "are outsiders, not full members of awarded by the district court. We also deny the political community." For these reasons, as moot Defendants' motion for a stay we find that the district court did not abuse its pending appeal. discretion in concluding that a nationwide AFFIRMED IN PART, VACATED IN PART injunction was "necessary to provide complete relief."

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“Supreme Court finds a compromise in reviving Trump's travel ban”

The Los Angeles Times David G Savage, Laura King, Noah Bierman June 26, 2017

The Supreme Court on Monday took a The justices also strongly hinted that they pragmatic approach to resolving the dispute may never need to settle the larger over President Trump’s foreign travel ban constitutional issues because the case could with a middle-ground ruling that may defuse be moot by the time they hear it in the fall. the controversy — for now. The administration argued it needed the 90- The decision, the first from the high court to day pause to review and revise its vetting review Trump’s exercise of presidential procedures for travelers from Iran, Somalia, power, allowed much of the ban to take Sudan, Syria, Libya and Yemen. Assuming effect, but it also applied significant the order takes effect now, the ban will have restrictions that will narrow the order’s expired by October when the court impact. reconvenes. In a short, unsigned but unanimous opinion, Trump had long voiced confidence he would the justices avoided taking a stance on the prevail when the travel ban case reached the larger constitutional questions concerning high court and on Monday he called the religious discrimination or presidential decision a “clear victory” for his authority. Instead, they agreed to hear those administration. arguments in the fall. “Today’s ruling allows me to use an But they also largely rejected the lower court important tool for protecting our nation’s rulings that had blocked Trump’s order as homeland,” the president said. unconstitutional, handing a partial victory to The administration did not provide the president and his lawyers after a string of immediate specifics on how the decision rebukes in federal courts from Hawaii to would change existing policy, leaving Maryland. attorneys at the Justice Department to review The ruling clears the way for Trump’s 90-day the court’s language before working with ban on foreign arrivals from six Muslim- other federal agencies to draft temporary majority countries to take effect, but it also rules. carved out exemptions for those with “bona Trump officials also acknowledged that their fide relationships” with Americans or U.S. optimism may be subject to change, entities, including spouses, other close family depending on how far the government’s members, employers and universities.

233 lawyers are willing to push the ruling and to the U.S.,” including those with urgent how lower courts interpret the high court’s medical conditions. language. All nine justices apparently agreed with the That caution contrasted with the outcome Monday. Three of the court’s administration’s earlier handling of the issue, conservatives — Justices Clarence Thomas, when Trump signed a hastily drafted travel Samuel A. Alito Jr. and Neil M. Gorsuch — ban just days after taking office. The result said they would have gone further and was a chaotic execution, with uncertainty at allowed the entire order to take effect airports around the world over who would be immediately. allowed to enter the country. Under the compromise crafted by the Immigrant rights lawyers who sued to block court,“foreign nationals who have a credible Trump’s order were disappointed with claim of a bona fide relationship with a Monday’s ruling, but downplayed its impact. person or entity in the United States” are exempted from the ban. The order “will take effect in a very limited way,” said Karen Tumlin, legal director for "The students from the designated countries the National Immigration Law Center in Los who have been admitted to the University of Angeles. The ban will apply “only to a small Hawaii have such a relationship with an subset of people who lack any relationship” American entity," the court said. "So too with a person in this country or an institution would a worker who accepted an offer of such as a school or a hospital. employment from an American company or a lecturer invited to address an American Some welcomed what they described as an audience." implicit rebuke of the White House’s assertion that Trump has unfettered powers to Since many visitors from the six affected exclude arrivals based on purported national countries have such a relationship, the impact security concerns. of the order may be narrow. But others worried about the message it may But in his dissent, Thomas predicted the send. It “ignores the anti-Muslim bigotry that court’s approach would fail and lead to a is at the heart of the travel ban executive “flood of litigation” to determine which orders and will inevitably embolden visitors are exempt. Islamphobes in the administration,” said “I fear that the court’s remedy will prove Nihad Awad, executive director of the unworkable,” Thomas said. “Today’s Council on American-Islamic Relations. compromise will burden executive officials David Miliband, president of the with the task of deciding — on peril of International Rescue Committee, said the contempt — whether individuals from the six partial reinstatement of the ban particularly affected countries who wish to enter the threatens “vulnerable people waiting to come United States have a sufficient connection to a person or entity in this country.”

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Last month, the 4th Circuit Court of Appeals of Sec. 2c," the court said, referring to the key in Virginia upheld a district judge’s ruling in clause in the travel ban order. Maryland blocking Trump’s order. The The case decided Monday was named Trump appeals court, in a 10-3 decision, said the vs. International Refugee Assistance Project executive order reflected an unconstitutional and Trump vs. Hawaii. discrimination based on religion. Its opinion cited Trump’s campaign pledge to enact a “Muslim ban.” Shortly afterward, the 9th Circuit Court in California upheld a district judge’s ruling in Hawaii and ruled Trump’s order was illegal because the president did not demonstrate a threat to national security. Trump's lawyers argued both decisions were fundamentally mistaken. They said the Constitution and immigration laws give the president the power to temporarily “suspend” the entry of foreigners, either individuals or groups. And they argued that the high court has made clear judges have no authority to “second-guess” the president’s determination that national security was in danger.

Without hearing arguments in the two cases, the justices agreed the lower courts had gone too far. The outcome suggests that many of the justices were as troubled by the bold intervention of the judges who blocked Trump’s order as they were by the bold action of the new president. The court’s opinion noted the government is free to work on the new vetting procedures for immigrants from the six countries. This was the ostensible purpose of the order in the first place. "We fully expect that the relief we grant today will permit the executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life

235

“Trump Refugee Restrictions Allowed for Now; Ban on Grandparents Is Rejected”

The New York Times Adam Liptak July 19, 2017

The Supreme Court on Wednesday Last month, the Supreme Court agreed to temporarily upheld broad restrictions against decide whether the travel ban was lawful, and refugees entering the United States but it scheduled arguments for October. In the allowed grandparents and other relatives of meantime, the justices temporarily reinstated American residents to come while legal the travel ban — but only for people without challenges to the Trump administration’s “a credible claim of a bona fide relationship travel ban move forward. with a person or entity in the United States.” The court did not specify who qualified as a The justices, in a brief unsigned order, let close relative, though it did say that spouses stand part of a ruling from a federal judge in and mothers-in-law “clearly” counted. Hawaii that had narrowed the administration’s efforts to limit travel from The Trump administration interpreted the six predominantly Muslim countries, an Supreme Court’s decision as excluding most effort that has prompted confusion at the refugees and entry only of American nation’s airports, a global outcry and much residents’ parents, children, spouses, parents- litigation since President Trump announced it in-law, sons- and daughters-in-law, people a week into his presidency. engaged to be married and siblings. But the justices suspended a second part of Last week, Judge Derrick K. Watson of the lower court’s ruling, standing firm for Federal District Court in Honolulu ruled that now against allowing an estimated 24,000 the administration’s approach had refugees from across the world to resettle in disregarded the language and logic of the the United States. Supreme Court’s ruling, fairness and the conventional understanding of who counts as In the terse order, Justices Clarence Thomas, a close family member. Samuel A. Alito Jr. and Neil M. Gorsuch said they would have blocked the judge’s entire “Common sense, for instance, dictates that order while the case proceeds — including close family members be defined to include the part that allowed American residents’ grandparents,” Judge Watson wrote. “Indeed, grandparents and other relatives to travel to grandparents are the epitome of close family the United States from the six countries: Iran, members. The government’s definition Libya, Syria, Somalia, Sudan and Yemen. excludes them. That simply cannot be.”

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The next day, Attorney General Jeff Sessions Lawyers for Hawaii who are challenging the criticized the ruling as undermining national travel ban disputed that assertion. They said security, creating confusion and violating about 24,000 refugees had a formal assurance respect for separation of powers. of help from a settlement agency, while another 175,000 in the pipeline did not. “The district court has improperly substituted its policy preferences for the national security “Many of those refugees — as well as judgments of the executive branch in a time countless visa applicants from the targeted of grave threats, defying both the lawful nations — will be unable to demonstrate any prerogatives of the executive branch and the other form of bona fide relationship with an directive of the Supreme Court,” Mr. American party, meaning that they will be Sessions said in a statement. absolutely barred from entering the country in the next several months,” the Hawaii Later that day, the administration filed a lawyers wrote. motion asking the Supreme Court to clarify its decision. It said the justices should act They also said Judge Watson’s order did immediately, without waiting for a ruling nothing to stop the administration from from the appeals court. enforcing its travel ban against an estimated 85 percent of refugees, or to exclude The administration said it was entitled to extended family members “who indisputably exclude refugees whom resettlement lack close relationships with American agencies had planned to help move to the individuals and entities.” United States. Judge Watson disagreed, writing that the Supreme Court had meant to On Wednesday, the Supreme Court rejected allow such people to enter the country. the administration’s request for clarity on the scope of last month’s decision. The justices “An assurance from a United States refugee said that the appeal in the case should follow resettlement agency, in fact, meets each of the ordinary course and that the United States the Supreme Court’s touchstones,” he wrote. Court of Appeals for the Ninth Circuit, in San “It is formal, it is a documented contract, it is Francisco, should first address the question. binding, it triggers responsibilities and obligations, including compensation, it is In temporarily blocking the part of Judge issued specific to an individual refugee only Watson’s order concerning refugees, the when that refugee has been approved for Supreme Court indicated that the entry by the Department of Homeland government’s arguments had weight. In Security.” declining to disturb the part of the order that allowed relatives to enter, the Supreme Court In its Supreme Court brief, the Justice suggested that the administration might have Department said that Judge Watson’s ruling overreached. “would render the refugee portion of this court’s decision effectively meaningless.” Challenges to Mr. Trump’s travel bans have been ricocheting around the federal courts for almost as long as he has been president.

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His first ban, issued in January, caused chaos at the nation’s airports until it was blocked by the courts. Rather than appealing to the Supreme Court, the administration issued a revised executive order in March. But that order, too, was blocked by federal appeals courts, which ruled that it violated the Constitution by discriminating based on religion and that it exceeded Mr. Trump’s authority. The Supreme Court is scheduled to hear arguments on October 10. In a partial dissent from the Supreme Court’s decision last month, Justice Thomas said the line the court had drawn, allowing those with “bona fide relationships” to enter the country, was unworkable. He predicted — accurately — that the court’s compromise would “invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a ‘bona fide relationship.’”

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“Hawaii Challenges Trump Administration Again As Travel Ban Takes Effect”

Associated Press June 29, 2017

The state of Hawaii has filed a court citizen or entity. The Trump administration challenge to the Trump administration’s had said the exemption would apply to definition of a close U.S. relationship needed citizens with a parent, spouse, child, adult son to avoid the new travel ban. or daughter, son-in-law, daughter-in-law or sibling already in the U.S. Hawaii Attorney General Doug Chin says he’s concerned the administration may be Chin says many of the people that the federal violating the U.S. Supreme Court’s travel ban government decided to exclude are ruling. considered “close family” in Hawaii. The travel ban temporarily barring some At a press conference Monday, Chin said he citizens of six majority-Muslim countries welcomed the Supreme Court’s from coming into the United States went into announcement that it will hear challenges to effect Thursday. The new rules stop people the travel ban this fall, even though it allowed from Syria, Sudan, Somalia, Yemen, Iran and part of the ban to temporarily take effect. Libya from getting a visa to the United States Hawaii has been on the front line of the battle unless they have a “bona fide” relationship against Trump’s travel ban and other policies. with a close relative, school or business in the U.S. Oral arguments in the case are scheduled for October. Chin said he would attend, but that Based on a schedule set by U.S. District he expected Neal Katyal, the lead attorney for Judge Derrick Watson, the administration has the state in Hawaii v. Trump, would conduct until Monday to respond to Hawaii’s motion, arguments before the court. Chin said at a Friday press conference. The state will then have until Thursday to respond Hawaii filed its lawsuit Feb. 3, one week after to the federal government, he said. the president issued the original travel ban. It called for suspending the U.S. refugee Watson will issue a decision after that, Chin program for 120 days, banned Syrian said, adding there are no plans for a hearing refugees indefinitely and barred citizens of at this time. seven Muslim-majority countries from The U.S. Supreme Court on Monday entering the United States for 90 days. exempted people from the ban if they can That suit was suspended by Judge Watson in prove a “bone fide” relationship with a U.S. Honolulu after a federal judge in Seattle

239 issued a nationwide injunction against the plan. In March, Trump modified his ban, removing Iraq from the list of seven banned nations (Iran, Libya, Somalia, Sudan, Syria and Yemen) and not singling Syrian refugees for an indefinite ban or giving preferential treatment to the refugee claims of religious minorities. Watson then allowed Hawaii to modify its suit to challenge the second ban, and ultimately issued a nationwide injunction against it.

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“Trump Takes Travel Ban Dispute to U.S. Supreme Court Again”

Bloomberg Law Greg Stohr July 14, 2017

President Donald Trump’s administration fide relationship with a person or entity in the took the dispute over his temporary travel ban United States” to enter. to the Supreme Court again, asking the The limited travel ban took effect June 30. justices to let the government bar entry into The Trump administration announced it the U.S. by people with grandparents and would let people enter the U.S. who had a cousins in the country. parent, spouse, fiance, child, sibling, son- or The administration filed papers late Friday daughter-in-law, or a parent-in-law in the asking the court to clarify a June 26 decision country. The standard excluded those whose that said the government had to admit at least closest connections were grandparents, some close relatives, including spouses and grandchildren, aunts, uncles, nieces, parents-in-law. A federal trial judge in nephews, cousins, and brothers- or sisters-in- Hawaii this week said the government law. couldn’t exclude several other types of U.S. District Judge Derrick Watson ruled family members either, and the Thursday that the government’s exemption administration is seeking to free itself from from the ban was too narrow. “Common that ruling. sense, for instance, dictates that close family That ruling “distorts this court’s decision and members be defined to include upends the equitable balance this court grandparents,” Watson wrote. struck,” acting U.S. Solicitor General Jeffrey The Supreme Court had said people with a Wall said in court papers. “bona fide relationship” included those The Supreme Court told the challengers to visiting a close family member, students who the ban to file a response by noon have been admitted to a university, or Washington time on July 18. workers who have accepted an employment offer. The Supreme Court already has agreed to hear arguments in the fall on Trump’s 90-day In announcing the administration would ban, which applies to people entering the immediately take the matter to the Supreme U.S. from six mostly Muslim countries. The Court, Attorney General Jeff Sessions said in June 26 ruling said a limited form of the ban a statement Friday, “Once again, we are faced could take effect in the meantime, allowing with a situation in which a single federal only people with a “credible claim of a bona district court has undertaken by a nationwide

241 injunction to micromanage decisions of the executive order. Watson said the government co-equal executive branch related to our couldn’t exclude refugees once a resettlement national security.” agency has provided a formal assurance that it will provide basic services for the person. Trump’s March 6 executive order said the 90- day travel ban would give officials time to In a separate filing Saturday, the Trump assess U.S. vetting procedures and would administration also asked a San Francisco- address an “unacceptably high” risk that based federal appeals court to put Watson’s terrorists could slip into the country. Lower decision on hold. The two filings overlap, and courts blocked the ban, saying Trump the appeals court could defer action until it overstepped his authority and sees what the Supreme Court does. unconstitutionally targeted Muslims.

When the Supreme Court partially revived the travel ban in June, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have let the entire ban take effect immediately. Thomas warned that the definition of bona fide relationships would open the door to a “flood of litigation” as U.S. customs and border officials wrestle with whether travelers from the six countries have sufficient ties.

In its new court filing, the Trump administration asked the court to block Watson’s order temporarily while the justices consider the motion to clarify.

The administration also said Watson was wrong to permit more refugees to be admitted under a separate provision in Trump’s

242

“Challengers file briefs in Supreme Court on travel ban, while 9th Circuit leaves freeze on ban in place”

SCOTUSblog Amy Howe June 12, 2017

It was a busy day for litigation in the prohibiting the implementation of the travel challenges to President Donald Trump’s ban. In that case, the appeals court relied March 6 executive order, often known as the heavily on the Constitution’s bar against “travel ban.” Citing national security favoring one religion over another, known as concerns, the order imposed a temporary hold the establishment clause: Although the on new visas for travelers from six Muslim- executive order indicates that it was intended majority countries (Iran, Libya, Somalia, to protect the United States from foreign Sudan, Syria and Yemen) and suspended terrorists, the court concluded, statements by travel by refugees into the United States. The the president reveal that the order was order was the second of its kind; an earlier actually intended to exclude Muslims from version, issued in late January, was blocked the country. by the U.S. Court of Appeals for the 9th The government’s June 1 filings asked the Circuit. The March order didn’t fare much justices both to review the 4th Circuit’s ruling better in the lower courts, and on June 1 the and to freeze the Maryland court’s order Trump administration asked the Supreme barring the government from putting the ban Court to enter the fray. Today the challengers into effect. But it also asked the government submitted their responses to the to step into a second challenge, which hails government’s filings in the Supreme Court. from Hawaii. Like the Maryland judge, a However, those briefs were partly federal district court in Hawaii also blocked overshadowed by another development: a 9th the government from implementing the travel Circuit decision that largely upheld a Hawaii ban, but the 9th Circuit had not yet issued its district court’s ruling barring the government decision in that case when the government from enforcing the ban. went to the Supreme Court at the beginning There are two different sets of challenges to of this month. the travel ban involved in today’s Supreme The 9th Circuit’s ruling came today. Like the Court filings. The first comes via the U.S. 4th Circuit, the Hawaii district court had Court of Appeals for the 4th Circuit, which in ruled that the challengers had shown that they late May rejected the federal government’s were likely to win (part of the legal test for plea to set aside an order by a Maryland judge

243 obtaining temporary relief) on their claim goal. The 9th Circuit observed that the ban that the travel ban violated the establishment would bar “more than 180 million people clause, and it entered a nationwide order from entry based on their national origin, barring the government from enforcing the including nationals who may have never been ban. physically present in those countries.” But at the same time, the court added, it would allow The 9th Circuit also ruled for the challengers, nationals of other countries who do have ties but on a different ground. In an unsigned and to the six covered countries to come to the apparently unanimous opinion, it explained United States. As the Hawaii district court that courts should try whenever possible not put it, the ban “could have the paradoxical to reach constitutional questions if they can effect of barring entry by a Syrian national decide the case on another ground. In this who has lived in Switzerland for decades, but case, the court continued, it did not need to not a Swiss national who has immigrated to rule on whether the ban violates the Syria during its civil war.” establishment clause because the ban also exceeds the power that Congress has given to The president also did not find that current the president to regulate immigration. standards for vetting visa applicants or refugees are inadequate before issuing the The 9th Circuit acknowledged that the executive order, nor did he find that the Immigration and Nationality Act “gives the United States would be harmed if the current President broad powers to control the entry standards weren’t changed. Indeed, the court of” immigrants into the country, and it also of appeals pointed out, the government allows him to “take actions to protect the already can deny a visa application if the American public.” But, the court of appeals individual seeking the visa cannot show that explained, the president cannot simply he is eligible. This case-by-case tool allows invoke “national security” as a “talismanic the government to screen visa applicants and incantation” to justify an exercise of deny applications from individuals who executive power. Rather, the INA allows the might pose a threat to the United States, and president to act only after he finds that the executive order does not explain why the allowing an immigrant or group of individual visa process is so “flawed” that the immigrants to enter the country “would be government must instead exclude “an entire detrimental” to U.S. interests, and the class of nationals” from the country. government has not made that showing. The 9th Circuit did hand the Trump For example, the court stressed, the administration one minor victory: It agreed government did not find that allowing that the Hawaii district court should not have refugees or any citizens from the six covered blocked the government from carrying out Muslim-majority countries would harm the some internal government procedures – for national interest. And the court perceived a example, reviewing the vetting process to disconnect between the government’s determine what information foreign announced desire to protect national security and the way that it wanted to accomplish that

244 governments need to provide – that don’t revised order for nearly a month – “with some affect anyone outside the executive branch. of that delay,” Hawaii suggests, “motivated by a desire to take advantage of a favorable The 9th Circuit issued its opinion just a few news cycle.” And when the Hawaii district hours before the deadline for the challengers court blocked the second order, the state to file their briefs in the Supreme Court. notes, the government spent “weeks litigating Several themes emerged in the three filings. the issues” in the district court before it went The American Civil Liberties Union (which to the court of appeals. “These are not the represents the challengers in the Maryland actions,” Hawaii contends, “of a Government case) told the justices that it would be that believes the immediate implementation “pointless” for them to grant review because of its order is necessary to avoid irreparable the executive order specifically provides that harm.” nationals of the six Muslim-majority countries may not enter the United States for But in any event, the challengers add, the 90 days after the order became effective. The Supreme Court should not grant review of the challengers maintain that the 90-day period 4th Circuit’s decision because the court of ends in two days, on Wednesday, June 14 – appeals “carefully and correctly applied this at which point, they argue, the government’s Court’s precedents to this unique situation.” appeal will no longer matter. Accepting the government’s argument, the challengers maintain, would allow “the In a separate filing opposing the executive branch to act in open bad faith, government’s request to allow the ban to go even though there is plenty of evidence that into effect until the Supreme Court can weigh the order was intended “to disfavor in, the ACLU contended that if the travel ban Muslims.” doesn’t expire on Wednesday, allowing it to go into effect would effectively enable the Today’s ruling by the 9th Circuit could add a government to run out the clock, because the procedural wrinkle to the proceedings in the Justice Department has asked the court to Supreme Court. The justices may, for review the case next fall, “more than 90 days example, want additional briefing on the from now.” Moreover, the ACLU tells the effect of the 9th Circuit’s ruling, or the justices, if the ban is implemented it will government could ask the court to weigh in create “enormous confusion” while causing on the 9th Circuit’s ruling as well. But with “immediate and widespread harm to” the the end of the court’s term less than three challengers and “others like them.” weeks away, the next steps – whatever they may be – are likely to come quickly. Hawaii adds that despite the government’s protests that time is of the essence, the government itself is responsible for the slow pace of litigation over the travel ban. For example, although the 9th Circuit put the first ban on hold on February 9, the Trump administration did not issue the second,

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“Trump’s New Travel Ban Blocks Migrants From Six Nations, Sparing Iraq”

The New York Times Glenn Thrush March 6, 2017

President Trump signed an executive order But the heart of the sweeping executive on Monday blocking citizens of six action is still intact, reflecting Mr. Trump’s predominantly Muslim countries from “America first” pledge to safeguard against entering the United States, the most what he has portrayed as a hidden influx of significant hardening of immigration policy terrorists and criminals — a hard-line in generations, even with changes intended to campaign promise that resonated deeply with blunt legal and political opposition. white working-class voters. The order was revised to avoid the tumult and The new order retains central elements of the protests that engulfed the nation’s airports old one, cutting the number of refugees after Mr. Trump signed his first immigration admitted to the United States each year to directive on Jan. 27. That order was 50,000 from about 110,000. Mr. Trump is ultimately blocked by a federal appeals court. also leaving open the possibility of expanding the ban to other countries, or even The new order continued to impose a 90-day putting Iraq back on the banned list if the ban on travelers, but it removed Iraq, a country’s leaders fail to comply with a redaction requested by Defense Secretary Jim requirement that they increase intelligence Mattis, who feared it would hamper sharing, officials said. coordination to defeat the Islamic State, according to administration officials. “Unregulated, unvetted travel is not a universal privilege, especially when national It also exempts permanent residents and security is at stake,” said John F. Kelly, the current visa holders, and drops language homeland security secretary, appearing offering preferential status to persecuted alongside Secretary of State Rex W. Tillerson religious minorities, a provision widely and Attorney General Jeff Sessions at the interpreted as favoring other religious groups Ronald Reagan Federal Building in over Muslims. In addition, it reversed an Washington on Monday. indefinite ban on refugees from Syria, replacing it with a 120-day freeze that Mr. Kelly said the order was now requires review and renewal. “prospective” and applied “only to foreign nationals outside of the United States” who

246 do not have a valid visa. None of the men more sanguine about the second order, took questions. arguing that the new, multiagency review process could be used in the future to bend The Trump administration quickly tried to Mr. Trump’s uncompromising messages break the legal logjam, filing papers in toward Washington’s bureaucratic realities. United States District Court in Washington late on Monday seeking to lift an order Mr. Trump signed the first ban with great blocking the fulfillment of the initial ban. fanfare, in front of reporters, at the Pentagon. “We don’t want them here,” Mr. Trump said But the president’s revisions did little to halt of Islamist terrorists. “We want to ensure that criticism from Democrats and immigrant we are not admitting into our country the very rights advocates, who predicted a renewed threats our soldiers are fighting overseas. We fight in the courts. only want to admit those into our country The Senate Democratic leader, Chuck who will support our country, and love Schumer of New York, described the new deeply our people.” order as a “watered-down ban” that was still This time, the White House issued a “meanspirited and un-American.” photograph of the president signing the order Margaret Huang, the executive director of alone at his desk in the Oval Office. Amnesty International USA, said in a Justice Department lawyers said the revisions statement that the new order would “cause rendered moot legal cases against the original extreme fear and uncertainty for thousands of travel ban. But opponents said the removal of families by, once again, putting anti-Muslim a section that had granted preferential hatred into policy.” treatment to victims of religious persecution The new measure will be phased in over the was a cosmetic change that did nothing to next two weeks to avoid the frenetic, same- alter the order’s prejudicial purpose. day execution of the order in January, which Immigrant rights lawyers had argued that the prompted protests across the country and left provision was intended to discriminate tearful families stranded at airports abroad against Muslims, pointing to recent and in the United States. statements by Mr. Trump. The redrafted order, delayed by a week so it “This is a retreat, but let’s be clear — it’s just would not overshadow Mr. Trump’s address another run at a Muslim ban,” said Omar to a joint session of Congress last Tuesday, Jadwat, the director of the Immigrants’ represented a recognition that the rushed first Rights Project at the American Civil attempt at the ban did not pass muster legally Liberties Union, one of the groups that sued or politically. to stop the first order. “They can’t unring the bell.” Administration officials privately conceded that the initial version of the order was a Eric T. Schneiderman, the attorney general of political debacle that damaged Mr. Trump’s New York and a plaintiff in a suit seeking to nascent presidency. But they were much block the first order, said his office was

247 reviewing the new ban, adding, “I stand ready unsupported accusation that President Barack to litigate — again — in order to protect New Obama tapped Mr. Trump’s phones during York’s families, institutions and economy.” the 2016 campaign. Congressional Republicans, who were split Critics say that Mr. Trump’s vow to impose over the first travel ban, had a more muted “extreme vetting” on migrants, especially reaction. But Speaker Paul D. Ryan, who those fleeing the war in Syria, disregards backed the first order, issued a statement already stringent screening measures, and the saying the revised order “advances our fact that none of the recent terrorist attacks or shared goal of protecting the homeland.” mass shootings on American soil were perpetrated by people from the nations listed Citizens of Iran, Somalia, Sudan, Yemen, in the ban. Syria and Libya will face a 90-day suspension of visa processing as the Last week, The Associated Press reported administration analyzes how to strengthen that it had obtained a draft homeland security vetting procedures, according to a homeland assessment concluding that citizenship was security summary of the order. an “unlikely indicator” of a threat. The removal of Iraq from the list came after Homeland security officials, speaking to talks with security officials in Baghdad and at reporters by telephone on Monday, pushed the urging of Mr. Mattis and State back against that news report, arguing that it Department officials, who have been in was culled from public sources and excluded communication with Iraqi officials alarmed classified information that paints a more that the ban will turn public sentiment in their dangerous picture. country against the United States. An official speaking on the call said the “On the basis of negotiations that have taken Justice Department had identified 300 place between the government of Iraq and the “refugees” who were being investigated for U.S. Department of State in the last month, their links to Islamist terrorist groups or for Iraq will increase cooperation with the U.S. holding pro-Islamic State positions. Some of government on the vetting of its citizens those people already have permanent resident applying for a visa to travel to the United status, the official said. States,” homeland security officials wrote in But homeland security and Justice a fact sheet given to reporters. Department officials declined to provide The timing of the ban seemed intended to further details, and would not say how many reset the White House political narrative, of the 300 people being investigated came after a turbulent week that began with Mr. from the countries covered by the revised Trump’s well-received address to Congress. travel ban. That success was quickly overshadowed by the controversies over Mr. Sessions’s failure to inform the Senate of his contacts with the Russian ambassador and Mr. Trump’s

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“Trump Concedes Defeat on Travel Ban—for Now”

The Atlantic Matt Ford February 17, 2017

The Trump administration told a federal the new president’s first month in office. The appeals court Thursday it would rewrite its order’s sudden, haphazard rollout on January controversial travel ban targeting several 27, one week after President Trump’s Muslim-majority countries, effectively inauguration, stranded travelers in airports conceding defeat for now in the new and sparked protests at major U.S. airports as president’s first major confrontation with the demonstrators and lawyers demanded their federal judiciary. release from custody. Federal judges in multiple states eventually intervened at the In a 61-page filing in the Ninth Circuit Court request of the ACLU and immigrant-rights of Appeals, Justice Department lawyers groups, blunting the order’s impact in a strongly disagreed with a three-judge patchwork archipelago of temporary appellate panel’s decision to keep blocking restraining orders. the order’s enforcement while proceedings continue in a federal district court in Seattle. The setback came despite sustained criticism But the lawyers declined to ask the Ninth from the Trump administration of the rulings; Circuit to convene a broader panel to of federal district court judge James Robart, reconsider the three judges’ decision. who issued the broadest nationwide injunction against the ruling; of the three- “Rather than continuing this litigation, the judge panel that upheld Robart’s injunction; President intends in the near future to rescind of the Ninth Circuit as a whole; and of the the Order and replace it with a new, federal judiciary. Those critiques ranged substantially revised Executive Order to from challenges to the courts’ legitimacy to eliminate what the panel erroneously thought insinuations the judiciary would bear were constitutional concerns,” the Justice responsibility for future terrorist attacks. Department told the court. “In so doing, the President will clear the way for immediately “Just cannot believe a judge would put our protecting the country rather than pursuing country in such peril,” Trump tweeted at one further, potentially time-consuming point. “If something bad happens blame him litigation.” and court system.” It was a sterile, formalistic admission of The president echoed those themes during his defeat—at least for now—in a separation-of- lengthy Thursday press conference, in which powers standoff that had consumed most of he insisted his presidency was operating like

249 a “fine-tuned machine” and instead claimed on February 3 that temporarily barred the it was the Ninth Circuit that was actually federal government from enforcing the order adrift. “That circuit is in chaos, and frankly pending further hearings. that circuit is in turmoil,” Trump told Justice Department lawyers quickly sought reporters. He said he had heard the circuit an emergency stay of Robart’s order from a was overturned 80 percent of the time by the three-judge appeals panel in the Ninth Supreme Court—a highly misleading way to Circuit. The panel unanimously rejected that measure a court’s performance. (The request on February 9, ruling that the states Supreme Court, by design, reviews lower- of Washington and Minnesota, which filed court decisions for error or incongruity, not the lawsuit, had standing to challenge the general quality; it also accepts only a handful order on behalf of students and faculty in of the thousands of cases decided by the their public-university systems. Ninth Circuit each year.) The three judges also indicated the states’ The White House did not reveal its plans until contention that the order violated the its filing Thursday, as it spent a week Constitution’s due-process protections had a weighing whether it should continue to chance of success in the lower courts, defend the order in the courts or start anew. although it declined to rule on the merits of Neither of its options for appeal seemed those arguments itself. The panel also likely to succeed. The Trump administration declined to consider whether the order could have asked a broader panel of the Ninth violated the First Amendment’s religious- Circuit to reconsider the ruling, but two- freedom protections by targeting Muslim- thirds of the court’s judges were nominated majority countries. by Democratic presidents—not a definitive measure of a court’s ideology, but not a The federal government, for its part, strongly heartening one for a Republican president, defended the order’s legality and either. And if the administration asked the constitutionality since it was issued on U.S. Supreme Court to intervene, five votes January 27. Administration officials and from the eight justices would be needed to Justice Department lawyers pointed to the overturn the panel’s decision. Even if the four executive branch’s traditionally broad justices on the Court’s conservative wing discretion in immigration and national- sided with the administration, a fifth vote security matters, as well as a federal statute from its liberal wing could have been difficult authorizing the president to suspend the entry to find. of visa holders from certain countries. They also rejected the states’ claims of religious The Ninth Circuit case, Washington v. discrimination by noting the order didn’t Trump, is one of more than a dozen lawsuits mention explicitly mention Muslims. challenging the ban’s legality across the country. But it quickly became the highest But those arguments made little headway profile case after federal district judge James among the federal judiciary. Making the Robart issued a broad nationwide injunction president’s executive order unreviewable by

250 federal courts, the Ninth Circuit panel said, comments. The states’ invocation of them “runs contrary to the fundamental structure of was “profoundly misguided” because it could our constitutional democracy.” And in an impose additional judicial constraints on order-related lawsuit in Virginia, federal presidents for statements made as private judge Leonie Brinkema extensively cited citizens. “That approach, under which the Trump’s previous comments on Muslim powers of the Presidency would vary based immigration when issuing a preliminary on the identity of the individual duly elected injunction against the ban’s enforcement. by the people to hold that Office, has no sound basis in precedent and would raise The administration hasn’t offered details yet significant separation-of-powers concerns,” on its next executive order, which President they wrote. Trump said would be released sometime next week. But the Justice Department did But their warnings could be too late. As reiterate some arguments in its Thursday Vox’s Dara Lind noted last week, those filing that will likely resurface in the next comments could haunt the travel ban’s generation of legal battles over it. constitutionality in any iteration. The states cited Supreme Court religious-freedom Central to their brief was the president’s precedents in which government officials’ statutory power to exclude classes of foreign statements could be used as evidence of nationals from entry, which they cautioned discrimination when reviewing ostensibly against limiting. “Among other things, it neutral laws. And at least one federal judge would disable the President from suspending has shown a willingness to use those the entry of immigrants from a country with precedents against the Trump administration. which the United States is on the verge of war,” That provision’s scope went Many of the executive order’s flaws can be unaddressed by the Ninth Circuit panel’s ironed out with more thorough review by the ruling, even in passing. Justice Department. The president’s own words, however, could be a stain that may be But the most interesting portion of the filing impossible to wash away. dealt with something beyond the order itself. President Trump’s campaign comments on Muslim immigration shaped the public debate of the travel ban, even as he publicly downsized his call for a “total and complete shutdown of Muslims entering the United States” to the opaquer term “extreme vetting” and other euphemisms. The order makes no specific reference to Muslims, of course, but its genealogy is unmistakeable.

The Justice Department, however, urged the Ninth Circuit to look away from those

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“Travel ban 2.0 in effect, court challenges begin”

CNN Laura Jarrett, Elise Labott June 30, 2017

After months of winding through the courts, Yemen and Sudan, and 120 days if you are a the so-called "watered-down," revised refugee from any country. version of President Donald Trump's fiercely The new guidelines provide that applicants litigated travel ban finally went into effect at must prove a relationship with a parent, 8 p.m. ET Thursday. spouse, finacee, child, adult son or daughter, Less than an hour before the ban was slated son-in-law, daughter-in-law or sibling in the to begin, an emergency motion was filed in US in order to enter the country. federal court by the state of Hawaii, which Other family members -- including contests the Trump administration's plan to grandparents, grandchildren, aunts, uncles, exclude certain categories of foreign nieces, nephews, cousins, brothers-in-law, nationals that the state believes are allowed to sisters-in-law, and any other "extended" enter the country under existing court rulings. family members will not be considered "close Here's what to expect for the implementation family" under the executive order. of version 2.0 of the travel ban: For several hours on Thursday -- prior to the Who can't enter the US? executive order going into effect -- administration officials had provided The test for foreign nationals under the guidance that fiancees would not be Supreme Court's ruling is whether one has a considered "bona fide" relationships, but later "credible claim of bona fide relationship" reversed course, and fiancees are now exempt with either an entity (like a school or a job) or just like spouses. a person living in the US (such as a spouse). The State Department criteria applies not A hotel reservation, for example, will not only to visa applicants, but also to all constitute a bona fide relationship under the refugees currently awaiting approval for executive order, but an academic lecturer admission to the US. invited to speak in the US will be exempt from the travel ban. Senior administration officials further confirmed despite any ambiguity in the If you can't sufficiently establish such a close Supreme Court's decision, a refugee relationship, you are banned for 90 days if resettlement organization's "assurance" or you are from Libya, Syria, Iran, Somalia, relationship to a prospective refugee will not

252 be considered sufficiently close or bona fide The executive order also permits the issuance for protection under the administration's of a visa to anyone who would otherwise be interpretation of the revised executive order. excluded on a case-by-case basis at the discretion of DHS and the State Department. Advocacy groups such as Amnesty International plan to send researchers to US Senior administration officials expressed airports, such as Dulles International Airport confidence to reporters Thursday that the and John F. Kennedy Airport on Thursday, to pandemonium seen at airports would not monitor developments and observe occur this time around and that consular implementation of the ban in case any officers and border agents are "well-versed" disputes arise. in how the process works.

Who is exempt from the ban? "We expect business as usual," said one official. "We expect things to run smoothly - The following categories of travelers are - our people are well-prepared for this." excluded from the travel ban: Why is this happening? •US citizens The intent behind the executive order was •Legal permanent residents (aka hotly debated for the past several months. green card holders) On the campaign trail, then-candidate Trump •Current visa holders called for a "total and complete shutdown of •Any visa applicant who was in the Muslims" entering the US. US as of June 26 But the text of the executive order states that •Dual nationals "additional scrutiny" is required for foreign nationals traveling from the six identified •Anyone granted asylum nations because "the conditions in these •Any refugee already admitted to the countries present heightened threats. Each of US (or cleared for travel by the State these countries is a state sponsor of terrorism, Department through July 6) has been significantly compromised by terrorist organizations, or contains active •Foreign nationals with "bona fide" conflict zones." family, educational or business tie to the US. More lawsuits on the way?

What about visa holders? The Trump administration's narrow reading of what constitutes a "bona fide" relationship Importantly, visas that have already been has already elicited at least one challenge in approved will not be revoked, and senior court. administration officials confirmed on Thursday that previously scheduled visa Late Thursday, Hawaii filed an emergency application appointments will not be motion asking the federal district court judge canceled. who originally blocked implementation of

253 the travel ban in March to "clarify as soon as possible that the Supreme Court meant what it said," and issue an order confirming that the court orders do not allow the Trump administration to exclude grandparents, grandchildren, brothers-in-law, sisters-in- law, aunts, uncles, nieces, nephews and cousins of persons in the United States. Experts say more legal battles are on the way, given the way the Trump administration has decided to interpret the Supreme Court's ruling. "I predict more litigation as people challenge visa denials under these new instructions," said Cornell Law School Professor Stephen Yale-Loehr. "Why can a stepsister visit the United States but not a grandmother?"

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“Trump’s big travel ban win? Let’s not get carried away.”

The Washington Post Aaron Blake June 26, 2017

Winning in politics is as much about beating 1) This wouldn't really be seen as a “win” expectations as anything else. Democrats' unless other judges hadn't halted the ban in loss in the special election in a conservative the first place. If the lower courts had upheld Georgia district wasn't particularly the ban and this had been appealed to the devastating in and of itself, but the fact that Supreme Court by the other side, the they really went for it made it look like a narrative today would be that the Supreme massive failure, with nothing but doom and Court just put part of Trump's travel ban on gloom ahead. hold. It's also not altogether surprising that the more left-leaning 9th Circuit Court of With that in mind, I present the White Appeals would go further in halting the ban House's gloating after the Supreme Court than the Supreme Court would. And the sum partially reinstated its travel ban on Monday. total is still that part of Trump's ban remains “It’s a huge win for the president and the blocked, with no ruling on the overall executive order,” Trump's lawyer, Jay constitutionality and the possibility that it Sekulow, said on Fox Business Network gets partially struck down for good. shortly after the ruling. 2) We are simply talking about whether Some conservative writers also hailed this as Trump overstepped his constitutional bounds a win for Trump. David French of the (not with the travel ban executive order — a very exactly Trump-friendly) National Review low bar — and not whether the broader policy wrote: “Victory for Trump: SCOTUS is successful or popular. And in fact, a recent Restores Vast Majority of Travel Ban.” poll showed Americans oppose the ban 52- 43. This is what you might call the soft bigotry of low expectations. Yes, the Supreme Court 3) The degree to which the ban is being allowed for part of the White House's travel reinstated is in the eye of the beholder. ban to go into effect after some judges had Basically, the court says the ban “may not be put the whole thing on hold. But if this is enforced against foreign nationals who have what passes for a big Trump win, it's going to a credible claim of a bona fide relationship be a long four years for him. with a person or entity in the United States.” This is who actually sued over the ban in the For a few reasons: first place, and they remain exempt from it, for now.

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4) This is the revised, scaled-back version of For a president who said we'd grow tired of Trump's initial travel ban, which was also winning with him, to claim this as a big halted by the courts. And just a few weeks victory is pretty telling. ago, Trump didn't seem to be a big fan of

Version 2.0, tweeting, “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.” We are now to believe that a ban Trump suggested was inadequate and “watered down” is some big victory for his agenda?

5) As The Fix's Amber Phillips notes, the whole purpose of the ban is now in doubt. The White House initially pitched this as temporary travel ban needed to address an urgent national security concern while it developed more foolproof vetting procedures. It said it needed 90 days to do that (120 days for refugees); it's now been 150 days since the first attempt at a travel ban and 102 since the second (with no attacks by immigrants or refugees), but apparently the ban is still necessary? Even in their ruling, the judges seemed to allude to the idea that their input might be moot because that window had passed. Here's what the justices wrote:

In addition to the issues identified in the petitions, the parties are directed to address the following question: “Whether the challenges to §2(c) became moot on June 14,

2017.”

Monday's ruling is a win for Trump only insofar as it wasn't another big setback — something he's become accustomed to both legislatively and in the courts. But this is a temporary ruling that is still blocking part of a signature executive order that Trump apparently isn't a huge fan of in the first place.

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“Court hands each side a partial victory in dispute over scope of travel ban”

SCOTUSblog Amy Howe July 19, 2017

On the same day that it scheduled oral refugees who have a “credible claim” of a argument in the dispute over President genuine relationship with an individual or Donald Trump’s March 6 executive order, institution in the United States. the Supreme Court turned down a request by The Court’s June 26 order led to litigation the federal government to clarify exactly over the scope of the exception. The Trump what it meant when it said that individuals administration insisted that it extended to with a close family relationship could parents (and stepparents), spouses (and continue to apply for visas to enter the United fiancés or fiancées), sons and daughters (as States even while the freeze on new visas for well as stepchildren and sons- and daughters- travelers from six predominantly Muslim in-law), and siblings, but not to a broader countries is in place. Today’s order left in group of relatives such as grandparents, place a ruling by a federal district judge in grandchildren, aunts and uncles, siblings-in- Hawaii that had defined the relationships law, nieces and nephews, and cousins. But more expansively than the government had U.S. District Judge Derrick Watson agreed wanted – to include, among others, with the state of Hawaii that the second and grandparents and grandchildren. But the broader group of relatives also have the kind justices also put a portion of that lower-court of “close” family relationship that should ruling relating to refugees on hold while an allow them to apply for visas even while the intermediate federal appeals court reviews it. travel ban is in effect. The justices today The president’s March 6 order, often known denied the federal government’s motion to as the “travel ban,” halted the issuance of new clarify which relatives can apply for a visa, visas for travelers from six predominantly leaving Judge Watson’s more expansive Muslim countries – Iran, Libya, Sudan, Syria, definition in place. Somalia and Yemen – and temporarily However, the justices did grant the suspended the admission of refugees into the government’s request to put another portion United States. Two different lower courts of Judge Watson’s ruling on hold while the blocked the government from implementing government goes to the U.S. Court of the order, but on June 26 the Supreme Court Appeals for the 9th Circuit. Judge Watson allowed the government to go ahead and had ruled that, for purposes of the June 26 enforce it, with an exception for travelers and

257 order, the freeze on the admission of refugees would not apply to refugees for whom the federal government had already entered into an agreement with an agency to help the refugees with resettlement after they enter the United States. The government had argued that the judge’s ruling went too far, because a resettlement agency does not actually have a relationship with the refugees it is assisting until they arrive in the United States, and that the ruling effectively rendered the limits imposed by the March 6 order meaningless. Now the 9th Circuit will weigh in on whether such refugees have enough of a connection to the United States to come here. Notably, three justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have put all of Judge Watson’s ruling (rather than simply the part involving refugees) on hold until the 9th Circuit can rule on the government’s appeal.

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Jennings v. Rodriguez 15-1204 Ruling Below: Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) Rodriguez sought relief on behalf of himself and others detained for more than six months without bond hearing during immigration proceedings. The requested relief constituted individualized bond hearings with burden on government. The district court denied the petition. Rodriguez appealed. The Court of Appeals reversed and remanded. On remand, the district court, entered preliminary injunction. The government appealed. The Court of Appeals affirmed. The District Court granted summary judgment to class and entered permanent injunction. Parties appealed. The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. Question Presented: Whether aliens subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings if detention lasts six months; Whether aliens who fall under the mandatory detention provisions of Section 1226(c) must be afforded the same; Whether the government must demonstrate that the alien is a flight risk or a danger to the community in order to deny release on bond; Whether the length of detention must be weighed in the decision to release on bond; Whether new bond hearings must be afforded every six months.

Alejandro RODRIGUEZ; Abdirizak Aden Farah; Jose Farias Cornejo; Yussuf Abdikadir; Abel Perez Ruelas, for themselves and on behalf of a class of similarly situated individuals, Petitioners–Appellees/Cross–Appellants, and Efren Orozco, Petitioner, v. Timothy ROBBINS, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; Jeh Johnson, Secretary, Homeland Security; Loretta E. Lynch, Attorney General; Wesley Lee, Assistant Field Office Director, Immigration and Customs Enforcement; Rodney Penner, Captain, Mira Loma Detention Center; Sandra Hutchens, Sheriff of Orange County; Nguyen, Officer, Officer–in–Charge, Theo Lacy Facility; Davis Nighswonger, Captain, Commander, Theo Lacy Facility; Mike Kreuger, Captain, Operations Manager, James A. Musick Facility; Arthur Edwards, Officer–in–Charge, Santa Ana City Jail; Russell Davis, Jail Administrator, Santa Ana City Jail; Juan P. Osuna,* Director, Executive Office for Immigration Review, Respondents– Appellants/Cross–Appellees.

United States Court of Appeals, Ninth Circuit

Decided on October 28, 2015

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[Excerpt; some citations and footnotes omitted]

Duane WARDLAW, Circuit Judge: the government must prove by clear and convincing evidence that the detainee is a This is the latest decision in our decade-long flight risk or a danger to the community to examination of civil, i.e. non-punitive and justify the denial of bond. The government merely preventative, detention in the appeals from that judgment. We affirm in immigration context. As we noted in our part and reverse in part. prior decision in this case, Rodriguez v. Robbins, thousands of immigrants to the I. Background United States are locked up at any given time, awaiting the conclusion of administrative and On May 16, 2007, Alejandro Garcia judicial proceedings that will determine commenced this case by filing a petition for whether they may remain in this country. In a writ of habeas corpus in the Central District 2014, U.S. Immigration and Customs of California. Garcia's case was consolidated Enforcement (“ICE”) removed 315,943 with a similar case filed by Alejandro individuals, many of whom were detained Rodriguez, and the petitioners moved for during the removal process. According to the class certification. The motion was denied on most recently available statistics, ICE detains March 21, 2008. more than 429,000 individuals over the course of a year, with roughly 33,000 A three-judge panel of our court reversed the individuals in detention on any given day. district court's order denying class certification. We held that the proposed class Alejandro Rodriguez, Abdirizak Aden Farah, satisfied each requirement of Federal Rule of Jose Farias Cornejo, Yussuf Abdikadir, Abel Civil Procedure 23: The government Perez Ruelas, and Efren Orozco conceded that the class was sufficiently (“petitioners”) represent a certified class of numerous; each class member's claim turned noncitizens who challenge their prolonged on the common question of whether detention pursuant to 8 U.S.C. §§ 1225(b), detention for more than six months without a 1226(a), 1226(c), and 1231(a) without bond hearing raises serious constitutional individualized bond hearings and concerns; Rodriguez's claims were determinations to justify their continued sufficiently typical of the class's because “the detention. Their case is now on appeal for the determination of whether [he] is entitled to a third time. After a three-judge panel of our bond hearing will rest largely on court reversed the district court's denial of interpretation of the statute authorizing his petitioners' motion for class certification, and detention”; and Rodriguez, through his after our decision affirming the district counsel, adequately represented the class. court's entry of a preliminary injunction, the The panel also noted that “any concern that district court granted summary judgment to the differing statutes authorizing detention of the class and entered a permanent injunction. the various class members will render class adjudication of class members' claims Under the permanent injunction, the impractical or undermine effective government must provide any class member representation of the class” could be who is subject to “prolonged detention”—six addressed through “the formation of months or more—with a bond hearing before subclasses.” an Immigration Judge (“IJ”). At that hearing,

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The government petitioned our court for statutes”— §§ 1225(b) and 1226(c). Under panel rehearing or rehearing en banc. In the preliminary injunction, the government response, the panel amended the opinion to was required to “provide each [detainee] with expand its explanation of why the Illegal a bond hearing” before an IJ and to “release Immigration Reform and Immigrant each Subclass member on reasonable Responsibility Act (“IIRIRA”) does not bar conditions of supervision ... unless the certification of the class and, with that government shows by clear and convincing amendment, unanimously voted to deny the evidence that continued detention is justified government's petition. The full court was based on his or her danger to the community advised of the suggestion for rehearing en or risk of flight.” banc, and no judge requested a vote on whether to rehear the matter. The government The government appealed, and on April 16, did not file a petition for certiorari in the 2013, we affirmed. We applied the Court's United States Supreme Court. preliminary injunction standard set forth in Winter v. Natural Resources Defense On remand, the district court certified a class Council, Inc., which requires the petitioner to defined as: “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable “…all non-citizens within the Central harm in the absence of preliminary relief, that District of California who: (1) are or were the balance of equities tips in his favor, and detained for longer than six months pursuant that an injunction is in the public interest.” to one of the general immigration detention statutes pending completion of removal Evaluating petitioners' likelihood of success proceedings, including judicial review, (2) on the merits, we began with the premise that are not and have not been detained pursuant “[f]reedom from imprisonment—from to a national security detention statute, and government custody, detention, or other (3) have not been afforded a hearing to forms of physical restraint—lies at the heart determine whether their detention is of the liberty that [the Due Process] Clause justified.” protects.” “Thus, the Supreme Court has held that the indefinite detention of a once- The district court also approved the proposed admitted alien ‘would raise serious subclasses, which correspond to the four constitutional concerns.’ ” statutes under which the class members are detained—8 U.S.C. §§ 1225(b), 1226(a), Addressing those concerns, we recognized 1226(c), and 1231(a). The class does not that we were not writing on a clean slate: include suspected terrorists, who are detained “[I]n a series of decisions since 2001, ‘the pursuant to 8 U.S.C. § 1537. Additionally, Supreme Court and this court have grappled because the class is defined as non-citizens in piece-meal fashion with whether the who are detained “pending completion of various immigration detention statutes may removal proceedings,” it excludes any authorize indefinite or prolonged detention of detainee subject to a final order of removal. detainees and, if so, may do so without providing a bond hearing.’ ” First, in On September 13, 2012, the district court Zadvydas v. Davis, the Supreme Court entered a preliminary injunction that applied resolved statutory and due process challenges to class members detained pursuant to two of to indefinite detention under 8 U.S.C. § these four “general immigration detention 1231(a)(6), which governs detention beyond

261 the ninety-day removal period, where removable and inadmissible aliens are removal was not practicable—for one entitled to be free from detention that is petitioner because he was stateless, and for arbitrary or capricious.” Justice Kennedy another because his home country had no further noted that although the government repatriation treaty with the United States. may detain non-citizens “when necessary to avoid the risk of flight or danger to the Drawing on civil commitment jurisprudence, community,” due process requires “adequate the Court reasoned: procedures to review their cases, allowing persons once subject to detention to show that A statute permitting indefinite detention of an through rehabilitation, new appreciation of alien would raise a serious constitutional their responsibilities, or under *1068 other problem. The Fifth Amendment's Due standards, they no longer present special risks Process Clause forbids the Government to or danger if put at large.” “depriv[e]” any “person ... of ... liberty ... without due process of law.” Freedom from Second, in Demore v. Kim, the Court imprisonment—from government custody, addressed a due process challenge to detention, or other forms of physical mandatory detention under 8 U.S.C. § restraint—lies at the heart of the liberty that 1226(c), which applies to non-citizens Clause protects. And this Court has said that convicted of certain crimes. After discussing government detention violates that Clause Congress's reasons for establishing unless the detention is ordered in a criminal mandatory detention, namely, high rates of proceeding with adequate procedural crime and flight by removable non-citizens, protections, or, in certain special and the Court affirmed its “longstanding view “narrow” nonpunitive “circumstances,” that the Government may constitutionally where a special justification, such as harm- detain deportable aliens during the limited threatening mental illness, outweighs the period necessary for their removal “individual's constitutionally protected proceedings.” Distinguishing Zadvydas, the interest in avoiding physical restraint.” To Court in Demore stressed that detention avoid those “serious constitutional under § 1226(c) has “a definite termination concerns,” the Court held that § 1231(a)(6) point” and typically “lasts for less than the 90 does not authorize indefinite detention days we considered presumptively valid in without a bond hearing. Noting that the Zadvydas.” Although the Court therefore “proceedings at issue here are civil, not upheld mandatory detention under § 1226(c), criminal,” the Court “construe[d] the statute Justice Kennedy's concurring opinion, which to contain an implicit ‘reasonable time’ created the majority, reasoned that “a lawful limitation,” and recognized six months as a permanent resident alien such as respondent “presumptively reasonable period of could be entitled to an individualized detention.” determination as to his risk of flight and dangerousness if the continued detention Although in dissent, Justice Kennedy, joined became unreasonable or unjustified.” by Chief Justice Rehnquist, disagreed with the majority's application of the canon of After Zadvydas and Demore, our court constitutional avoidance and argued that the decided several cases that provided further holding would improperly interfere with guidance for our analysis in Rodriguez II. In international repatriation negotiations, Tijani v. Willis, we held that the Justice Kennedy recognized that “both constitutionality of detaining a lawful

262 permanent resident under § 1226(c) for over under § 1226(c), we concluded that “the 32 months was “doubtful.” “To avoid government may not detain a legal permanent deciding the constitutional issue, we resident such as Casas for a prolonged period interpret[ed] the authority conferred by § without providing him a neutral forum in 1226(c) as applying to expedited removal of which to contest the necessity of his criminal aliens” and held that “[t]wo years continued detention.” and eight months of process is not expeditious.” We therefore remanded Tijani's Soon after, in Singh v. Holder, we clarified habeas petition to the district court with the procedural requirements for bond directions to grant the writ unless the hearings held pursuant to our decision in government provided a bond hearing before Casas (“Casas hearings”). In light of “the an IJ within sixty days. substantial liberty interest at stake,” we held that “due process requires a We next considered civil detention in the contemporaneous record of Casas hearings,” immigration context in Casas–Castrillon v. and that the government bears the burden of Department of Homeland Security (Casas ). proving “by clear and convincing evidence There, a lawful permanent resident who had that an alien is a flight risk or a danger to the been detained for nearly seven years under § community to justify denial of bond.” To 1226(c) and then § 1226(a) sought habeas evaluate whether the government has met its relief while his petition for review of his burden, we instructed IJs to consider the removal order was pending before our court. factors set forth in In re Guerra, in particular Applying Demore, we reasoned that § “the alien's criminal record, including the 1226(c) “authorize [s] mandatory detention extensiveness of criminal activity, the only for the ‘limited period of [the non- recency of such activity, and the seriousness citizen's] removal proceedings,’ which the of the offenses.” Court estimated ‘lasts roughly a month and a half in the vast majority of cases in which it Finally, in Diouf v. Napolitano, we extended is invoked, and about five months in the the procedural protections established in minority of cases in which the alien chooses Casas to individuals detained under § to appeal’ his removal order to the [Board of 1231(a)(6). We held that “prolonged Immigration Appeals (“BIA”) ].” We detention under § 1231(a)(6), without therefore concluded that § 1226(c)'s adequate procedural protections,” like mandatory detention provision applies only prolonged detention under § 1226(a), “would during administrative removal raise ‘serious constitutional concerns.’ ” To proceedings—i.e. until the BIA affirms a address those concerns, we held that “an alien removal order. From that point until the facing prolonged detention under § circuit court has “rejected [the applicant's] 1231(a)(6) is entitled to a bond hearing final petition for review or his time to seek before an immigration judge and is entitled to such review expires,” the government has be released from detention unless the discretionary authority to detain the non- government establishes that the alien poses a citizen pursuant to § 1226(a). We noted, risk of flight or a danger to the community.” however, that “[t]here is a difference between detention being authorized and being In Diouf II, we also adopted a definition of necessary as to any particular person.” “prolonged” detention—detention that “has Because the Court's holding in Demore lasted six months and is expected to continue turned on the brevity of mandatory detention more than minimally beyond six months”—

263 for purposes of administering the Casas bond found that this argument reflected “a hearing requirement. We reasoned that: distinction without a difference”: “ ‘Regardless of the stage of the proceedings, “When detention crosses the six-month the same important interest is at stake— threshold and release or removal is not freedom from prolonged detention.’ ” imminent, the private interests at stake are profound. Furthermore, the risk of an We also noted that our conclusion was erroneous deprivation of liberty in the consistent with the decisions of the two other absence of a hearing before a neutral circuits that have directly addressed this decisionmaker is substantial. The burden issue. In Diop v. ICE/Homeland Security, the imposed on the government by requiring Third Circuit, applying the canon of hearings before an immigration judge at this constitutional avoidance, construed § 1226(c) stage of the proceedings is therefore a to “authorize [ ] detention for a reasonable reasonable one.” amount of time, after which the authorities must make an individualized inquiry into Applying these precedents to Rodriguez class whether detention is still necessary to fulfill members detained under § 1226(c), which the statute's purposes of ensuring that an alien requires civil detention of non-citizens attends removal proceedings and that his previously convicted of certain crimes who release will not pose a danger to the have already served their state or federal community.” Applying that holding to the periods of incarceration, we have concluded facts of the case, the Third Circuit held that that “the prolonged detention of an alien the petitioner's detention, which had lasted without an individualized determination of nearly three years, “was unconstitutionally his dangerousness or flight risk would be unreasonable and, therefore, a violation of constitutionally doubtful.” To avoid these the Due Process Clause.” Although the court constitutional concerns, we held that “ § declined to adopt a categorical definition of a 1226(c)'s mandatory language must be “reasonable amount of time” to detain a non- construed ‘to contain an implicit reasonable citizen without a bond hearing, it read time limitation, the application of which is Demore as we do—to connect the subject to federal-court review.’ ” “[W]hen constitutionality of detention to its length and detention becomes prolonged,” i.e., at the to authorize detention only for a “limited six-month mark, “ § 1226(c) becomes time.” inapplicable”; the government's authority to detain the non-citizen shifts to § 1226(a), Likewise, in Ly v. Hansen, the Sixth Circuit which provides for discretionary detention; held that, to avoid a constitutional problem, and detainees are then entitled to bond removable non-citizens may be detained hearings. under § 1226(c) only “for a reasonable period of time required to initiate and conclude In so holding, we rejected the government's removal proceedings promptly.” Finding that attempt to distinguish Casas on the basis that the petitioner's 500–day–long detention was “Casas concerned an alien who had received “unreasonable,” the Sixth Circuit affirmed an administratively final removal order, the district court's grant of a writ of habeas sought judicial review, and obtained a corpus. While maintaining that a “bright-line remand to the BIA,” whereas this case time limitation, as imposed in Zadvydas, involves “aliens awaiting the conclusion of would not be appropriate for the pre-removal their initial administrative proceedings.” We period,” the court recognized that Demore's

264 holding “rel[ies] on the fact that Kim, and injunction” because “the deprivation of persons like him, will normally have their constitutional rights unquestionably proceedings completed within a short period constitutes irreparable injury.” The of time and will actually be deported, or will preliminary injunction safeguards be released.” constitutional rights by ensuring that “individuals whom the government cannot As to the Rodriguez subclass detained under prove constitute a flight risk or a danger to § 1225(b), we found “no basis for public safety, and sometimes will not succeed distinguishing between” non-citizens in removing at all, are not needlessly detained under that section and under § detained.” Similarly, we found that the 1226(c). The cases relied upon by the balance of equities favored the class government for the proposition that arriving members because “needless prolonged aliens are entitled to lesser due process detention” imposes “major hardship,” protections—namely, Shaughnessy v. United whereas the government “cannot suffer harm States ex rel. Mezei and Barrera–Echavarria from an injunction that merely ends an v. Rison—were decided under pre-IIRIRA unlawful practice or reads a statute as law and, as such, were inapposite. We required to avoid constitutional concerns.” therefore held that “to the extent detention Finally, we held that the preliminary under § 1225(b) is mandatory, it is implicitly injunction was consistent with the public time-limited.” As we had with § 1226(c), we interest, which is “implicated when a explained that “the government's detention constitutional right has been violated,” and authority does not completely dissipate at six “benefits from a preliminary injunction that months; rather, the mandatory provisions of ensures that federal statutes are construed and § 1225(b) simply expire at six months, at implemented in a manner that avoids serious which point the government's authority to constitutional questions.” We therefore detain the non-citizen would shift to § affirmed the district court's order. 1226(a), which is discretionary and which we have already held requires a bond hearing.” During the pendency of Rodriguez II, the parties conducted discovery, and class After establishing that class members counsel adduced extensive evidence detailing detained under § 1226(c) and § 1225(b) are the circumstances under which class entitled to bond hearings after six months of members are detained. The parties then filed detention, we clarified that the procedural cross-motions for summary judgment, and requirements set forth in Singh apply to those the petitioners moved for a permanent hearings. These requirements include injunction to extend and expand the proceedings before “a neutral IJ” at which preliminary injunction. “the government bear[s] the burden of proof by clear and convincing evidence,” a lower On August 6, 2013, after we issued our burden of proof than that required to sustain decision in Rodriguez II, the district court a criminal charge. granted summary judgment to the class members and entered a permanent injunction. Having found that the class was likely to The permanent injunction applies to class succeed on the merits, we turned to the other members detained under any of the four civil preliminary injunction factors. We found that “general immigration detention statutes”— the class members “clearly face irreparable §§ 1225(b), 1226(a), 1226(c), and 1231(a)— harm in the absence of the preliminary and requires the government to provide each

265 detainee with a bond hearing by his 195th day or more months receive periodic bond of detention. Applying our decisions in hearings every six months. Casas, Singh, and Rodriguez II, the district court further ordered that bond hearings II. Nature of Civil Immigration Detention occur automatically, that detainees receive “comprehendible notice,” that the Class members spend, on average, 404 days government bear the burden of proving “by in immigration detention. Nearly half are clear and convincing evidence that a detainee detained for more than one year, one in five is a flight risk or a danger to the community for more than eighteen months, and one in ten to justify the denial of bond,” and that for more than two years. In some cases, hearings are recorded. However, the district detention has lasted much longer: As of April court declined to order IJs to consider the 28, 2012, when the government generated length of detention or the likelihood of data to produce to the petitioners, one class removal during bond hearings, or to provide member had been detained for 1,585 days, periodic hearings for detainees who are not approaching four and a half years of civil released after their first hearing. confinement.

The government now appeals from the entry Non-citizens who vigorously pursue claims of the permanent injunction, arguing that the for relief from removal face substantially district court—and we—erred in applying the longer detention periods than those who canon of constitutional avoidance to each of concede removability. Requesting relief from the statutes at issue. Relying on the Supreme an IJ increases the duration of class members' Court's decisions in Zadvydas and Demore, detention by an average of two months; the government argues that none of the appealing a claim to the BIA adds, on subclasses are categorically entitled to bond average, another four months; and appealing hearings after six months of detention. a BIA decision to the Ninth Circuit typically Accordingly, the government contends that leads to an additional eleven months of we should decertify the class and instead confinement. Class members who persevere permit as-applied challenges to individual through this lengthy process are often instances of prolonged detention, which successful: About 71% of class members could occur only through habeas have sought relief from removal, and roughly proceedings. Petitioners counter that one-third of those individuals prevailed. Rodriguez II is the law of the case and law of However, many detainees choose to give up the circuit, requiring us to affirm the meritorious claims and voluntarily leave the permanent injunction as to the § 1225(b) and country instead of enduring years of § 1226(c) subclasses, and that non-citizens immigration detention awaiting a judicial detained pursuant to § 1226(a) and § 1231(a) finding of their lawful status. are entitled to bond hearings for reasons similar to those discussed in Rodriguez II. Class members frequently have strong ties to Petitioners cross-appeal the district court's this country: Many immigrated to the United order as to the procedural requirements for States as children, obtained legal permanent bond hearings; they argue that the district resident status, and lived in this country for court erred in declining to require that IJs as long as twenty years before ICE initiated consider the likelihood of removal and the removal proceedings. As a result, hundreds total length of detention, and in declining to of class members are married to U.S. citizens require that non-citizens detained for twelve or lawful permanent residents, and have

266 children who were born in this country. young children—also resides in the United Further, many class members hold steady States as citizens or lawful permanent jobs—including as electricians, auto residents. Before his removal proceedings mechanics, and roofers—to provide for began, Rodriguez worked as a dental themselves and their families. At home, they assistant. In 2003, however, Rodriguez was are caregivers for young children, aging convicted of possession of a controlled parents, and sick or disabled relatives. To the substance and sentenced to five years of extent class members have any criminal probation and no jail time. He had one record—and many have no criminal history previous conviction, for “joyriding.” whatsoever—it is often limited to minor controlled substances offenses. Accordingly, In 2004, ICE commenced removal when class members do receive bond proceedings and subjected Rodriguez to civil hearings, they often produce glowing letters detention. An IJ determined that Rodriguez's of support from relatives, friends, employers, prior conviction for “joyriding,” i.e. driving a and clergy attesting to their character and stolen vehicle, qualified as an “aggravated contributions to their communities. felony” that rendered him ineligible for relief in the form of cancellation of removal, and Prolonged detention imposes severe hardship therefore ordered him removed. Rodriguez on class members and their families. Civil appealed the IJ's decision to the BIA, which immigration detainees are treated much like affirmed, and then to the Ninth Circuit. In criminals serving time: They are typically July 2005, a three-judge panel of our court housed in shared jail cells with no privacy granted the government's motion to hold and limited access to larger spaces or the Rodriguez's case in abeyance until the outdoors. Confinement makes it more Supreme Court decided a related case, difficult to retain or meet with legal counsel, Gonzales v. Penuliar, which issued eighteen and the resources in detention facility law months later, in January 2007. In Penuliar, libraries are minimal at best, thereby the Supreme Court vacated our court's compounding the challenges of navigating opinion and remanded for further the complexities of immigration law and consideration in light of Gonzales v. Duenas– proceedings. In addition, visitation is Alvarez, which held that violating a restricted and is often no-contact, California statute prohibiting taking a vehicle dramatically disrupting family relationships. without the owner's consent qualifies as a While in detention, class members have “theft offense.” Between July 2005 and missed their children's births and their January 2007, while Rodriguez's case was in parents' funerals. After losing a vital source abeyance, ICE conducted four custody of income, class members' spouses have reviews on Rodriguez and repeatedly sought government assistance, and their determined that Rodriguez was required to children have dropped out of college. remain in detention until our court issued a decision on the merits of his claim. In mid– Lead petitioner Alejandro Rodriguez's story 2007, about a month after Rodriguez had is illustrative. Rodriguez came to the United moved for class certification, however, ICE States as an infant and has lived here released him. At that point, Rodriguez had continuously since then. Rodriguez is a been detained for 1,189 days, roughly three lawful permanent resident of the United years and three months. In April 2008, in the States, and his entire immediate family— related case on remand from the Supreme including his parents, siblings, and three Court, our court held that driving a stolen

267 vehicle did not qualify as an aggravated for class members detained for more than felony. On motion of the parties, we then twelve months. However, we reject the remanded Rodriguez's petition to the BIA, class's suggestion that we mandate additional which granted his application for cancellation procedural requirements. of removal, vindicating his right to lawfully remain in the United States. A. Civil Detention

III. Standard of Review “In our society liberty is the norm, and detention prior to trial or without trial is the “We review a grant of summary judgment de carefully limited exception.” Civil detention novo.” “A permanent injunction ‘involves violates the Due Process Clause except “in factual, legal, and discretionary components,’ certain special and narrow nonpunitive so we ‘review a decision to grant such relief circumstances, where a special justification, under several different standards.’” “We such as harm-threatening mental illness, review legal conclusions ... de novo, factual outweighs the individual's constitutionally findings for clear error, and the scope of the protected interest in avoiding physical injunction for abuse of discretion.” restraint.” Consistent with these principles, the Supreme Court has—outside of the IV. Discussion immigration context—found civil detention constitutional without any individualized In resolving whether the district court erred showing of need only when faced with the in entering the permanent injunction, we unique exigencies of global war or domestic consider, first, petitioners' entitlement to insurrection. And even in those extreme bond hearings and, second, the procedural circumstances, the Court's decisions have requirements for such hearings. Based on our been widely criticized. In all contexts apart precedents, we hold that the canon of from immigration and military detention, the constitutional avoidance requires us to Court has found that the Constitution requires construe the statutory scheme to provide all some individualized process and a judicial or class members who are in prolonged administrative finding that a legitimate detention with bond hearings at which the governmental interest justifies detention of government bears the burden of proving by the person in question. clear and convincing evidence that the class member is a danger to the community or a For example, in numerous cases addressing flight risk. However, we also conclude that the civil detention of mentally ill persons, the individuals detained under § 1231(a) are not Court has consistently recognized that such members of the certified class. We affirm the commitment “constitutes a significant district court's order insofar as it requires deprivation of liberty,” and so the state “must automatic bond hearings and requires IJs to have a constitutionally adequate purpose for consider alternatives to detention because we the confinement.” Further, the “nature and presume, like the district court, that IJs are duration of commitment” must “bear some already doing so when determining whether reasonable relation to the purpose for which to release a non-citizen on bond.5 Because the individual is committed.” the same constitutional concerns arise when detention approaches another prolonged Accordingly, the state may detain a criminal period, we hold that IJs must provide bond defendant found incapable of standing trial, hearings periodically at six month intervals but only for “the reasonable period of time

268 necessary to determine whether there is a sanctions do not serve their purpose of substantial probability that he will attain [the] coercing compliance and therefore violate the capacity [to stand trial] in the foreseeable Due Process Clause. future.” At all times, the individual's “commitment must be justified by progress Early cases upholding immigration detention toward that goal.” Likewise, the state may policies were a product of their time. Yet detain a criminal defendant following an even these cases recognized some limits on acquittal by reason of insanity in order to detention of non-citizens pending removal. “treat the individual's mental illness and Such detention may not be punitive— protect him and society from his potential Congress may not, for example, impose dangerousness.” However, the detainee “is sentences of “imprisonment at hard labor” on entitled to release when he has recovered his non-citizens awaiting deportation—and it sanity or is no longer dangerous.” Further, must be supported by a legitimate regulatory although the state may detain sexually purpose. Under these principles, the Court dangerous individuals even after they have authorized the “detention or temporary completed their criminal sentences, such confinement” of Chinese-born non-citizens confinement must “take[ ] place pursuant to “pending the inquiry into their true character, proper procedures and evidentiary and while arrangements were being made for standards.” To “justify indefinite involuntary their deportation.” The Court also upheld commitment,” the state must prove both executive detention of enemy aliens after the “dangerousness” and “some additional cessation of active hostilities because factor, such as a ‘mental illness' or ‘mental deportation is “hardly practicable” in the abnormality.’ ” midst of war, and enemy aliens' “potency for mischief” continues “even when the guns are Similarly, the Court has held that pretrial silent.” Similarly, the Court approved detention of individuals charged with “the detention of communists to limit their most serious of crimes” is constitutional only “opportunities to hurt the United States because, under the Bail Reform Act, an during the pendency of deportation “arrestee is entitled to a prompt detention proceedings.” The Court recognized, hearing” to determine whether his however, that “purpose to injure could not be confinement is necessary to prevent danger to imputed generally to all aliens subject to the community. Further, “the maximum deportation.” Rather, if the Attorney General length of pretrial detention is limited by the wished to exercise his discretion to deny bail, stringent time limitations of the Speedy Trial he was required to do so at a hearing, the Act.” results of which were subject to judicial review. In addition, the Court has held that incarceration of individuals held in civil More recently, the Supreme Court has drawn contempt is consistent with due process only on decades of civil detention jurisprudence to where the contemnor receives adequate hold that “[a] statute permitting indefinite procedural protections and the court makes detention of an alien would raise a serious specific findings as to the individual's ability constitutional problem.” Although the state to comply with the court order. If compliance has legitimate interests in “ensuring the is impossible—for instance, if the individual appearance of aliens at future immigration lacks the financial resources to pay court- proceedings” and “protecting the ordered child support—then contempt community,” post-removal period detention

269 does not uniformly “ ‘bear[ ] [a] reasonable “between detention being authorized and relation to the purpose for which the being necessary as to any particular person.” individual [was] committed.’ ” To avoid Bond hearings do not restrict the constitutional concerns, the Court construed government's legitimate authority to detain 8 U.S.C. § 1231(a)(6), the statute governing inadmissible or deportable non-citizens; post—removal period detention, to “limit[ ] rather, they merely require the government to an alien's post-removal-period detention to a “justify denial of bond” with clear and period reasonably necessary to bring about convincing “evidence that an alien is a flight that alien's removal from the United States.” risk or danger to the community.” And, in the Detention beyond that point requires “strong end, the government is required only to procedural protections” and a finding that the establish that it has a legitimate interest non-citizen is “specially dangerous.” reasonably related to continued detention; the discretion to release a non-citizen on bond or Soon after Zadvydas, the Court rejected a due other conditions remains soundly in the process challenge to mandatory detention judgment of the immigration judges the under 8 U.S.C. § 1226(c), which applies to Department of Justice employs. non-citizens convicted of certain crimes. While affirming its “longstanding view that Prior decisions have also clarified that the Government may constitutionally detain detention becomes “prolonged” at the six- deportable aliens during the limited period month mark. In Zadvydas, the Supreme Court necessary for their removal proceedings,” the recognized six months as a “presumptively Court emphasized that detention under § reasonable period of detention.” By way of 1226(c) was constitutionally permissible background, the Court noted that in 1996, because it has “a definite termination point” Congress had “shorten[ed] the removal and typically “lasts for less than ... 90 days.” period from six months to 90 days.” The Court then explained: Since Zadvydas and Demore, our court has “grappled in piece-meal fashion with whether While an argument can be made for the various immigration detention statutes confining any presumption to 90 days, we may authorize indefinite or prolonged doubt that when Congress shortened the detention of detainees and, if so, may do so removal period to 90 days in 1996 it believed without providing a bond hearing.” As we that all reasonably foreseeable removals recognized in Casas, “prolonged detention could be accomplished in that time. We do without adequate procedural protections have reason to believe, however, that would raise serious constitutional concerns.” Congress previously doubted the We have therefore held that non-citizens constitutionality of detention for more than detained pursuant to § 1226(a) and § six months. Consequently, for the sake of 1231(a)(6) are entitled to bond hearings uniform administration in the federal courts, before an IJ when detention becomes we recognize that period. prolonged. Following Zadvydas, we have defined While the government falsely equates the detention as “prolonged” when “it has lasted bond hearing requirement to mandated six months and is expected to continue more release from detention or facial invalidation than minimally beyond six months.” At that of a general detention statute, our precedents point, we have explained, “the private make clear that there is a distinction interests at stake are profound,” and “the risk

270 of an erroneous deprivation of liberty in the not lead to automatic release,” because the absence of a hearing before a neutral government retains discretionary authority to decisionmaker is substantial.” detain the individual under § 1226(a). Instead, such a determination allows the IJ to B. Entitlement to a Bond Hearing consider granting bond under the § 1226(a) standards, namely, whether the detainee With this well-established precedent of the would pose a danger or flight risk if released. Supreme Court and our Court in mind, we review the district court's grant of summary As a result of § 1226(c)'s mandatory language judgment and entry of a permanent and the limited review available through a injunction. We consider, in turn, whether Joseph hearing, individuals are often individuals detained under §§ 1226(c), detained for years without adequate process. 1225(b), 1226(a), and 1231(a) are entitled to Members of the § 1226(c) subclass also tend bond hearings after they have been detained to be detained for longer periods than other for six months. class members: The longest-detained class member was confined for 1,585 days and 1. The § 1226(c) Subclass counting as of April 28, 2012, and the average subclass member faces detention for Section 1226(c) requires that the Attorney 427 days. These lengthy detention times bear General detain any non-citizen who is no relationship to the seriousness of class inadmissible or deportable because of his members' criminal history or the lengths of criminal history upon that person's release their previously served criminal sentences. In from imprisonment, pending proceedings to several instances identified by class counsel, remove him from the United States. a class member was sentenced to one to three Detention under § 1226(c) is mandatory. months in prison for a minor controlled Individuals detained under that section are substances offense, then endured one or two not eligible for release on bond or parole; years in immigration detention. Nor do these they may be released only if the Attorney detention durations bear any relation to the General deems it “necessary” for witness merits of the subclass members' claims: Of protection purposes, id. § 1226(c)(2). the § 1226(c) subclass members who apply for relief from removal, roughly 40% are An individual detained under § 1226(c) may granted such relief, a rate even higher than ask an IJ to reconsider whether the mandatory that of the overall class. detention provision applies to him, but such In Rodriguez II, we held that “the prolonged review is limited in scope and addresses only detention of an alien [under § 1226(c) ] whether the individual is properly included in without an individualized determination of a category of non-citizens subject to his dangerousness or flight risk would be mandatory detention based on his criminal constitutionally doubtful.” To avoid these history. At a “Joseph hearing,” a detainee “constitutional concerns, § 1226(c)'s “may avoid mandatory detention by mandatory language must be construed ‘to demonstrating that he is not an alien, was not contain an implicit reasonable time convicted of the predicate crime, or that the limitation.’ ” Accordingly, at the six-month [DHS] is otherwise substantially unlikely to mark, “when detention becomes prolonged, § establish that he is in fact subject to 1226(c) becomes inapplicable,” and “the mandatory detention.” “A determination in Attorney General's detention authority rests favor of an alien” at a Joseph hearing “does

271 with § 1226(a).” Under Casas, those general rule for ‘conclusions on pure issues detainees are then entitled to a bond hearing. of law.’ ”

Contrary to the government's argument, this The question resolved in Rodriguez II— holding is consistent with the text of § whether non-citizens subject to prolonged 1226(c), which requires that the government detention under § 1226(c) are entitled to bond detain certain non-citizens but does not hearings—is a pure question of law. We mandate such detention for any particular interpreted the statute by applying the canon length of time. Our holding is also consistent of constitutional avoidance, and were bound with the Supreme Court's decision in to do so by our prior precedent. The decision Demore, which turned on the brevity of the was not made “hastily”; it provided a “fully detention at issue. considered appellate ruling” on the legal issues. Since Rodriguez II, no intervening changes in the law have affected our conclusions. 2. The § 1225(b) Subclass Neither the Supreme Court nor our Circuit has had occasion to reexamine these issues, Section 1225(b) applies to “applicants for and the Third and Sixth Circuits have not admission” who are stopped at the border or changed the positions they adopted in Diop a port of entry, or who are “present in the and Ly, respectively. United States” but “ha[ve] not been admitted.” 8 U.S.C. § 1225(a)(1). The statute Moreover, district courts have relied on provides that asylum seekers “shall be Rodriguez II in resolving numerous habeas detained pending a final determination of petitions filed by immigration detainees. credible fear of persecution and, if found not to have such a fear, until removed.” As to all Thus, Rodriguez II is law of the case and law other applicants for admission, the statute of the circuit. As we recently explained, the provides that “if the examining immigration “law of the case doctrine” provides that “a officer determines that an alien seeking court will generally refuse to reconsider an admission is not clearly and beyond a doubt issue that has already been decided by the entitled to be admitted, the alien shall be same court or a higher court in the same detained” for removal proceedings. case.” Likewise, pursuant to the “ ‘law of the circuit’ rule,” “a published decision of this Under DHS regulations, non-citizens court constitutes binding authority which detained pursuant to § 1225(b) are generally ‘must be followed unless and until overruled not eligible for release on bond. If there are by a body competent to do so.’ ” “urgent humanitarian reasons or significant public benefit[s]” at stake, however, the The “ ‘general rule’ is that our decisions ‘at Attorney General has discretion to the preliminary injunction phase do not temporarily parole such an individual into the constitute the law of the case.’ ” Because United States, provided that the individual preliminary injunction decisions are often presents neither a danger nor a risk of flight. “made hastily and on less than a full record,” Because parole decisions under § 1182 are they “may provide little guidance as to the purely discretionary, they cannot be appealed appropriate disposition on the merits.” to IJs or courts. This lack of review has However, “there is an exception to the proven especially problematic when immigration officers have denied parole

272 based on blatant errors: In two separate cases be detained at the border and hence as never identified by the petitioners, for example, having effected entry into this country.” Such officers apparently denied parole because non-citizens therefore “enjoy very limited they had confused Ethiopia with Somalia. protections under the United States And in a third case, an officer denied parole constitution.” However, even if the majority because he had mixed up two detainees' files. of prolonged detentions under § 1225(b) are As with § 1226(c), the government often cites constitutionally permissible, “the Supreme § 1225(b)'s mandatory language to justify Court has instructed that, where one possible indefinite civil detention without an application of a statute raises constitutional individualized determination as to whether concerns, the statute as a whole should be the detainee would pose a danger or flight construed through the prism of constitutional risk if released. Section 1225(b) subclass avoidance.” Section 1225(b) applies to members have been detained for as long as several categories of lawful permanent 831 days, and for an average of 346 days residents who are not subject to the entry each. These individuals apply for and receive fiction doctrine but may be treated as seeking relief from removal at very high rates: 94% admission under 8 U.S.C. § 1101(a)(13)(C). apply, and of those who apply, 64% are Because those persons are entitled to due granted relief. In illustrative cases identified process protections under the Fifth by the petitioners, non-citizens fled to the Amendment, prolonged detention without United States after surviving kidnapping, bond hearings would raise serious torture, and murder of their family members constitutional concerns. We therefore in their home countries. Upon arrival, these construed the statutory scheme to require a individuals were detained under § 1225(b), bond hearing after six months of detention and they remained in detention until the under § 1225(b). government granted their asylum applications hundreds of days later. The government now argues that “[d]espite years of discovery, petitioners have not In Rodriguez II, we extended Casas and held identified any member of the Section 1225(b) that to avoid serious constitutional concerns, subclass who is a [lawful permanent mandatory detention under § 1225(b), like resident].” Petitioners represent that they mandatory detention under § 1226(c), must have found lawful permanent residents who be construed as implicitly time-limited. have been detained for more than six months Accordingly, “the mandatory provisions of § under § 1225(b), although their submissions 1225(b) simply expire at six months, at which do not identify any specific individuals who point the government's authority to detain the fit that description. The question, however, is alien shifts to § 1226(a), which is whether “one possible application of [the] discretionary and which we have already held statute raises constitutional concerns.” requires a bond hearing.” Because the government concedes that detention of lawful permanent residents In so holding, we recognized that many under § 1225(b) is possible under § members of the § 1225(b) subclass are 1101(a)(13)(C), “the statute as a whole subject to the “entry fiction” doctrine, under should be construed through the prism of which non-citizens seeking admission to the constitutional avoidance.” United States “may physically be allowed within its borders pending a determination of The government also argues that lawful admissibility,” but “are legally considered to permanent residents treated as seeking

273 admission are entitled to lesser due process protections than other lawful permanent Accordingly, we adhere to Rodriguez II's residents. But the government has not holding regarding the § 1225(b) subclass as provided any authority to support that law of the case and law of the circuit. The proposition: The cases cited in the government's attempts to re-litigate government's brief address statutory and Rodriguez II are unavailing. regulatory distinctions between lawful permanent residents treated as applicants for 3. The § 1226(a) Subclass admission and other lawful permanent residents; they do not reflect any Section 1226(a) authorizes detention constitutional distinction between those “pending a decision on whether the alien is to groups. be removed from the United States.” 8 U.S.C. § 1226(a). The statute expressly authorizes Finally, the government argues that, instead release on “bond of at least $1,500” or of requiring bond hearings, we could avoid “conditional parole.” Following an initial constitutional concerns by interpreting § custody determination by DHS, a non-citizen 1225(b) not to apply to lawful permanent may apply for a review or redetermination by residents. This argument relies on an an IJ, and that decision may be appealed to implausible construction of the statutes at the BIA. At these hearings, the detainee bears issue. Section 1225(b) applies to “applicants the burden of establishing “that he or she does for admission,” and § 1101 defines six not present a danger to persons or property, is categories of lawful permanent residents as not a threat to the national security, and does “seeking an admission into the United States not pose a risk of flight.” “After an initial for purposes of the immigration laws.” bond redetermination,” a request for another review “shall be considered only upon a The Supreme Court's decision in Kwong Hai showing that the alien's circumstances have Chew v. Colding is not to the contrary. Chew changed materially since the prior bond involved a pre-IIRIRA immigration redetermination.” 8 C.F.R. § 1003.19(e). The regulation that applied to “excludable” non- government has taken the position that citizens. Because the regulations were silent additional time spent in detention is not a as to whether that category included lawful “changed circumstance” that entitles a permanent residents returning from voyages detainee to a new bond hearing. abroad, the Court distinguished between the “exclusion” of newly arriving non-citizens Although § 1226(a) provides for and the “expulsion” of lawful permanent discretionary, rather than mandatory, residents, thereby holding that the regulation detention and establishes a mechanism for did not authorize the Attorney General to detainees to seek release on bond, non- detain arriving lawful permanent residents citizens often face prolonged detention under without hearings. Section 1101(a)(13)(C) that section. In an extreme case identified by forecloses an analogous construction of § the petitioners, a non-citizen with no criminal 1225(b) because it provides that “applicants record entered the United States on a tourist for admission” includes several groups of visa and affirmatively applied for asylum, lawful permanent residents. In any event, the withholding of removal, and relief under the government's alternative construction of § Convention Against Torture shortly after that 1225(b) was never raised before the district visa expired. ICE detained him throughout court; the argument is therefore forfeited. the ensuing proceedings before the IJ, the

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BIA, and the Ninth Circuit. At the time Section 1231(a) governs detention of non- petitioners generated their report, he had been citizens who have been “ordered removed.” 8 detained for 1,234 days with no definite end U.S.C. § 1231(a). The statute provides for in sight. mandatory detention during a ninety-day removal period. Id. § 1231(a)(2). Under the The district court's decision regarding the § statute: 1226(a) subclass was squarely controlled by our precedents. In Casas, we held that a non- The removal period begins on the latest of the citizen subjected to prolonged detention following: under § 1226(a) is entitled to a hearing to establish whether continued detention is (i) The date the order of removal necessary because he would pose a danger to becomes administratively final. the community or a flight risk upon release. Since deciding Casas, we have repeatedly (ii) If the removal order is judicially affirmed its holding. reviewed and if a court orders a stay of the removal of the alien, The government does not contest that Casas the date of the court's final order. is the binding law of this circuit or that individuals detained under § 1226(a) are (iii) If the alien is detained or confined entitled to bond hearings. Instead, the (except under an immigration government argues that § 1226(a) affords process), the date the alien is detainees the right to request bond hearings, released from detention or so there is no basis for requiring the confinement. government to automatically provide bond hearings after six months of detention. This The removal period may be extended beyond argument is foreclosed by Casas, which held ninety days if a detainee “fails or refuses” to that “ § 1226(c) must be construed as cooperate in his removal from the United requiring the Attorney General to provide the States. alien with [a bond] hearing.” The record evinces the importance of Casas's holding on “If the alien does not leave or is not removed this point: Detainees, who typically have no within the removal period,” he “shall be choice but to proceed pro se, have limited subject to supervision,” but detention is no access to legal resources, often lack English- longer mandatory. Rather, the Attorney language proficiency, and are sometimes General has discretion to detain certain illiterate. As a result, many class members are classes of non-citizens and to impose not aware of their right to a bond hearing and conditions of release on others. Before are poorly equipped to request one. releasing a detainee, the government must Accordingly, we conclude that class conclude that removal is “not practicable or members are entitled to automatic bond not in the public interest,” that the detainee is hearings after six months of detention. We “non-violent” and “not likely to pose a threat address the other procedural requirements for to the community following release,” and that these hearings in Section IV.B, infra. the detainee “does not pose a significant flight risk” and is “not likely to violate the 4. The § 1231(a) Subclass conditions of release.”

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Here, the class is defined, in relevant part, as non-citizens who are detained “pending 1. Burden and Standard of Proof completion of removal proceedings, including judicial review.” The class The government argues that the district court therefore by definition excludes any detainee erred in requiring the government to justify a subject to a final order of removal. non-citizen's detention by clear and convincing evidence, an intermediate burden Petitioners describe the § 1231(a) subclass as of proof that is more than a preponderance of individuals detained under that section who the evidence but less than proof beyond a have received a stay of removal from the BIA reasonable doubt. As we noted in Rodriguez or a court. However, if a non-citizen has II, however, we are bound by our precedent received a stay of removal from the BIA in Singh, which held that “the government pending further administrative review, then must prove by clear and convincing evidence the order of removal is not yet that an alien is a flight risk or a danger to the “administratively final.” The non-citizen has community to justify denial of bond at a not been “ordered removed,” and the removal Casas hearing.” period has not begun, so § 1231(a) is inapplicable. Similarly, as long as a non- In Singh, we explained that the “Supreme citizen's removal order is stayed by a court Court has repeatedly reaffirmed the principle pending judicial review, that non-citizen is that ‘due process places a heightened burden not subject to “the court's final order.” In such of proof on the State in civil proceedings in circumstances, § 1231(a) is, again, which the individual interests at stake ... are inapplicable. both particularly important and more substantial than mere loss of money.’ ” In the Simply put, the § 1231(a) subclass does not civil commitment context, for example, the exist. The district court's grant of summary Supreme Court has recognized “the state's judgment and permanent injunction are interest in committing the emotionally therefore reversed to the extent they pertain disturbed,” but has held that “the individual's to individuals detained under § 1231(a). interest in not being involuntarily confined indefinitely ... is of such weight and gravity C. Procedural Requirements that due process requires the state to justify confinement by proof more substantial than a In addition to challenging the class members' mere preponderance of the evidence.” entitlement to automatic bond hearings after Drawing on this jurisprudence, Singh six months of detention, the government concluded that “a clear and convincing objects to the district court's order regarding evidence standard of proof provides the the burden and standard of proof at such appropriate level of procedural protection” in hearings. The government also appeals the light of “the substantial liberty interest at district court's ruling that IJs must consider stake.” alternatives to detention. Petitioners cross- appeal the district court's rulings that IJs are The government now contends that Singh not required to consider the ultimate was wrongly decided. However, it is well likelihood of removal, assess the total length established that only a full court, sitting en of detention, or conduct periodic hearings at banc, may overrule a three-judge panel six-month intervals. We address each issue in decision. Right or wrong, we are bound to turn.

276 follow Singh unless intervening Supreme may be released” and to “ameliorat[e] the Court authority is to the contrary. conditions” of release imposed by DHS. Accordingly, if DHS detains a non-citizen, an 2. Restrictions Short of Detention IJ is already empowered to “ameliorat[e] the conditions” by imposing a less restrictive The government also argues that the district means of supervision than detention. court erred in “determin [ing] that IJs are required to consider the use of alternatives to Finally, the government argues that IJs lack detention in making bond determinations.” the resources to engage in continuous As the district court's order states, however, monitoring of released individuals. However, IJs “should already be considering the government fails to cite any law or restrictions short of incarceration.” Indeed, evidence indicating that IJs, rather than DHS Rodriguez II affirmed a preliminary or ICE agents, would be responsible for injunction that directed IJs to “release each implementing the conditions of release. Subclass member on reasonable conditions of Moreover, the record indicates that Congress supervision, including electronic monitoring authorized and funded an ICE alternatives-to- if necessary, unless the government” satisfied detention program in 2002, and DHS has its burden of justifying continued detention. operated such a program, called the Intensive Supervision and Appearance Program, since The government's objections to this 2004. It is abundantly clear that IJs can and requirement are unpersuasive. First, the do17 consider conditions of release on bond government relies on Demore for the when determining whether the government's proposition that the government is not interests can be served by detention only, and required “to employ the least burdensome we conclude that DHS will administer any means” of securing immigration detainees. such conditions, regardless of whether they But Demore applies only to “brief period[s]” are imposed by DHS in the first instance or of immigration detention. “When the period by an IJ upon later review. of detention becomes prolonged, ‘the private interest that will be affected by the official 3. Length of Detention and action’ is more substantial; greater Likelihood of Removal procedural safeguards are therefore required.” Further, the injunction does not In their cross-appeal, petitioners argue that require that IJs apply the least restrictive the district court erred in failing to require IJs means of supervision; it merely directs them to consider the length of a non-citizen's past to “consider” restrictions short of detention. and likely future detention and, relatedly, the The IJ ultimately must decide whether any likelihood of eventual removal from the restrictions short of detention would further United States. In our prior decisions, we have the government's interest in continued not directly addressed whether due process detention. requires consideration of the length of future detention at bond hearings. We have noted, Second, the government argues that IJs are however, that “the due process analysis not empowered to impose conditions of changes as ‘the period of ... confinement release. However, federal regulations grows,’ ” and that longer detention requires authorize IJs to “detain the alien in custody, more robust procedural protections. release the alien, and determine the amount Accordingly, a non-citizen detained for one of bond, if any, under which the respondent or more years is entitled to greater solicitude

277 than a non-citizen detained for six months. The district court here did not address this Moreover, Supreme Court precedent proposed requirement. For the same reasons provides that “detention incidental to the IJ must consider the length of past removal must bear a reasonable relation to its detention, we hold that the government must purpose.” At some point, the length of provide periodic bond hearings every six detention could “become[ ] so egregious that months so that noncitizens may challenge it can no longer be said to be ‘reasonably their continued detention as “the period of ... related’ to an alien's removal.” An IJ confinement grows.” therefore must consider the length of time for which a non-citizen has already been V. Conclusion detained. This decision flows from the Supreme As to the likely duration of future detention Court's and our own precedent bearing on the and the likelihood of eventual removal, constitutional implications of our however, those factors are too speculative government's prolonged civil detention of and too dependent upon the merits of the individuals, many of whom have the legal detainee's claims for us to require IJs to right to live and work in our country. By consider during a bond hearing. We therefore upholding the district court's order that affirm the district court's ruling that Immigration Judges must hold bond hearings consideration of those factors “would require for certain detained individuals, we are not legal and political analyses beyond what ordering Immigration Judges to release any would otherwise be considered at a bond single individual; rather we are affirming a hearing” and is therefore not appropriate. We minimal procedural safeguard—a hearing at note that Zadvydas and its progeny require which the government bears only an consideration of the likelihood of removal in intermediate burden of proof in particular circumstances,18 but we decline to demonstrating danger to the community or require such analysis as a threshold inquiry in risk of flight—to ensure that after a lengthy all bond hearings. period of detention, the government continues to have a legitimate interest in the 4. Periodic Hearings further deprivation of an individual's liberty. Immigration Judges, a specialized and The record shows that many class members experienced group within the Department of are detained well beyond the six-month Justice, are already entrusted to make these mark: Almost half remain in detention at the determinations, and need not release any twelve-month mark, one in five at eighteen individual they find presents a danger to the months, and one in ten at twenty-four community or a flight risk after hearing and months. Petitioners argue that due process weighing the evidence. Accordingly, we requires additional bond hearings at six- affirm all aspects of the district court's month intervals for class members who are permanent injunction, with three exceptions: detained for more than six months after their We reverse as to the § 1231(a) subclass, and initial bond hearings. We have not had we hold that IJs must consider the length of occasion to address this issue in our previous detention and provide bond hearings every decisions, and it has been a source of some six months. We hereby remand to the district contention in the district courts. court to enter a revised injunction consistent with our instructions.

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AFFIRMED IN PART; REVERSED IN PART; REMANDED.

279

“No decision in two immigration-enforcement cases”

SCOTUSblog Kevin Johnson June 26, 2017

President Donald Trump has made In a class-action challenge to immigrant immigration enforcement a top priority. Two detention, Jennings v. Rodriguez raised the immigration-enforcement cases looked likely question whether immigrants, like virtually to have a big impact on the Trump any U.S. citizen placed in criminal or civil administration’s plans. Both were argued detention, must be guaranteed a bond before the confirmation of Justice Neil hearing. The U.S. Court of Appeals for the Gorsuch. Today, the Supreme Court, 9th Circuit affirmed a district court injunction apparently deadlocked, ordered reargument requiring bond hearings every six months for of the cases. immigrant detainees. One of the cases, Jennings v. Rodriguez, Indefinite detention without a hearing and involved immigration detention. Detained possible release is difficult to justify as a immigrants ordinarily have been eligible to matter of constitutional law. At the same post bond and be allowed release from time, however, some justices at oral custody. In a January 25, 2017, executive argument expressed concern that the 9th order, among numerous immigration- Circuit had acted more like a legislature than enforcement initiatives, Trump announced an a court in mandating a bond hearing every six end to the “catch and release” of immigrants months. In the end, the court apparently facing removal from the United States. needed a tiebreaking vote and will address Detention without bond thus became official immigration detention next term. immigration-enforcement policy. Another case that the court did not decide Generally speaking, criminal and civil involved criminal removal. In the last few detention of U.S. citizens is subject to basic years, the Supreme Court has decided a constitutional safeguards. Such a rights- steady number of criminal-removal cases. In based system, however, fits uncomfortably light of the Trump administration’s stated into the much more limited constitutional emphasis on the removal of “criminal aliens,” protections historically offered to we will likely see more criminal removal noncitizens. Reflecting this tension, the cases in the future. Most of the removal cases Supreme Court’s immigration-detention that have recently come before the court, decisions are not altogether consistent. including Esquivel-Quintana v. Sessions decided earlier this term, have raised ordinary

280 issues of statutory interpretation and Supreme Court’s 2015 opinion in Johnson v. administrative deference. United States, in which court found the Armed Career Criminal Act’s similarly Sessions v. Dimaya instead was a worded definition of “violent felony” was so constitutional challenge to a criminal- vague as to violate due process. removal provision in the immigration laws, which historically have been largely immune The application of the void-for-vagueness from judicial review. The court appears to be doctrine to the immigration laws apparently moving toward applying ordinary divided the court. At oral argument, the constitutional norms to the immigration laws. justices seemed to agree that the court should Earlier this term, for example, the court in review immigration-removal provisions Sessions v. Santana-Morales held that gender under the standard due process test for distinctions favoring women over men in the vagueness. However, they appeared to be derivative-citizenship provisions of the divided as to whether the case at hand was immigration laws violated the Constitution’s distinguishable from Johnson and thus equal protection guarantee. whether Section 16(b) is unconstitutionally vague. A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated For the last decade, immigration cases have felony” is subject to mandatory removal. The been a bread-and-butter part of the Supreme Immigration and Nationality Act defines Court’s docket. The Supreme Court has “aggravated felonies” expansively. That slowly but surely moved immigration law definition incorporates 18 U.S.C. §16(b), toward the constitutional mainstream. We known as the “residual clause,” which will have to wait until the next term to see if defines a “crime of violence” to encompass the court continues that trend with respect to “any … offense that is a felony and that, by immigrant detention and criminal removal. its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

James Garcia Dimaya, who immigrated lawfully from the Philippines in 1992, has two residential burglary convictions; neither involved violence. Based on the convictions, the immigration court and the Board of Immigration Appeals ordered Dimaya removed from the United States. The U.S. Court of Appeals for the 9th Circuit found that Section 16(b) was unconstitutionally vague and vacated the order. To reach that conclusion, the 9th Circuit relied on the

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“Supreme Court to Review No-Bail Policy for Immigrants Awaiting Hearings”

The Wall Street Journal Jess Bravin June 20, 2016

The Supreme Court on Monday agreed to The majority opinion in that case stressed the hear a Justice Department appeal of a 2015 “very limited” length of no-bail detentions at lower-court decision requiring bail hearings issue, relying on figures showing the average for immigrants who have been in detention detention in 2001 was 47 days, while the 15% for at least six months awaiting deportation of immigrants who appeal a deportation order proceedings. were in detention for about 4½ months. The figures were provided by the Executive However, the American Civil Liberties Office for Immigration Review, which Union—which won a lower-court ruling conducts the hearings. requiring bail hearings after six months— said recently disclosed hearing records show The ACLU, which worked on the 2003 case, a 2003 high-court precedent the Justice said the actual average detention time in 2001 Department cited to bolster its case was was 2½ half weeks longer. “The real number partly based on government-supplied is 65 days,” said Michael Tan, an ACLU information that understated the length of attorney. The group learned of issues with immigration detentions. statistics in the earlier case through a Freedom of Information Act request filed It isn’t clear whether a difference in the time during the current litigation. frame would have affected the outcome of the 2003 case. But critics of the government’s Mr. Tan said the government reached the immigration policies say that prehearing lower number by factoring in categories of detention with no chance for bail becomes aliens that an immigration judge was required less reasonable the longer it lasts. to deport—cases that are resolved quickly because there are no issues for the hearing to The 2003 case, Demore v. Kim, upheld by a resolve. Mr. Tan also said the government 5-4 vote the government’s practice of holding counted as completed cases that weren’t over without bail immigrants—even those who are but only transferred—with the immigrant still permanent U.S. residents with “green in detention—to another immigration court. cards”—who became eligible for deportation because they committed a crime. Justice Department spokesman Patrick Rodenbush said officials were re-examining the numbers provided in the Kim case, but

282 after an initial review, “we feel our In 2012, the department told the court it had information to the court was appropriate.” incorrectly stated in 2009 that it “facilitated” the return to the U.S. of deported aliens who A 2012 Justice Department inspector general later win their immigration appeals. The report criticized the Executive Office for government then altered its practice to Immigration Review for reporting its conform to what it told the court it already performance in ways that are “incomplete had been doing, government and immigration and overstate the actual accomplishments” of lawyers say. its courts. Last year, the Ninth U.S. Circuit Court of Theodore Olson, who as solicitor general Appeals in San Francisco held the argued the government’s position in 2003, Constitution’s due-process guarantee said he had little recollection of the case and requires a bail hearing where detained didn’t remember any internal dispute over the immigrants can argue they will show up later length of detentions.“Statistics like that for their date in immigration court and pose would presumably have come from the no risk to public safety. The Obama agency or agencies responsible,” Mr. Olson administration appealed that decision to the said. It would be “highly unlikely” for Supreme Court. lawyers in his office to delve “into such statistics at a granular level.” In deciding the class-action suit, the Ninth Circuit relied on both the Kim precedent and David Strauss, a law professor at the an earlier case holding that immigrants University of Chicago, said the possibility of detained indefinitely are entitled to a bail error in a solicitor general brief was troubling hearing after six months. The appeals court because unlike other litigants, the office often observed that affected immigrants “spend, on introduces new information at the Supreme average, 404 days in immigration detention,” Court level. which is considered an administrative matter “What the (solicitor general) says in its brief rather than a form of punishment. is not subject to the usual testing the legal system provides for its claims,” Mr. Strauss said. “The court is really counting on them to get it right because there’s no other check.”

The court will hear the case on bail hearings in its next term, which begins in October.

The Kim case marks the second time in recent years that a records disclosure suggested the Justice Department provided incorrect information to the Supreme Court regarding immigration practices.

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“High Court To Decide If Immigrants Entitled To Bond Hearings”

Law360 Allissa Wickham June 20, 2016

The U.S. Supreme Court on Monday decided challenging their detention, had asked the to hear a case over whether certain justices not to hear the appeal. immigrants are entitled to automatic bond “The government’s contention that certiorari hearings following six months of detention, is warranted to preserve its ability to control adding another layer to the national debate the borders and reduce the risk of terrorism is over immigrant detention. hyperbolic and unsupported by anything in The high court granted certiorari to Jennings the decision below or the voluminous record v. Rodriguez, in which the Ninth Circuit compiled in the district court,” Rodriguez had ruled, among other things, that immigrants argued. are entitled to bond hearings after six months If the high court were to affirm the Ninth if they were detained under a provision Circuit, the impact of such a ruling could be allowing the government to hold immigrants significant, according to Denise Gilman, the during their deportation proceedings. As is director of the immigration clinic at the customary, the justices did not explain their University of Texas School of Law. Such a reasoning for taking up the case. decision would mean "whole swaths of the In its March 25 petition, the U.S. Department country" would be in a situation where people of Justice had strongly urged the justices to held under mandatory detention provisions review the October ruling from the Ninth would have a right to detention review, she Circuit. The agency claimed the appeals previously told Law360. court’s “wholesale revision” of the law on the However, if the justices upheld the Ninth detention of immigrants during deportation Circuit, the already overburdened proceedings “oversteps the proper judicial immigration courts across the country could role.” find themselves overwhelmed with having to The government also argued that the court’s set new hearings, according to Holly Cooper, decision gets in the way of the Department of the associate director of the immigration law Homeland Security’s ability to control U.S. clinic at University of California Davis borders. School of Law, who submitted an amicus brief in the Rodriguez appeal. But Alejandro Rodriguez, a green card holder representing a class of noncitizens "It would be enormous if every circuit adopted this ruling," Cooper said, noting that

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"immigration courts would probably almost buckle with the overwhelming need to set new hearings." The issue of immigrant detention has also popped up in other courts, such as the Second Circuit. The appeals court held in October that the government cannot indefinitely detain immigrants awaiting deportation proceedings following criminal offenses, saying they must be given a bail hearing within six months of being taken into custody. And in another case, the federal government is asking the Ninth Circuit to overturn a ruling that found the Obama administration’s detention of immigrant families violated a 1997 agreement that set national standards for dealing with undocumented children. The federal petitioners are represented by Solicitor General Donald B. Verrilli Jr. The respondents have been represented in the case by Ahilan Thevanesan Arulanantham of the ACLU Foundation of Southern California, Sean Ashley Commons of Sidley Austin LLP and others. The case is David Jennings v. Alejandro Rodriguez, case number 15-1204, in the U.S. Supreme Court.

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“Courts Say Detained Non-Citizens Have The Right To Bond Hearings”

NPR Richard Gonzales October 29, 2015

At the same time that immigration is a hot- "Every circuit [appeals] court has ruled that it button issue on the presidential campaign is unlawful to hold a detainee without that trail, in the courts, immigration advocates are person having the possibility of a hearing," chipping away at the government's authority said Ahilan Arulanantham, deputy legal to detain non-citizens indefinitely. director of the ACLU of Southern California. Two rulings issued this week from the The Ninth Circuit, in Rodriguez v. Robbins, Second Circuit Court of Appeals in New ruled that the government has to justify "by York and the Ninth Circuit Court of Appeals clear and convincing evidence that an alien is in California say that detainees have the right a flight risk or a danger to the community to to a bond hearing while they are fighting their justify denial of bond." It also ruled the deportation cases. government has to consider alternatives to detention such as electronic monitoring The practical impact? Thousands of devices. Finally, it said detainees should get immigrants, legal or not, who were held for a bond hearing every six months. indefinite periods now have the right to a release hearing where it will be up to an "This decision substantially decreases the immigration judge to decide whether they are likelihood people will get lost in the system dangerous or present a flight risk. The courts' for years on end because there will be some rulings apply in the states covered by those examination of why the person is still locked circuits. away. It provides them with an elemental component of due process," said Ever since 1996, when Congress passed the Arulanantham. Illegal Immigration Reform and Immigrant Responsibility Act, the government has In a more limited ruling, the Second Circuit detained broad categories of non-citizens for in New York, in a case called Lora v. prolonged periods and denied them the right Shanahan adopted what it called "a bright- to challenge their detention. line rule" that detainees must get a hearing within six months of his or her detention. The constitutionality of that section of the law was first challenged in 2003. Since then, Two other appellate courts, the Third and the there's been a flurry of court rulings. Sixth Circuits, have ruled that a detainee

286 must file a habeas petition or a lawsuit before getting a hearing. With respect to the Ninth Circuit ruling, a spokesman for U.S. Immigration and Customs Enforcement said his agency " is aware of the judges' order and reviewing it."

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Sessions v. Dimaya 15-1498 Ruling Below: Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) Petitioner James Dimaya seeks review of the Board of Immigration’s decision that his convictions for first-degree burglary qualify as crimes of violence under 8 U.S.C. § 1101 (a)(43)(F). Based on the 2015 Johnson v. United States ruling, he claims that the definition of “violent crime” under which he was convicted is vague, and therefore unconstitutional.

The Court of Appeals affirms the right of a noncitizen to bring a challenge of vagueness to the definition of a crime of violence. The Court ruled that the language under which Dimaya was convicted is unconstitutionally vague.

Question Presented: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an alien's removal from the United States, is unconstitutionally vague.

Loretta Lynch, Attorney General, v. James Dimaya.

United States Court of Appeal for the Ninth Circuit

Decided on October 19, 2015

[Excerpt; some citations and footnotes omitted]

OPINION (“ACCA”) so-called “residual clause” definition of a “violent felony” is REINHARDT, Circuit Judge: unconstitutionally vague. In this case, we Petitioner James Garcia Dimaya seeks review consider whether language similar to of the Board of Immigration Appeals’ (BIA) ACCA’s residual clause that is incorporated determination that a conviction for burglary into § 1101(a)(43)(F)’s definition of a crime under California Penal Code Section 459 is of violence is also void for vagueness. We categorically a “crime of violence” as defined hold that it suffers from the same by 8 U.S.C. § 1101(a)(43)(F), a indeterminacy as ACCA’s residual clause determination which rendered petitioner and, accordingly, grant the petition for removable for having been convicted of an review. aggravated felony. During the pendency of I petitioner’s appeal, the United States Supreme Court decided Johnson v. United Petitioner, a native and citizen of the States, 135 S. Ct. 2551 (2015), which held Philippines, was admitted to the United that the Armed Career Criminal Act’s States in 1992 as a lawful permanent resident.

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In both 2007 and 2009, petitioner was imprisonment for each conviction was convicted of first-degree residential burglary greater than one year, the IJ determined that under California Penal Code section 459 and these convictions were crimes of violence. sentenced each time to two years in prison. If On the basis of this conclusion, the IJ held a non-citizen is convicted of an aggravated that petitioner was removable and ineligible felony, he is subject to removal. 8 U.S.C. § for any relief. The BIA dismissed petitioner’s 1227(a)(2)(A)(iii). Citing petitioner’s two appeal on the same ground. Citing § 16(b) first-degree burglary convictions, the and Becker, the BIA concluded that Department of Homeland Security (“DHS”) “[e]ntering a dwelling with intent to commit charged that petitioner was removable a felony is an offense that by its nature carries because he had been convicted of a “crime of a substantial risk of the use of force,” and violence . . . for which the term of therefore affirmed the IJ’s holding that imprisonment [was] at least one year”—an petitioner was convicted of a crime of aggravated felony under 8 U.S.C. § violence. 1101(a)(43)(F). That statute defines a “crime Petitioner filed a timely petition with this of violence” by reference to 18 U.S.C. § 16, Court for review of the BIA’s decision. After which provides the following definition: the parties argued this case, the United States (a) an offense that has as an Supreme Court decided Johnson and, element the use, attempted because the definition of a crime of violence use, or threatened use of that the BIA relied on in this case is similar physical force against the to the unconstitutional language in ACCA’s person or property of another, residual clause, we ordered supplemental or briefing and held a supplemental oral argument regarding whether § 16(b), as (b) any other offense that is a incorporated into the INA, is also felony and that, by its nature, unconstitutionally vague. We have involves a substantial risk that jurisdiction under 8 U.S.C. § 1252(a)(2)(D) physical force against the to review questions of law, including whether person or property of another language in the immigration statutes is void may be used in the course of for vagueness. See Alphonsus v. Holder, 705 committing the offense. F.3d 1031, 1036–37 (9th Cir. 2013). That The Immigration Judge (IJ) agreed with DHS question, as a pure question of law, receives that first degree burglary in California is a de novo review from this Court. Aguilar- crime of violence. Citing § 16(b) and United Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. States v. Becker, the IJ explained that 2010). “unlawful entry into a residence is by its very II nature an offense where is apt to be violence [sic], whether in the efforts of the felon to The Fifth Amendment’s Due Process Clause escape or in the efforts of the occupant to “requires that a penal statute define the resist the felon.” Because the charging criminal offense with sufficient definiteness documents for each conviction alleged an that ordinary people can understand what unlawful entry, and because the term of conduct is prohibited and in a manner that

289 does not encourage arbitrary and group, or political opinion.” 8 U.S.C. § discriminatory enforcement.” Alphonsus, 1231(b)(3)(A). Under cancellation of 705 F.3d at 1042 (quoting Kolender v. removal, immigration authorities may cancel Lawson, 461 U.S. 352, 357 (1983)). the removal of a lawful permanent resident Although most often invoked in the context who satisfies certain criteria based on length of criminal statutes, the prohibition on of residency, good behavior, and exceptional vagueness also applies to civil statutes, hardship. Id. § 1229b(b)(1). Non-citizens including those concerning the criteria for who commit certain criminal offenses are deportation. Jordan v. De George, 341 U.S. ineligible for these forms of relief. See id. §§ 223, 231 (1951) (“Despite the fact that this is 1231(b)(3)(B)(ii), 1229b(b)(1)(C). As with not a criminal statute, we shall nevertheless denial of withholding of removal, then, examine the application of the vagueness denial of cancellation of removal renders an doctrine to this case. We do this in view of alien ineligible for relief, making deportation the grave nature of deportation.”); see also “a virtual certainty.” United States v. Bonilla, A.B. Small Co. v. Am. Sugar Ref. Co., 267 637 F.3d 980, 984 (9th Cir. 2011). U.S. 233, 239 (1925) (“The defendant The government argues that our circuit’s attempts to distinguish [prior vagueness] reliance on Jordan “is misguided as Jordan cases because they were criminal did not authorize vagueness challenges to prosecutions. But that is not an adequate deportation statutes.” We find this suggestion distinction. The ground or principle of the baffling. Jordan considered whether the term decisions was not such as to be applicable “crime involving moral turpitude” in section only to criminal prosecutions.”). 19(a) of the Immigration Act of 1917, a type Previously, we have recognized the of offense that allowed for a non-citizen to vagueness doctrine’s applicability in the “be taken into custody and deported,” was context of withholding of removal “because void for vagueness. 341 U.S. at 225–31 of the harsh consequences attached to . . . (emphasis added). In considering this denial of withholding of removal.” challenge, the Court explicitly rejected the Alphonsus, 705 F.3d at 1042 (citing Jordan, argument that the vagueness doctrine did not 341 U.S. at 230–31). In this case, Petitioner apply. Id. at 231. The government also argues challenges a statute as unconstitutionally that subsequent Supreme Court decisions vague in the context of denial of cancellation rejected due process challenges to various of removal. immigration statutes. See Marcello v. Bonds, 349 U.S. 302, 314 (1955); Galvan v. Press, For due process purposes, this context is 347 U.S. 522, 530–31 (1954); Harisiades v. highly analogous to denial of withholding of Shaughnessy, 342 U.S. 580, 588–91 (1952). removal because both pose the harsh None of these cases, however, suggests that consequence of almost certain deportation. the Due Process Clause does not apply to Under withholding of removal, a non-citizen deportation proceedings. Nor could they, for who is otherwise removable cannot be it “is well established that the Fifth deported to his home country if he establishes Amendment entitles aliens to due process of that his “life or freedom would be threatened law in deportation proceedings.” Demore v. in that country because of [his] race, religion, Kim, 538 U.S. 510, 523 (2003) (internal nationality, membership in a particular social quotation marks omitted).

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As the Supreme Court recognized in Jordan, physical force against the person or property a necessary component of a non-citizen’s of another may be used in the course of right to due process of law is the prohibition committing the offense.” 18 U.S.C. § 16(b). on vague deportation statutes. Recently, the Had Congress written out the relevant Supreme Court noted the need for definition in full instead of relying on cross- “efficiency, fairness, and predictability in the referencing, a lawful permanent resident administration of immigration law.” Mellouli would be removable if “convicted of an v. Lynch, 135 S. Ct. 1980, 1987 (2015). offense that is a felony and that, by its nature, Vague immigration statutes significantly involves a substantial risk that physical force undermine these interests by impairing non- against the person or property of another may citizens’ ability to “anticipate the be used in the course of committing the immigration consequences of guilty pleas in offense” (emphasis added). The language in criminal court.” Id. (internal quotation marks ACCA that Johnson held unconstitutional is omitted); see also Padilla v. Kentucky, 559 similar. The ACCA provision defined a U.S. 356, 364 (2010) (“[A]ccurate legal “violent felony” as “any crime punishable by advice for noncitizens accused of crimes has imprisonment for a term exceeding one year never been more important” because [i.e., a felony] . . . that . . . involves conduct “deportation is an integral part—indeed, that presents a serious potential risk of sometimes the most important part—of the physical injury to another.” 18 U.S.C. § penalty that may be imposed on noncitizen 924(e)(2)(B)(ii) (emphasis added). defendants who plead guilty to specified Importantly, both the provision at issue here crimes.” (footnote omitted)). For these and ACCA’s residual clause are subject to the reasons, we reaffirm that petitioner may bring same mode of analysis. Both are subject to a void for vagueness challenge to the the categorical approach, which demands that definition of a “crime of violence” in the courts “look to the elements and the nature of INA. the offense of conviction, rather than to the particular facts relating to petitioner’s III crime.” Leocal v. Ashcroft. Specifically, To understand Johnson’s effect on this case, courts considering both § 16(b) and the it is helpful to view §16(b), as incorporated residual clause must decide what a “‘usual or into the INA, alongside the residual clause at ordinary’ violation” of the statute entails and issue in Johnson. The INA provides for the then determine how great a risk of injury that removal of non-citizens who have been “ordinary case” presents. “convicted of an aggravated felony.” 8 In Johnson, the Supreme Court recognized U.S.C. § 1227(a)(2)(A)(iii). Its definition of two features of ACCA’s residual clause that an aggravated felony includes numerous “conspire[d] to make it unconstitutionally offenses, including “a crime of violence (as vague.” 135 S. Ct. at 2557. First, the Court defined in section 16 of Title 18 . . . ).” 8 explained, the clause left “grave uncertainty” U.S.C. § 1101(a)(43)(F). The subsection of about “deciding what kind of conduct the 18 U.S.C. § 16 that the BIA relied on in this ‘ordinary case’ of a crime involves.” That is, case defines a crime of violence as an the provision “denie[d] fair notice to “offense that is a felony and that, by its defendants and invite[d] arbitrary nature, involves a substantial risk that enforcement by judges” because it “tie[d] the

291 judicial assessment of risk to a judicially We see no reason why this aspect of Johnson imagined ‘ordinary case’ of a crime, not to would not apply here, and indeed the real-world facts or statutory elements.” government concedes that it does. As with Second, the Court stated, ACCA’s residual the residual clause, the INA’s definition of a clause left “uncertainty about how much risk crime of violence at issue in this case offers it takes for a crime to qualify as a violent “no reliable way to choose between these felony.” By combining these two competing accounts” of what a crime looks indeterminate inquiries, the Court held, “the like in the ordinary case. residual clause produces more B unpredictability and arbitrariness than the Due Process Clause tolerates.” On that In many circumstances, of course, statutes ground it held the residual clause void for require judges to apply standards that vagueness. The Court’s reasoning applies measure various degrees of risk. The vast with equal force to the similar statutory majority of those statutes pose no vagueness language and identical mode of analysis used problems because they “call for the to define a crime of violence for purposes of application of a qualitative standard such as the INA. The result is that because of the ‘substantial risk’ to real-world conduct.” The same combination of indeterminate inquiries, statute at issue in Johnson was not one of § 16(b) is subject to identical unpredictability those statutes, however. Nor is the provision and arbitrariness as ACCA’s residual clause. at issue here. If the uncertainty involved in In sum, a careful analysis of the two sections, describing the “ordinary case” of a crime was the one at issue here and the one at issue in not enough, its combination with the Johnson, shows that they are subject to the uncertainty in determining the degree of risk same constitutional defects and that Johnson was. ACCA’s violent felony definition dictates that § 16(b) be held void for requires judges to apply “an imprecise vagueness. ‘serious potential risk’ standard . . . to [the] judge-imagined abstraction” of a crime in the A ordinary case. The same is equally true of the In Johnson, the Supreme Court condemned INA’s definition of a crime of violence at ACCA’s residual clause for asking judges “to issue here. Section 16(b) gives judges no imagine how the idealized ordinary case of more guidance than does the ACCA the crime subsequently plays out.” To provision as to what constitutes a substantial illustrate its point, the Court asked enough risk of force to satisfy the statute. rhetorically whether the “ordinary instance” Accordingly, Johnson’s holding with respect of witness tampering involved “offering a to the imprecision of the serious potential risk witness a bribe” or instead “threatening a standard is also clearly applicable to § 16(b). witness with violence.” As with ACCA’s residual clause, § 16(b)’s definition of a crime of violence, combines As with ACCA’s residual clause, the INA’s “indeterminacy about how to measure the crime of violence provision requires courts to risk posed by a crime with indeterminacy “inquire whether ‘the conduct encompassed about how much risk it takes for the crime to by the elements of the offense, in the ordinary qualify as” a crime of violence. case, presents’” a substantial risk of force.

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C committing the offense,” 18 U.S.C. § 16(b). First, we doubt that this phrase actually Notwithstanding the undeniable identity of creates a distinction between the two clauses. the constitutional defects in the two statutory For example, we have consistently held that provisions, the government and dissent offer California’s burglary statute (the very statute several unpersuasive arguments in an attempt at issue in this case) is a crime of violence for to save the INA provision at issue in this case. the purposes of the INA precisely because of First, the government and dissent argue that the risk that violence will ensue after the the Supreme Court found ACCA’s standard defendant has committed the acts necessary to be arbitrary in part because the residual to constitute the offense. By the time the risk clause “force[d] courts to interpret ‘serious of physical force against an occupant arises, potential risk’ in light of the four enumerated however, the defendant has frequently crimes” in the provision, crimes which are already satisfied the elements of the offense “far from clear in respect to the degree of risk of burglary under California law. More each poses.” It is true that, after the Court set important, even if such a distinction did exist, forth its holding in Johnson, it cited the it would not save the INA’s definition of a provision’s four enumerated offenses in crime of violence from unconstitutionality. responding to the government’s argument The Court, in Johnson, held ACCA’s residual that the Court’s holding would cast doubt on clause to be unconstitutionally vague because the many criminal statutes that include it combined the indeterminate inquiry of language similar to the indeterminate term “how to measure the risk posed by a crime” “serious potential risk.” In doing so, in the ordinary case with “indeterminacy however, it stated that while the listed about how much risk it takes for the crime to offenses added to the uncertainty, the qualify as a violent felony.” This reasoning fundamental reason for the Court’s holding applies equally whether the inquiry considers was the residual clause’s “application of the the risk of violence posed by the commission ‘serious potential risk’ standard to an and the aftereffects of a crime, or whether it idealized ordinary case of the crime.” In is limited to consideration of the risk of short, this response clearly reiterated that violence posed by acts necessary to satisfy what distinguishes ACCA’s residual clause the elements of the offense. from many other provisions in criminal statutes was, consistent with its fundamental The government also argues that § 16(b) has holding, the use of the “ordinary case” not generated the same degree of confusion analysis. Johnson therefore made plain that among courts that ACCA’s residual clause the residual clause was void for vagueness in generated. It notes that, in contrast to the five and of itself for the reasons stated in reaching residual clause cases that the Supreme Court its decision, and not because of the clause’s has decided in addition to Johnson, the Court relation to the four listed offenses. has decided only a single case interpreting section 16(b). That the Supreme Court has Next, the government argues that ACCA’s decided more residual clause cases than § residual clause requires courts to consider the 16(b) cases, however, does not indicate that risk that would arise after completion of the it believes the latter clause to be any more offense, and that § 16(b) applies only to capable of consistent application. We can violence occurring “in the course of discern very little regarding he merits of an

293 issue from the composition of the Supreme clause and that of the INA’s definition of a Court’s docket. The Court has crime of violence, none undermines the applicability of Johnson’s fundamental repeatedly indicated that a holding to this case. As with ACCA, section denial of certiorari means only that, for one reason or 16(b) (as incorporated in 8 U.S.C. another which is seldom §1101(a)(43)(F)) requires courts to 1) disclosed, and not measure the risk by an indeterminate infrequently for conflicting standard of a “judicially imagined ‘ordinary reasons which may have case,’” not by real world-facts or statutory nothing to do with the merits elements and 2) determine by vague and and certainly may have uncertain standards when a risk is sufficiently nothing to do with any view of substantial. Together, under Johnson, these the merits taken by a majority uncertainties render the INA provision of the Court, there were not unconstitutionally vague. four members of the Court who thought the case should We GRANT the petition for review be heard. and REMAND to the BIA for further proceedings consistent with this opinion. Moreover, the Supreme Court in recent years has decided substantially more federal CALLAHAN, Circuit Judge, dissenting: criminal appeals than immigration appeals. The Court’s history of deciding ACCA Contrary to the majority’s perspective, the residual clause cases in greater numbers than Supreme Court’s opinion in Johnson v. INA crime of violence cases is thus United States, 135 S. Ct. 2551 (2015), does consistent with its greater interest in federal not infect 18 U.S.C. § 16(b) —or other criminal cases than in immigration cases. In statutes—with unconstitutional vagueness. fact, over this period the ratio of federal Rather, the Supreme Court carefully criminal cases to immigration cases explained that the statute there in issue, a significantly exceeds the ratio of ACCA provision of the Armed Career Criminal Act residual clause cases to INA crime of (ACCA), 18 U.S.C. § 924(e)(2)(B), is violence cases on which the government unconstitutionally vague for two specific relies. reasons: the clause (1) “leaves grave uncertainty about how to estimate the risk IV posed by a crime”; and (2) “leaves uncertainty about how much risk it takes for In Johnson, the Supreme Court held that a crime to qualify as a violent crime.” Id. at ACCA’s residual clause “produces more 2557–58. In contrast, §16(b), as it has been unpredictability and arbitrariness than the interpreted by the Supreme Court and the Due Process Clause tolerates” by “combining Ninth Circuit, has neither of these indeterminacy about how to measure the risk shortcomings. The majority’s contrary posed by a crime with indeterminacy about conclusion fails to appreciate the purpose of how much risk it takes for the crime to § 16(b), elevates the Supreme Court’s qualify as a violent felony.” Although the reference to “ordinary cases” from an government can point to a couple of minor example to a rule, and ignores the Court’s distinctions between the text of the residual

294 statement that it was not calling other statutes S. Ct. 2276 (2013), and Moncrieffe v. Holder, into question (which explains why the Court 133 S. Ct. 1678 (2013). Although the terms did not even mention Leocal v. Ashcraft, 543 “crime of violence,” “violent felony,” and U.S. 1 (2004)). Accordingly, I dissent. “aggravated felonies” may appear to be synonymous to a lay person, courts have Our criminal and immigration laws are not as recognized that, as used in their statutory simple as the majority opinion implies. contexts, they are distinct terms of art Accordingly, I first describe the purpose of § covering distinct acts with different legal 16 and how courts have interpreted the consequences. statute, before reviewing the Supreme Court’s decision in Johnson, and concluding A. that the twin concerns expressed by the In Descamps, the Government sought an Supreme Court in Johnson do not infect § enhancement of Descamps’ sentence under 16(b). the ACCA, 18 U.S.C. § 924(e), on the basis I. that his California conviction for burglary was a “violent felony.” Descamps, 133 S. Ct. Title 18 U.S.C. § 16 contains two distinct at 2281–82. In Taylor v. United States, 495 definitions of “crime of violence,” with U.S. 575 (1990), the Supreme Court had distinct purposes, effects, and judicial established a “rule for determining when a pedigrees. Subsection (a) defines “crime of defendant’s prior conviction counts as one of violence” as “an offense that has as an ACCA’s enumerated predicate offenses.” element the use, attempted use, or threatened Descamps, 133 S. Ct. at 2283. In other words, use of physical force against the person or Taylor focused on whether the state crime property of another.” (emphasis added). and the enumerated federal predicate offense Subsection (b) sets forth a distinct definition had the same elements. In Taylor, the Court that covers offenses that are not within first determined the federal definition of subsection (a)’s definition. It states that burglary, and then considered how courts “crime of violence” means “any other offense were to determine whether a state conviction that is a felony and that, by its nature, met that definition. The Court, concerned involves a substantial risk that physical force with the substantive and practical problems against the person or property of another may of determining that the state conviction met be used in the course of committing the the criteria for a federal offense, set forth a offense.” It follows that an offense that is a “categorical approach” instructing “crime of violence” under subsection (a) also sentencing courts to look at the statutory meets the criteria in subsection (b), but that definitions and not to the particular facts subsection (b) covers offenses that do not underlying a conviction. Descamps, 133 S. meet the criteria in subsection (a). These Ct. at 2283 (citing Taylor, 495 U.S. at 600). subsections serve different functions with different consequences. In Shepard v United States, 544 U.S. 13 (2005), the Court had established the An appreciation of the differences between “modified categorical approach,” which the subsections and their roles informs my allows a sentencing court to scrutinize a understanding of the Supreme Court’s restricted set of materials to determine opinions in Descamps v. United States, 133

295 whether a state conviction matches the prescribe felony punishment for that generic federal offense. The Supreme Court offense.” Id. at 1685. The Court concluded later explained in Descamps that the that Moncrieffe’s state conviction failed to modified categorical approach was a tool “to meet this standard, and accordingly, he was identify, from among several alternatives, the not convicted of an aggravated felony. Id. at crime of conviction so that the court can 1687. compare it to the generic offense.” 133 S. Ct. In both Descamps and Moncrieffe, the critical at 2285. The Court reiterated that its inquiry was whether the underlying state “elements-centric” approach was based on criminal conviction fit within a generic three grounds: (1) “it comports with ACCA’s federal definition of a crime so that a test and history”; (2) “it avoids the Sixth defendant could be expected to have asserted Amendment concerns that would arise from all relevant defenses in his state trial. The sentencing courts making findings of fact that underlying concerns had been set forth by the properly belong to juries”; and (3) “it averts Supreme Court in Shepard: the practical difficulties and potential unfairness of a factual approach.” Id. at 2287 Developments in the law (internal citation omitted). since Taylor, and since the First Circuit’s decision in Similar concerns with fairness underlie the Harris, provide a further Supreme Court’s opinion in Moncrieffe, 133 reason to adhere to the S. Ct. 1678. The Court stated that it granted demanding requirement that certiorari “to resolve a conflict among the any sentence under the ACCA Courts of Appeals with respect to whether a rest on a showing that a prior conviction under a statute that criminalizes conviction “necessarily” conduct described by both [21 U.S.C.] § involved (and a prior plea 841’s felony provision and its misdemeanor necessarily admitted) facts provision, such as a statute that punishes all equating to generic burglary. marijuana distribution without regard to the The Taylor Court, indeed, was prescient in its discussion of amount or remuneration, is a conviction for problems that would follow an offense that ‘proscribes conduct from allowing a broader punishable as a felony under’ the CSA evidentiary enquiry. “If the [Controlled Substance Act].” Id. at 1684. sentencing court were to This, in turn, required a determination of conclude, from its own review whether the state conviction qualified as an of the record, that the “aggravated felony” under the Immigration defendant [who was and Nationality Act (INA), 8 U.S.C. § 1101 convicted under a nongeneric et seq. Id. The Court, accordingly, applied the burglary statute] actually categorical approach “to determine whether committed a generic burglary, the state offense is comparable to an offense could the defendant challenge listed in the INA.” Id. It explained that in this conclusion as abridging order to satisfy the categorical approach, the his right to a jury trial?” 495 U.S. at 601. The Court thus state drug offense “must ‘necessarily’ anticipated the very rule later proscribe conduct that is an offense under the imposed for the sake of CSA, and the CSA must ‘necessarily’

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preserving the Sixth the negligent operation of a Amendment right, that any vehicle. It simply covers fact other than a prior offenses that naturally involve conviction sufficient to raise a person acting in disregard of the limit of the possible the risk that physical force federal sentence must be might be used against another found by a jury, in the absence in committing an offense. . . . of any waiver of rights by the The classic example is defendant. Jones v. United burglary. A burglary would be States, 526 U.S. 227, 243, n. 6 covered under § 16(b) not (1999); see also Apprendi v. because the offense can be New Jersey, 530 U.S. 466, committed in a generally 490 (2000). reckless way or because someone may be injured, but 544 U.S. at 24 (alteration in original). Thus, because burglary, by its for purposes such as sentencing under the nature, involves a substantial ACCA, a state conviction is only an risk that the burglar will use aggravated felony under § 16(a) if the court force against a victim in can fairly conclude that the conviction completing the crime. included all the elements of a federal offense. 543 U.S. at 10 (footnote omitted). Thus, B. when applying § 16(b), courts do not ask While 18 U.S.C. § 16(a) looks to whether the whether the state conviction contained the state conviction contained the elements of a elements of a federal offense, but whether federal offense, the Supreme Court and the there was a “risk that the use of physical force circuit courts have recognized that § 16(b) against another might be required in asks a different question with different committing” the state crime. 18 U.S.C. § parameters and consequences. In Leocal v. 16(b). Ashcroft, 543 U.S. 1, a unanimous Court held We most recently recognized this distinct that a Florida conviction for driving under the treatment of § 16(b) in Rodriguez-Castellon influence of alcohol was not a crime of v. Holder, 733 F.3d 847 (9th Cir. 2013). In violence under § 16(a) or § 16(b). Id. at 4. this opinion, rendered after the Supreme The opinion describes § 16(b) as follows: Court issued its decision in Descamps, we Section 16(b) sweeps more explained: broadly than § 16(a), defining Under 18 U.S.C. § 16, the a crime of violence as phrase “crime of violence” including “any other offense has two meanings. First, that is a felony and that, by its under § 16(a), a state crime of nature, involves a substantial conviction is a crime of risk that physical force against violence if it “has as an the person or property of element the use, attempted another may be used in the use, or threatened use of course of committing the physical force against the offense.” But § 16(b) does not person or property of thereby encompass all another.” . . . Second, even if negligent misconduct, such as the state crime does not

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include one of the elements in United States v. Becker, listed in § 16(a), it is a “crime 919 F.2d 568, 573 (9th Cir. of violence” under § 16(b) if it 1990), where we held that is: (I) a felony; and (ii) “by its “first-degree burglary under nature, involves a substantial California law is a ‘crime of risk that physical force against violence’” as defined by 18 the person or property of U.S.C. § 16(b). See also another may be used in the United States v. Park, 649 course of committing the F.3d 1175, 1178–79 (9th Cir. offense.” 18 U.S.C. § 16(b). 2011). We pointed out in The Supreme Court has Becker that “[a]ny time a explained that § 16(b) burglar enters a dwelling with criminalizes conduct that felonious or larcenous intent “naturally involve[s] a person there is a risk that in the acting in disregard of the risk course of committing the that physical force might be crime he will encounter one of used against another in its lawful occupants, and use committing an offense.” physical force against that Leocal v. Ashcroft, 543 U.S. occupant either to accomplish 1, 10 (2004). his illegal purpose or to escape apprehension.” 919 733 F.3d at 853–54. F.2d at 571 (footnote Our holding in Rodriguez-Castellon is omitted). consistent with our prior opinions Id. at 878. recognizing that first-degree burglary under California Penal Code § 459 remains an Similarly, in United States v. Avila, 770 F.3d “aggravated felony” under § 16(b) even if the 1100, 1105 (4th Cir. 2014), the Fourth Circuit state crime did not include an element of the concluded that “California first-degree federal crime and thus was not an burglary qualifies as a crime of violence “aggravated felony” under § 16(a). See under the residual clause of 18 U.S.C. § United States v. Ramos-Medina, 706 F.3d 16(b).” It held that it need look no further 932, 937–38 (9th Cir. 2013). than the Supreme Court’s opinion in Leocal, 543 U.S. at 10, in concluding that burglary In Chuen Piu Kwong v. Holder, 671 F.3d 872 was the classic example of an offense (9th Cir. 2011), we explained: covered by § 16(b). The question for decision, Thus, the Supreme Court, our prior decisions, then, is whether Kwong’s and the Fourth Circuit, all recognize that the [burglary] offense “by its inquiries under § 16(a) and § 16(b) are nature, involves a substantial distinct, and that even though a state risk that physical force against conviction for burglary may not include an the person or property of element of a generic federal offense, as another may be used in the required to come within § 16(a), a burglary course of [its commission].” conviction nonetheless involves a substantial 18 U.S.C. § 16(b). risk of physical force, and thus is covered by We answered that question in § 16(b). the affirmative some time ago

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II. much risk it takes for the crime to qualify as a violent Having set forth the scope of § 16(b) and the felony, the residual clause courts’ treatment of the section, I turn to the produces more Supreme Court’s opinion in Johnson. unpredictability and A. arbitrariness than the Due Process Clause tolerates. The Supreme Court held that the residual clause of the Armed Career Criminal Act of Id. at 2558. 1984 violates the Constitution’s guarantee of The Court then reviewed its prior efforts to due process. The Court concluded “that the establish a standard and concluded that indeterminacy of the wide-ranging inquiry “James, Chambers, and Sykes failed to required by the residual clause both denies establish any generally applicable test that fair notice to defendants and invites arbitrary prevents the risk comparison required by the enforcement by judges.” Johnson, 135 S. Ct. residual clause from devolving into at 2557. The Court concluded that two guesswork and intuition.” Id. at 2559. The features of the residual clause “conspire to Court further noted that in the lower courts, make it unconstitutional.” Id. at 2557. “In the the residual clause has created numerous first place, the residual clause leaves grave splits and the clause has proved nearly uncertainty about how to estimate the risk impossible to apply consistently. Id. at 2560. posed by a crime. It ties judicial assessment The Court concluded that “[n]ine years’ of risk to a judicially imagined ‘ordinary experience trying to derive meaning from the case’ of a crime, not to real world facts or residual clause convinces us that we have statutory elements.” Id. Second, “the residual embarked on a failed enterprise.” Id. clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent The Court stated, in rejecting the argument felony.” Id. at 2558. that because there may be straightforward cases under the residual clause, the clause is By asking whether the crime not constitutionally vague: “otherwise involves conduct that presents a serious The Government and the potential risk,” moreover, the dissent next point out that residual clause forces courts dozens of federal and state to interpret “serious potential criminal laws use terms like risk” in light of the four “substantial risk,” “grave enumerated crimes— risk,” and “unreasonable burglary, arson, extortion, and risk,” suggesting that to hold crimes involving the use of the residual clause explosives. These offenses are unconstitutional is to place “far from clear in respect to these provisions in the degree of risk each poses.” constitutional doubt. See post, Begay [v. United States], 553 at 2558–2559. Not at all. U.S. [137] 143 [(2008)] . . . . Almost none of the cited laws By combining indeterminacy links a phrase such as about how to measure the risk “substantial risk” to a posed by a crime with confusing list of examples. indeterminacy about how “The phrase ‘shades of red,’

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standing alone, does not The Court also declined the dissent’s generate confusion or invitation “to save the residual clause from unpredictability; but the vagueness by interpreting it to refer to the risk phrase ‘fire-engine red, light posed by the particular conduct in which the pink, maroon, navy blue, or defendant engaged, not the risk posed by the colors that otherwise involve ordinary case of the defendant’s crime.” Id. at shades of red’ assuredly does 2562. It explained: so.” James, 550 U.S., at 230, n. 7, (Scalia, J., dissenting). In the first place, the More importantly, almost all Government has not asked us of the cited laws require to abandon the categorical gauging the riskiness of approach in residual-clause conduct in which an cases. In addition, Taylor had individual defendant engages good reasons to adopt the on a particular occasion. As a categorical approach, reasons general matter, we do not that apply no less to the doubt the constitutionality of residual clause than to the laws that call for the enumerated crimes. Taylor application of a qualitative explained that the relevant standard such as “substantial part of the Armed Career risk” to real-world conduct; Criminal Act “refers to ‘a “the law is full of instances person who . . . has three where a man’s fate depends previous convictions’ for— on his estimating rightly . . . not a person who has some matter of degree,” Nash committed—three previous v. United States, 229 U.S. violent felonies or drug 373, 377 (1913). The residual offenses.” 495 U.S. at 600. clause, however, requires This emphasis on convictions application of the “serious indicates that “Congress potential risk” standard to an intended the sentencing court idealized ordinary case of the to look only to the fact that the crime. Because “the elements defendant had been convicted necessary to determine the of crimes falling within imaginary ideal are uncertain certain categories, and not to both in nature and degree of the facts underlying the prior effect,” this abstract inquiry convictions.” Ibid. Taylor offers significantly less also pointed out the utter predictability than one “[t]hat impracticability of requiring a deals with the actual, not with sentencing court to an imaginary condition other reconstruct, long after the than the facts.” Int. Harvester original conviction, the Co. of Am. v. Kentucky, 234 conduct underlying that U.S. 216, 223 (1914). conviction. Id. at 2561. Id. at 2562. Finally, the opinion’s penultimate paragraph reads:

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We hold that imposing an the categorical approach, which, as noted, increased sentence under the looks to the “ordinary case.” See Descamps, residual clause of the Armed 133 S. Ct. at 2285 (holding the categorical Career Criminal Act violates approach’s central feature is “a focus on the the Constitution’s guarantee elements, rather than the facts, of a crime”). of due process. Our contrary It is true that Descamps, like § 16(a), looks to holdings in James and Sykes the elements of a crime, not to the potential are overruled. Today’s risk from the crime. Nonetheless, in declining decision does not call into the dissent’s suggestion that it “jettison for question application of the the residual clause . . . the categorical Act to the four enumerated approach,” the Court recognized that there offenses, or the remainder of were “good reasons to adopt the categorical the Act’s definition of a approach,” one of which is “the utter violent felony. impracticability of requiring a sentencing court to reconstruct, long after the original Id. at 2563. conviction, the conduct underlying that B. conviction.” Johnson, 135 S. Ct. at 2562. Thus, Johnson does not prohibit all use of the I read Johnson as setting forth a two-part test: “ordinary case.” It only prohibits uses that whether the statute in issue (1) “leaves grave leave uncertain both how to estimate the risk uncertainty about how to estimate the risk and amount of risk necessary to qualify as a posed by the crime”; and (2) “leaves violent crime. uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id. at Indeed, such an interpretation seems 2557–58. Applying this test, the Court compelled in light of the fact that Johnson did faulted the residual clause for requiring not even mention Leocal v. Ashcroft, 543 potential risk to be determined in light of U.S. 1. In Leocal, the Supreme Court “four enumerated crimes—burglary, arson, recognized the breadth of § 16(b) and noted extortion, and crimes involving the use of that it “simply covers offenses that naturally explosives . . . [which] are far from clear in involve a person acting in disregard of the respect to the degree of risk each poses.” Id. risk that physical force might be used against at 2558 (internal citation omitted). The another in committing the offense.” Id. at 10. Court’s concern was clarified by its reference Finally, I note that perhaps in an attempt to to a prior dissent by Justice Scalia: “The foreclose approaches such as that offered by phrase ‘shades of red,’ standing alone does today’s majority in this appeal, the Supreme not generate confusion or unpredictability; Court concluded by stating that its decision but the phrase ‘fire-engine red, light pink, “does not call into question application of the maroon, navy blue or colors that otherwise Act to the four enumerated offenses [which involve shades of red’ assuredly does so.” Id. include burglary] or the remainder of the at 2561. Act’s definition of a violent felony.” The Court also faulted the residual clause for Johnson, 135 S. Ct. at 2563. tying “the judicial assessment of risk to a III. judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory After such an esoteric discussion, it would be elements.” Id. at 2557. However, the Court easy to lose sight of what is at issue in this specifically stated that it was not abandoning case. Dimaya, a native and citizen of the

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Philippines, was twice convicted of first- encounter one of its lawful occupants, and degree residential burglary under California use physical force against that occupant Penal Code § 459 and sentenced each time to either to accomplish his illegal purpose or to two years in prison. The Department of escape apprehension.”); Lopez-Cardina v. Homeland Security charged Dimaya with Holder, 662 F.3d 1110, 1113 (9th Cir. 2011) being removable because he had been (noting that “Becker itself recognized that the convicted of an aggravated felony under 8 California crime of burglary might not be a U.S.C. § 1101(a)(43)(F), which is a “crime of ‘crime of violence’ under a federal statute violence . . . for which the term of defining the term by reference to the generic imprisonment [was] at least one year.” That crime, even though it is a ‘crime of violence’ statute in turn defines “crime of violence” by under the risk-focused text of § 16(b)”); reference to 18 U.S.C. § 16. Thus, we are Chuen Piu Kwong, 671 F.3d at 877 asked whether the statutory scheme is (reaffirming that “first-degree burglary under somehow so vague or ambiguous as to [Cal. Penal Code] § 459 is a crime of violence preclude the BIA from concluding that because it involves a substantial risk that Dimaya’s two first-degree burglaries under physical force may be used in the course of California law are “crimes of violence” under committing the offense.”). § 16(b). Supreme Court precedent and our case law answer the question in the negative. Nor is there any uncertainty as to “how much risk it takes for a crime to qualify as a violent There is no uncertainty as to how to estimate felony,” Johnson, 135 S. Ct. at 2558, when the risk posed by Dimaya’s burglary crimes. burglary is at issue. Section 16(b) itself The Supreme Court held in Leocal that § requires a “substantial risk” of the use of 16(b) “covers offenses that naturally involve physical force. As noted, neither the Supreme a person acting in disregard of the risk that Court nor the Ninth Circuit has had any physical force might be used against another trouble in applying this standard. See Leocal, in committing an offense.” 543 U.S. at 10. 543 U.S. at 10; Chuen Piu Kwong, 671 F.3d The court emphasized that burglary as “the at 877; Becker, 919 F.2d at 571. Any person classic example” of a crime covered by 16(b) intent on committing a burglary inherently because “burglary, by its nature involves a contemplates the risk of using force should substantial risk that the burglar will use force his nefarious scheme be detected. Is this not against a victim in completing the crime.” Id. what the Supreme Court was referring to See also Taylor, 495 U.S. at 599 (a person has when it noted “we do not doubt the been convicted of a crime for sentencing constitutionality of laws that call for the enhancement “if he is convicted of any crime, application of a qualitative standard such as regardless of its exact definition or label, ‘substantial risk’ to real-world conduct”? having the basic elements of unlawful or Johnson 135 S. Ct. at 2561. unprivileged entry into, or remaining in, a building or structure, with intent to commit a IV. crime”). In Johnson, after nine years of trying to We have consistently followed this line of derive meaning from the residual clause, the reasoning. See United States v. Becker, 919 Supreme Court held that it was F.2d 568, 571 (9th Cir. 1990) (“Any time a unconstitutionally vague. Section 16(b) is not burglar enters a dwelling with felonious or the ACCA’s residual clause; nor has its larcenous intent there is a risk that in the standard proven to be unworkably vague. course of committing the crime he will Over a decade ago, the Supreme Court in Leocal held that § 16(b) “covers offenses that

302 naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense.” 543 U.S. at 10. Moreover, as the Supreme Court recognized, the statute sets forth the test of a “substantial risk that physical force against the person or property of any may be used in the course of committing the offense.” 18 U.S.C. § 16(b). Certainly, there is no unconstitutional vagueness in this case, which involves the hallmark “crime of violence,” burglary. See Leocal, 543 U.S. at 10. The Supreme Court will be surprised to learn that its opinion in Johnson rendered § 16(b) unconstitutionally vague, particularly as its opinion did not even mention Leocal and specifically concluded with the statement limiting its potential scope. I fear that we have again ventured where no court has gone before and that the Supreme Court will have to intervene to return us to our proper orbit. Accordingly, I dissent.

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“U.S. Supreme Court Orders Second Argument in Deportation Case”

Bloomberg Politics Greg Stohr June 26, 2017

The U.S. Supreme Court said it will hear another argument on the constitutionality of a provision in federal immigration law used to deport foreigners convicted of serious crimes. The move suggests that new Justice Neil Gorsuch will break what is currently a 4-4 tie. The case was argued in January, before Gorsuch joined the court. The case could affect the Trump administration’s efforts to step up deportation efforts.

The issue is whether the law’s definition of "crime of violence" is so vague as to be unconstitutional. People convicted of a violent crime are subject to mandatory deportation. The case concerns James Dimaya, a Philippine citizen who was twice convicted of residential burglary in California and has been fighting deportation efforts. The new argument will take place after the court returns from its three-month recess in early October. The case is Sessions v. Dimaya, 15-1498..

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“Supreme Court justices skeptical of deportation order against Bay Area burglar”

Los Angeles Times David G. Savage January 17, 2017

The Supreme Court, hearing arguments If they conclude they were not, their ruling Tuesday in a California deportation case, could complicate efforts by the Trump signaled it may make it harder for the administration to speed up deportations. government to forcibly remove legal President-elect Donald Trump has pledged to immigrants with certain kinds of crimes on accelerate the deportation of immigrants here their record. illegally who have been accused or convicted of crimes. The case involves a native Filipino and longtime legal resident of the Bay Area who The law in this area is not entirely clear. was convicted of breaking into a garage and Beginning in 1988, Congress ordered an empty house in separate incidents. deportation for noncitizens who are convicted of an “aggravated felony,” and it At issue is whether crimes such as home cited specific examples such as murder and burglary, fleeing from the police, money rape. Later the law was expanded to include laundering or child abuse can be considered a general category of “crimes of violence.” “crimes of violence” that trigger mandatory This was defined to include offenses that deportation under federal law. involve a use of physical force or a The ruling could set new rules for the Trump “substantial risk” that force would be used. administration if it seeks to forcibly remove Judges have been divided as to what crimes legal immigrants who have criminal records. call for deportation. Looming over Tuesday’s James Garcia Dimaya was charged with argument was an opinion written two years residential burglary under California law and ago by the late Justice Antonin Scalia. He served more than five years in prison. U.S. spoke for an 8-to-1 majority in striking down immigration officials said those crimes were part of a federal law known as the Armed enough to trigger his deportation under the Career Criminal Act. It called for extra years law. in prison for people convicted of more than one violent felony. But in their questions, the justices cast doubt on whether his crimes were properly In that case, the extra prison term was classified as “aggravated felonies.” triggered by the defendant’s possession of a shotgun. In frustration, Scalia and his

305 colleagues said the law was years old. He went to high school, became a unconstitutionally vague because they could lawful permanent resident and settled in not decide whether gun possession is itself Hayward. evidence of a violent crime. He was convicted and sent to state prison for “You could say the exact same thing about the burglaries of a garage in 2007 and an burglary,” Justice Elena Kagan said Tuesday. empty house in 2009. A midday burglary of a home could result in Immigration judges agreed with deporting violence, she said, but perhaps not if it were Dimaya because his burglary convictions an empty garage or an abandoned house. “So were “crimes of violence” that qualified as it seems like we’re replicating the same kind “aggravated felonies.” of confusion,” she said. But the 9th Circuit Court of Appeals Justice Stephen G. Breyer said judges have disagreed in a 2-1 ruling and said this no way to decide which crimes typically or provision was unconstitutionally vague. usually involve violence. “We’re just left Judge Stephen Reinhardt in Los Angeles guessing,” he said, suggesting a better cited Scalia’s opinion and said the approach would be “look at what the person immigration law had the same flaw as the did.” Armed Career Criminal Act. Judge Kim But Deputy Solicitor Gen. Edwin Kneedler McLane Wardlaw agreed to form the said a home burglary poses a risk of violence. majority, while Judge Consuelo Callahan And he said the court should defer to the dissented. government on matters of immigration. The The 7th Circuit Court in Chicago handed law, he said, calls for a “broad delegation” of down a similar ruling, while the 5th Circuit in authority to executive officials. New Orleans ruled in favor of the This is the argument government lawyers government. made in defense of President Obama’s use of The split prompted the high court to decide executive authority to try to shield millions of the case of Lynch vs. Dimaya. By the time the immigrants from deportation. It is also the decision is handed down, the case will argument that would call for upholding an probably be relabeled Sessions vs. Dimaya, aggressive deportation policy if pursued by to reflect expected change of attorney the Trump administration. general. In their legal briefs, government lawyers said Still pending before the court is a class-action a ruling in favor of Dimaya, the Philippine suit from Los Angeles challenging whether burglar, could have a domino effect and immigrants facing possible deportation may prompt judges to block deportations that be arrested and jailed for more than six were triggered by a host of other crimes. months without a bail hearing. Dimaya was born in the Philippines and came to the United States in 1992, when he was 13

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“When Can Immigrants Be Deported for Crimes? Justices Hear Sides”

The New York Times Adam Liptak January 17, 2017

The Supreme Court considered on Tuesday Philippines who became a lawful permanent how broad the government’s authority is to resident in 1992, when he was 13. In 2007 deport immigrants who commit serious and 2009, he was convicted of residential crimes. burglary. The question was in one sense fairly The government sought to deport him on the technical, concerning whether a federal law theory that he had committed an “aggravated on the subject was unconstitutionally vague. felony,” which the immigration law defines In another sense, though, the argument was to include any offense “that, by its nature, part of a larger debate over the nation’s involves a substantial risk that physical force immigration laws, which President-elect against the person or property of another may Donald J. Trump has pledged to enforce be used in the course of committing the vigorously. offense.” Justice Sonia Sotomayor said the laws have In 2015, in Johnson v. United States, the grown increasingly draconian. Supreme Court ruled that a similar criminal law was unconstitutionally vague. The “We have many more criminal sanctions with United States Court of Appeals for the Ninth harsher sentences now,” she said. “Today Circuit, in San Francisco, said the reasoning what’s at stake is a lot more than what was at in the Johnson case also doomed the stake decades ago.” provision of the immigration law. Edwin S. Kneedler, a deputy solicitor When the Johnson case was before the general, said there was another side to the Supreme Court, the government warned that question. a ruling striking down the law at issue there “What’s at stake can’t be viewed just from would make the law that was the subject of that perspective,” he said. “What’s at stake is Tuesday’s case “equally susceptible” to the fact that the immigration laws are vital to constitutional attack. the nation’s national security and foreign Both laws, the government said then, require relations and the safety and welfare of the courts to identify features of a hypothetical country.” typical offense and then to judge the risk of The case, Lynch v. Dimaya, No. 15-1498, violence arising from them. concerns James Dimaya, a native of the

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Justice Elena Kagan, quoting from Justice E. Joshua Rosenkranz, a lawyer for Mr. Antonin Scalia’s majority opinion in the Dimaya, said the 1951 case concluded the 2015 case, asked how judges are to decide the matter. features of a typical offense. “In our view and in the view of all of the Should they use, she asked, “a statistical lower courts,” he said, “Jordan settles the analysis” of reported decisions? “A survey? question on whether it’s the same standard Expert evidence? Google? Gut instinct?” for criminal deportation.” “So that’s a multiple-choice test,” Justice But Justice Samuel A. Alito Jr. said that Kagan said, suggesting that all of the choices extending scrutiny that applies to criminal risked unconstitutional vagueness. “What do laws challenged for vagueness to civil ones we do?” would be a major step.

Mr. Kneedler said there were important “It certainly is true that deportation has more distinctions between the two cases, notably severe consequences than the typical civil that the one in 2015 arose from a criminal case,” he said. “But there are many other civil prosecution and the one at issue on Tuesday cases that can have a devastating impact on from an immigration proceeding, which is a someone, such as child custody, loss of a civil action. professional license, complete destruction of a business, loss of the home.” In its brief in Tuesday’s case, the government said civil laws are almost never so vague as to violate the Constitution. “Although the court has on occasion tested civil provisions for vagueness,” the brief said, “it has struck down those provisions under the due process clause because they were so unintelligible as to effectively supply no standard at all.” A 1951 Supreme Court decision, Jordan v. De George, indicated that both criminal and immigration laws should be tested against the same constitutional standard for vagueness “in view of the grave nature of deportation.”

Mr. Kneedler asked the justices not to place too much weight on that observation, saying the question had not been raised in the briefs at the time. Justice Anthony M. Kennedy did not seem to think that mattered. “Something has to be briefed before we say it’s the law?” he asked.

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“9th Circ. Rules BIA's 'Crime Of Violence' Standard Vague”

Law360 Daniel Siegal October 19, 2015

The Ninth Circuit on Monday ruled that, after Judge Reinhardt wrote that the definition a recent U.S. Supreme Court ruling, the contained in 18 U.S. Code Section 16(b) and federal test for a “crime of violence” is relied upon by the BIA is subject to the “same unconstitutionally vague, reversing a Board mode of analysis" as the statute in Johnson, of Immigrant Appeals ruling that a citizen of which the Supreme court held left “grave the Philippines can be deported after uncertainty” about what kind of conduct an committing felony burglary. “ordinary case' of a crime involves, and which left uncertainty about how much risk it Petitioner James Garcia Dimaya had asked takes for a crime to qualify as a violent the Ninth Circuit to review the BIA's ruling felony. that a conviction for burglary is categorically a “crime of violence” as defined by federal “The court’s reasoning applies with equal code — a determination which rendered him force to the similar statutory language and deportable under the Immigration and identical mode of analysis used to define a Nationality Act for having been convicted of crime of violence for purposes of the INA,” an aggravated felony. Judge Reinhardt wrote. “In sum, a careful analysis of the two sections, the one at issue In a published opinion, a three-judge panel here and the one at issue in Johnson, shows ruled 2 to 1 on Monday that the statutory that they are subject to the same definition relied upon by the BIA violated constitutional defects and that Johnson Dimaya's due process rights when taken in dictates that [Section] 16(b) be held void for light of the U.S. Supreme Court's ruling this vagueness.” summer in Johnson v. United States, which struck down a different statute's definition of Holly S. Cooper, an associate director of the a “violent felony” as unconstitutionally Immigration Law Clinic at the University of vague. Circuit Judge Stephen Reinhardt, California Davis School of Law, told Law360 writing for the panel, said that the Supreme on Monday that the ruling could impact an Court in Johnson held that a “necessary “extraordinary” number of removal component” of a non-citizen's right to due proceedings, given the number of process of law is a prohibition on vague immigration cases in the Ninth Circuit's deportation statutes. territory.

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Dimaya came to the U.S. from the 16(b) is unconstitutionally vague, and on Philippines in 1992 and was convicted of Monday decided that it is. first-degree residential burglary in both 2007 Circuit Judge Consuelo Maria Callahan and 2009, after which the Department of dissented, however, writing that the Homeland Security sought to have him criticisms levied by the Supreme Court removed from the country for having been against the ACCA in the Johnson ruling do convicted of an aggravated felony, according not apply to Section 16(b), given the to the ruling. fundamental distinctions between the An Immigration Judge agreed with the DHS statutes. that first-degree burglary in California is a “Although the terms 'crime of violence,' “crime of violence” and held that Dimaya 'violent felony' and 'aggravated felonies' may was removable, and the BIA dismissed his appear to be synonymous to a lay person, appeal on the same ground, according to the courts have recognized that, as used in their ruling. statutory contexts, they are distinct terms of On June 2, while Dimaya's appeal was art covering distinct acts with different legal pending, the BIA held in In the Matter of consequences,” Judge Callahan wrote. Francisco-Alonzo that the correct way to Circuit Judges Stephen Reinhardt, Kim determine whether a state conviction is for an McLane Wardlaw and Consuelo M. Callahan aggravated felony crime of violence is to sat on the panel that issued Monday's apply an ordinary-case analysis, by looking opinion. to the risk of violent force present in the "ordinary case" rather than the particular case Dimaya is represented by Andrew Michael in question in considering whether a state Knapp of Immigrant Access to Justice offense is categorically a crime of violence Assistance at Southwestern Law School. under 18 U.S.C. Section 16(b), the federal The government is represented by Nancy statute that defines violent crimes. Canter, Jennifer Khouri, Stuart F. Delery and Weeks later, after Dimaya's appeal had been Jennifer P. Levings of the U.S. Department of already argued, the high court in Johnson v. Justice. U.S. held that imposing an increased The case is James Garcia Dimaya v. Loretta sentence under the "residual clause" of the E. Lynch, case number 11-71307, in the U.S. Armed Career Criminal Act, which allowed a Court of Appeal for the Ninth Circuit. crime to be classified as a violent felony if it posed a serious risk of injury to others, violates the Constitution’s guarantee of due process, and it struck down the residual clause.

The Ninth Circuit ordered additional briefing and oral argument as to whether Section

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