Federal police officers outside of a federal courthouse in Seattle are pictured. | AP Photo

Federal police officers stand in front of a federal courthouse on Dec. 6 in Seattle as they watch a nearby protest, as three judges met to hear arguments on President Donald Trump’s travel ban. | Ted S. Warren/AP Photo

9th Circuit panel wrestles with president’s restrictions aimed largely at majority-Muslim countries

A federal appeals court gave a somewhat friendlier reception Wednesday to President Donald Trump’s latest travel ban order, just two days after the Supreme Court allowed the policy to be implemented in full for the first time.

A three-judge panel of the 9th Circuit Court of Appeals met in Seattle to hear arguments over an injunction against varied travel restrictions Trump issued in September on citizens of six majority Muslim countries, as well as North Korea and Venezuela.

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Judge Michael Hawkins noted that, unlike two earlier versions of Trump’s travel ban policy, the latest iteration followed a 90-day study about vetting practices for foreign travelers coming to the U.S. and about deficiencies in information-sharing by foreign governments.

“This is a little bit different, isn’t it?” Hawkins said. “The prior two versions of the executive orders were based, a bit, on speculation. We’ve now had a 90-day period in which the government and its agencies … have gone through and, in part based on information provided by the past administration, have determined that certain countries in the world that you can’t tell if person A is really person A. What’s wrong with that? … You would trust Kim Jong Un to say this person is really this person? You got to take him in?”

A lawyer representing the State of Hawaii in its challenge to the ban, Mitchell Reich, noted that despite the Trump administration’s professed concern about verifying visa applicants identities, the new policy allows many people from the affected countries to come in anyway.

“The government has not identified any respect in which the existing, case-by-case vetting process is failing,” Reich said. “For each of these countries, the government is allowing many of these people in.”

There was little discussion at the court session of Trump’s campaign promise to ban Muslims from entering the U.S. Critics contend the new travel ban, like its predecessors, is an attempt by the president to follow through on that promise.

At one point, another attorney for Hawaii, Neal Katyal, seemed to take that issue entirely off the table.

“I don’t think you need to get into anything about the president’s intent here,” the lawyer said.

However, later in the argument Katyal appeared to allude to tweets Trump sent last week containing anti-Muslim videos posted earlier by a far-right British nationalist group.

“The record has only gotten worse since we last met,” Katyal said. “The president has not moved away from his campaign promises . You can even look at what was said last week as a kind of telling indication and a way of bridging the past to the present.”

Much of the argument Wednesday seemed to turn on whether a provision in federal law allowing the president to suspend the entry of certain groups of foreigners deemed “detrimental” to the U.S. requires that those denied entry actually appear to pose some danger or whether Trump can leverage that provision to seek greater cooperation from foreign countries in sharing information about those seeking to travel to the U.S.

Justice Department lawyer Hashim Mooppan said many previous presidents used the same power to block travel to achieve foreign policy goals.

“This is precisely what, for example, President Carter found in connection with respect to the Iranian hostage crisis and what President Reagan found with respect to a diplomatic dispute with Cuba,” Mooppan said. “There was no argument, no suggestion that the nationals themselves presented any harm.”

While not mentioning Trump directly, Judge Richard Paez suggested that was different from the president’s repeated claims that his policy is a way to keep terrorists out of the U.S.

“The argument that we see, that we’ve seen throughout these various iterations of the proclamation and the prior executive order is that in certain countries there [are] Muslim radicals who we do not want to enter this country and that exercising the authority under [the law] is a way of keeping them out,” Paez said.

“Your honor, the proclamation’s findings are different from what you just articulated,” Mooppan said, arguing that that was more of an end goal of the effort than something that would be directly achieved through the travel restrictions.

Hawkins noted that the administration is continuing to argue that while the legal provision used to issue the travel limits refers to blocking “entry” into the U.S., officials are entitled to stop issuance of visas to people whom the president won’t admit when they reach the border or another port of entry.

“We’re back to the Tom Hanks example of being stateless inside the airport terminal,” the judge said, referring to the 2004 film, “The Terminal,” about a fictional foreign tourist trapped at JFK Airport after being denied permission to enter or leave the country.

“It is the traditional practice that if someone is not admissible, they don’t get immigrant visas,” Mooppan said.

The latest travel ban policy placed what the administration calls “tailored” restrictions on travelers from Chad, Iran, Libya, Somalia, Syria and Yemen — as well as North Korea and Venezuela.

Judges in Hawaii and Maryland issued orders blocking much of Trump’s latest move. The 9th Circuit panel that heard the case Wednesday issued an order last month allowing more of the restrictions to kick in, but excluding individuals with “bona fide,” family, business or educational ties to the U.S.

However, the Supreme Court issued a ruling on Monday allowing the entire policy to be enforced until the current litigation is resolved. Two of the court’s liberal justices, Sonia Sotomayor and Ruth Bader Ginsburg, dissented.

All three judges on the 9th Circuit panel are appointees of President Bill Clinton.

The judge overseeing the arguments, Ronald Gould, noted the Supreme Court’s instruction to move on the case with dispatch.

“We will try to get an opinion out as soon as practical,” he said. “I think the Supreme Court has asked us, so we shall comply.”

Source link : https://www.politico.com/story/2017/12/06/trump-travel-ban-appeals-court-285254

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Publish date : 2017-12-07 02:00:06

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