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State of Hawaii v. Trump

United States Court of Appeals, Ninth Circuit

December 22, 2017

STATE OF HAWAII; ISMAIL ELSHIKH; JOHN DOES, 1 & 2; MUSLIM ASSOCIATION OF HAWAII, INC., Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN M. NIELSEN, in her official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellants.

          Argued and Submitted December 6, 2017 Seattle, Washington

         Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson D.C. No. 1:17-cv-00050-DKW-KSC, District Judge, Presiding

          Hashim M. Mooppan (argued), Deputy Assistant Attorney General; Sharon Swingle, H. Thomas Byron III, and Lowell V. Sturgill Jr., Appellate Staff; Chad A. Readler, Acting Assistant Attorney General; Jeffrey B. Wall and Edwin S. Kneedler, Deputy Solicitors General; Noel J. Francisco, Solicitor General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

          Mitchell P. Reich (argued), Neal Kumar Katyal (argued), Colleen Roh Sinzdak, Elizabeth Hagerty, Yuri S. Fuchs, Sundeep Iyer, and Reedy C. Swanson, Hogan Lovells U.S. LLP, Washington, D.C.; Thomas P. Schmidt, Hogan Lovells U.S. LLP, New York, New York; Sara Solow and Alexander B. Bowerman, Hogan Lovells U.S. LLP, Philadelphia, Pennsylvania; Deirdre Marie-Iha, Donna H. Kalama, Kimberly T. Guidry, Robert T. Nakatsuji, Kaliko'Onalani D. Fernandes, and Kevin M. Richardson, Deputy Attorneys General; Clyde J. Wadsworth, Solicitor General; Douglas S. Chin, Attorney General; Department of the Attorney General, Honolulu, Hawaii; for Plaintiffs-Appellees.

          Eric T. Schneiderman, Attorney General; Barbara D. Underwood, Solicitor General; Anisha S. Dasgupta, Deputy Solicitor General; Zainab A. Chaudhry, Assistant Solicitor General of Counsel; Office of the Attorney General, New York, New York; Lisa Madigan, Attorney General; David L. Franklin, Solicitor General; Office of the Attorney General, Chicago, Illinois; Xavier Becerra, Attorney General, Office of the Attorney General, Sacramento, California; George Jepsen, Attorney General, Office of the Attorney General, Hartford, Connecticut; Matthew P. Denn, Attorney General, Delaware Department of Justice, Wilmington, Delaware; Thomas J. Miller, Attorney General, Office of the Attorney General, Des Moines, Iowa; Janet T. Mills, Attorney General, Office of the Attorney General, Augusta, Maine; Brian E. Frosh, Attorney General, Attorney General's Office, Baltimore, Maryland; Maura Healey, Attorney General, Attorney General's Office, Boston, Massachusetts; Hector Balderas, Attorney General, Office of the Attorney General, Santa Fe, New Mexico; Ellen F. Rosenblum, Attorney General, Office of the Attorney General, Salem, Oregon; Peter F. Kilmartin, Attorney General, Office of the Attorney General, Providence, Rhode Island; Thomas J. Donovan Jr., Attorney General, Office of the Attorney General, Montpelier, Vermont; Mark R. Herring, Attorney General, Office of the Attorney General, Richmond, Virginia; Robert W. Ferguson, Attorney General, Office of the Attorney General, Seattle, Washington; Karl A. Racine, Attorney General, Office of the Attorney General, Washington, D.C.; for Amici Curiae States of New York, Illinois, California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, and Washington, the Commonwealth of Virginia, and the District of Columbia.

          Scott A. Keller, Solicitor General; J. Campbell Barker, Deputy Solicitor General; Ari Cuenin, Assistant Solicitor General; Ken Paxton, Attorney General; Jeffrey C. Mateer, First Assistant Attorney General; Office of the Attorney General, Austin, Texas; for Amici Curiae States of Texas, Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, and West Virginia.

          Richard D. Bernstein, Willkie Farr & Gallagher LLP, Washington, D.C., for Amicus Curiae T.A., a U.S. Resident of Yemeni Descent.

          Amir H. Ali, Washington, D.C., as and for Amicus Curiae Roderick & Solange MacArthur Justice Center.

          Nicole G. Berner, Deborah L. Smith, and Leo Gertner, Service Employees International Union, Washington, D.C.; Judith Rivlin, American Federation of State, County and Municipal Employees, Washington, D.C.; David J. Strom, American Federation of Teachers, AFL-CIO, Washington, D.C.; Jody Calemine, Communications Workers of America, Washington, D.C.; Niraj R. Ganatra and Ava Barbour; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; Detroit, Michigan; Mario Martínez, Martínez Aguilasocho & Lynch APLC, Bakersfield, California; Nicholas Clark, United Food and Commercial Workers, Washington, D.C.; for Amici Curiae International Labor Organizations.

          Lynne Bernabei and Alan R. Kabat, Bernabei & Kabat PLLC, Washington, D.C., for Amici Curiae Civil Rights Organizations.

          Aaron X. Fellmeth, Sandra Day O'Connor College of Law, Arizona State University, Phoenix, Arizona; Joseph M. McMillan and Michelle L. Maley, Perkins Coie LLP, Seattle, Washington; for Amici Curiae International Law Scholars and Nongovernmental Organizations.

          Benjamin G. Schatz, Amy Briggs, John W. McGuinness, Sirena Castillo, Matthew Bottomly, Olufunmilayo Showole, Ketakee Kane, and Eve Torres, Manatt Phelps & Phillips LLP, Los Angeles, California, for Amici Curiae Muslim Justice League, Muslim Public Affairs Council, and Council of American-Islamic Relations California.

          Marc A. Hearron, Sophia M. Brill, and Sandeep N. Nandivada, Morrison & Foerster LLP, Washington, D.C.; Jennifer K. Brown and Amanda Aikman, Morrison & Foerster LLP, New York, New York; Purvi G. Patel, Morrison & Foerster LLP, Los Angeles, California; for Amici Curiae Interfaith Group of Religious and Interreligious Organizations and Clergy Members.

          Fatma Marouf, Fort Worth, Texas; Sabrineh Ardalan, Philip L. Torrey, Nathan MacKenzie, Dalia Deak, Niku Jafarnia, and Rachel Kroll, Cambridge, Massachusetts; Geoffrey Hoffman, Houston, Texas; Karla McKanders, Nashville, Tennessee; for Amici Curiae Immigration Law Scholars on Statutory Claims.

          Donald Francis Donovan, David W. Rivkin, Jennifer R. Cowan, and Elizabeth Nielsen, Debevoise & Plimpton LLP, New York, New York; Ilana H. Eisenstein, John M. Leitner, and Ryan S. Macpherson, DLA Piper LLP (US), Philadelphia, Pennsylvania; for Amicus Curiae International Bar Association's Human Rights Institute.

          Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans, Constitutional Accountability Center, Washington, D.C.; Raymond H. Brescia, Albany, New York; Peter Karanjia and Geoffrey Brounell, Davis Wright Tremaine LLP, Washington, D.C.; Victor A. Kovner, Davis Wright Tremaine LLP, New York, New York; for Amici Curiae Members of Congress.

          Christopher J. Hajec, Julie B. Axelrod, Michael M. Hethmon, Elizabeth A. Hohenstein, and Mark S. Venezia, Washington, D.C., as and for Amicus Curiae Immigration Reform Law Institute.

          Cameron C. Russell, David Y. Livshiz, and Karen Wiswall, Freshfields Bruckhaus & Deringer U.S. LLP, New York, New York; Daniel Braun and Peter Jaffe, Freshfields Bruckhaus & Deringer U.S. LLP, Washington, D.C.; for Amicus Curiae The Cato Institute.

          Meir Feder, Rasha Gerges Shields, and Rajeev Mittreja, Jones Day, New York, New York; Catherine Y. Kim, New York, New York; Judith Resnik, New Haven, Connecticut; Burt Neuborne, New York, New York; Lucas Guttentag, Palo Alto, California; for Amici Curiae Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law.

          Lindsay C. Harrison, Thomas J. Perrilli, and Tassity S. Johnson, Jenner & Block LLP, Washington, D.C.; for Amici Curiae Boston University, Brandeis University, Brown University, Bucknell University, Carnegie Mellon University, Case Western Reserve University, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Johns Hopkins University, Massachusetts Institute of Technology, Middlebury College, Northeastern University, Northwestern University, Princeton University, Rice University, Stanford University, Tufts University, University of Chicago, University of Michigan, University of Pennsylvania, University of Southern California, Vanderbilt University, Washington University, Worcester Polytechnic Institute, and Yale University.

          Benna Ruth Solomon, Deputy Corporation Counsel; Edward N. Siskel, Corporation Counsel; Andrew W. Worseck, Chief Assistant Corporation Counsel; Carl Newman, Sara K. Hornstra, and Jonathon D. Byrer, Assistant Corporation Counsel; Department of Law, Chicago, Illinois; Nick Kahlon, Riley Safer Holmes & Cancila LLP, Chicago, Illinois; Ryan P. Poscablo, Brian Neff, and Eliberty Lopez, Riley Safer Holmes & Cancila LLP, New York, New York; Michael N. Feuer, Los Angeles City Attorney, Los Angeles, California; Zachary W. Carter, Corporation Counsel, New York Law Department, New York, New York; Sozi Pedro Tulante, City Solicitor, Law Department, Philadelphia, Pennsylvania; John Danial Reaves, Washington, D.C.; for Amici Curiae Chicago, Los Angeles, New York, Philadelphia, and other Cities and Counties, joined by the U.S. Conference of Mayors.

          Richard B. Katskee, Eric Rothschild, and Kelly M. Percival, Americans United for Separation of Church and State, Washington, D.C.; Elliot M. Mincberg and Diane Laviolette, People for the American Way Foundation, Washington, D.C.; Gillian B. Gillers, Kristi L. Graunke, and Naomi R. Tsu, Southern Poverty Law Center, Decatur, Georgia; Susan L. Sommer, Lambda Legal Defense and Education Fund Inc., New York, New York; Camilla B. Taylor, Lambda Legal Defense and Education Fund Inc., Chicago, Illinois; Sharon M. McGowan, Lambda Legal Defense and Education Fund Inc., Washington, D.C.; Jennifer C. Pizer, Lamba Legal Defense and Education Fund Inc., Los Angeles, California; for Amici Curiae Members of the Clergy, Americans United for Separate of Church and State, Bend the Arc, A Jewish Partnership for Justice, Central Conference of American Rabbis, Lambda Legal Defense and Education Fund Inc., People for the American Way Foundation, Riverside Church in the City of New York, Southern Poverty Law Center, Union for Reform Judaism, and Women of Reform Judaism.

          Andrew J. Pincus, Paul W. Hughes, and John T. Lewis, Mayer Brown LLP, Washington, D.C., for Amici Curiae Technology Companies.

          Pratik A. Shah and Martine E. Cicconi, Washington, D.C.; Robert S. Chang and Lorraine K. Bannai, Ronald A. Peterson Law Clinic, Seattle University School of Law, Seattle, Washington; Eric Yamamoto, Fred T. Korematsu Professor of Law and Social Justice, William S. Richardson School of Law, University of Hawaii, Honolulu, Hawaii; Robert L. Rusky, San Francisco, California; Dale Minami and Donald K. Tamaki, Minami Tamaki LLP, San Francisco, California; Peter Irons, Director Emeritus, Earl Warren Bill of Rights Project, University of California at San Diego, San Diego, California; Leigh-Ann K. Miyasato, Honolulu, Hawaii; Rodney L. Kawakami, Seattle, Washington; Robert A. Johnson and Alice Hsu, Akin Gump Strauss Hauer & Feld LLP, New York, New York; Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California; for Amici Curiae Karen Korematsu, Jay Hirabayashi, Holly Yasui, The Fred T. Korematsu Center for Law and Equality, Civil Rights Organizations, and National Bar Associations of Color.

          Matthew E. Sloan, Richard A. Schwartz, Allison B. Holcombe, Alyssa J. Clover, nad Brittany Ellenberg, Skadden Arps Slate Meagher & Flom LLP, Los Angeles, California; Eric J. Gorman and Jennifer H. Berman, Skadden Arps Slate Meagher & Flom LLP, Chicago, Illinois; Noelle M. Reed, Sarah Grossnickle, and Jonathan Fombonne, Skadden Arps Slate Meagher & Flom LLP, Houston, Texas; Joseph M. Sandman, Skadden Arps Slate Meagher & Flom LLP, Washington, D.C.; Aaron Morris, Immigration Equality, New York, New York; Virginia M. Goggin, New York City Gay and Lesbian Anti-Violence Project, New York, New York; Glenn Magpantay, The National Queer Asian Pacific Islander Alliance, New York, New York; for Amici Curiae Immigration Equality, New York City Gay and Lesbian Anti-Violence Project, LGBT Bar Association of Los Angeles, LGBT Bar Association of Greater New York, Lesbian and Gay Bar Association of Chicago, GLBTQ Legal Advocates & Defenders, and Bay Area Lawyers for Individual Freedom.

          Alan E. Schoenfeld and Scott McAbee, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Peter Margulies, Roger Williams University School of Law, Bristol, Rhode Island; for Amici Curiae Scholars of Immigration Law.

          Dan Jackson, John W. Keker, and R. Adam Lauridsen, Keker Van Nest & Peters LLP, San Francisco, California, for Amicus Curiae Khizr Khan.

          Brett R. Tobin, Goodsill Anderson Quinn & Stifel, Honolulu, Hawaii; Michael B. Keating, Kristyn M. Defilipp, Christopher E. Hart, and Daniel L. McFadden, Foley Hoag LLP, Boston, Massachusetts; for Amicus Curiae Massachusetts Technology Leadership Council Inc.

          Robert A. Wiygul and Mark A. Aronchick, Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, Pennsylvania, for Amici Curiae Immigration, Family, and Constitutional Law Professors.

          James W. Kim and Andrew J. Genz, McDermott Will & Emery LLP, Washington, D.C.; Tina R. Matsuoka, Navdeep Singh, Meredith S.H. Higashi, Rachana Pathak, and Albert Giang, National Asian Pacific American Bar Association, Washington, D.C.; for Amicus Curiae National Asian Pacific American Bar Association.

          Herbert W. Titus, William J. Olson, Robert J. Olson, and Jeremiah L. Morgan, William J. Olson P.C., Vienna, Virginia; Joseph W. Miller, Fairbanks, Alaska; for Amici Curiae Citizens United, Citizens United Foundation, Conservative Legal Defense and Education Fund, U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America Inc., Public Advocate of the United States, Restoring Liberty Action Committee, English First, English First Foundation, and Policy Analysis Center.

          Yolanda C. Rondon, Samer E. Khalaf, and Abed A. Ayoub, Washington, D.C., as and for Amicus Curiae American-Arab Anti-Discrimination Committee.

          Before: Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

         ORDER

         The opinion disposition filed on December 22, 2017, is withdrawn and a new opinion disposition is filed concurrently with this order.

          OPINION

          PER CURIAM.

         For the third time, we are called upon to assess the legality of the President's efforts to bar over 150 million nationals of six designated countries[1] from entering the United States or being issued immigrant visas that they would ordinarily be qualified to receive. To do so, we must consider the statutory and constitutional limits of the President's power to curtail entry of foreign nationals in this appeal of the district court's order preliminarily enjoining portions of § 2 of Proclamation 9645 entitled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats" (the "Proclamation").

         The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President's issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government's interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be "detrimental to the interests of the United States." 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA's prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.

         On these statutory bases, we affirm the district court's order enjoining enforcement of the Proclamation's §§ 2(a), (b), (c), (e), (g), and (h). We limit the scope of the preliminary injunction, however, to foreign nationals who have a bona fide relationship with a person or entity in the United States.

         I. Background[2]

         A. Prior Executive Orders and Initial Litigation

         On January 27, 2017, one week after his inauguration, President Donald J. Trump signed an Executive Order entitled "Protecting the Nation From Foreign Terrorist Entry into the United States." Exec. Order 13, 769, 82 Fed. Reg. 8977 (Jan. 27, 2017) ("EO-1"). EO-1's stated purpose was to "protect the American people from terrorist attacks by foreign nationals admitted to the United States." Id. EO-1 took effect immediately and was challenged in several venues shortly after it was issued. On February 3, 2017, a federal district court in the State of Washington enjoined the enforcement of EO-1. See Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). The Government filed an emergency motion seeking a stay of the injunction, which we denied. See Washington v. Trump, 847 F.3d 1151, 1161-64 (9th Cir. 2017) (per curiam), reh'g en banc denied, 853 F.3d 933 (9th Cir. 2017). The Government later voluntarily dismissed its appeal of the EO-1 injunction.

         On March 6, 2017, the President issued Executive Order 13, 780, which was given the same title as EO-1 and was set to take effect on March 16, 2017. 82 Fed. Reg. 13, 209 (Mar. 6, 2017) ("EO-2"). EO-2 directed the Secretary of Homeland Security to conduct a global review to determine whether foreign governments were providing adequate information about their nationals seeking entry into the United States. See EO-2 § 2(a). EO-2 also directed the Secretary of Homeland Security to report those findings to the President; following the Secretary's report, nations identified as providing inadequate information were to be given an opportunity to alter their practices before the Secretary would recommend entry restrictions for nationals of noncompliant countries. Id. §§ 2(b), (d)-(f).

         During this global review, EO-2 imposed a 90-day suspension on the entry of certain foreign nationals from six Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Id. § 2(c). That 90-day suspension was challenged in multiple courts and was preliminarily enjoined by federal district courts in Hawai'i and Maryland. See Hawai'i v. Trump, 245 F.Supp.3d 1227 (D. Haw. 2017); Int 'l Refugee Assistance Project (" IRAP") v. Trump, 241 F.Supp.3d 539 (D. Md. 2017). Those injunctions were affirmed by the Ninth and Fourth Circuits, respectively. See Hawai'i v. Trump (Hawai'i I), 859 F.3d 741 (9th Cir. 2017) (per curiam); IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc), as amended (May 31, 2017). The Supreme Court granted a writ of certiorari in both cases and left the injunctions in place pending its review, except as to foreign nationals who lacked a "credible claim of a bona fide relationship with a person or entity in the United States." Trump v. IRAP, 137 S.Ct. 2080, 2088 (2017).

         On September 24, 2017, the President issued the Proclamation, which indefinitely suspends immigration by nationals of seven countries and imposes restrictions on the issuance of certain nonimmigrant visas for nationals of eight countries. 82 Fed. Reg. 45, 161, 45, 164-67 (Sept. 24, 2017). The entry restrictions were immediately effective for foreign nationals who 1) were subject to EO-2's restrictions, and 2) lack a credible claim of a bona fide relationship with a person or entity in the United States. Id. at 45, 171. For all other affected persons, the Proclamation was slated to take effect on October 18, 2017. Id. On October 10, 2017, the Supreme Court vacated the Fourth Circuit's opinion in IRAP v. Trump as moot. See Trump v. IRAP, No. 16-1436, ___ S.Ct. ___, 2017 WL 4518553 (U.S. Oct. 10, 2017). On October 24, 2017, the Supreme Court vacated our opinion in Hawai'i I on the same grounds. See Trump v. Hawai'i, No. 16-1540, ___ S.Ct. ___, 2017 WL 4782860 (U.S. Oct. 24, 2017). In vacating our prior decision as moot, the Supreme Court explicitly noted that it expressed no view on the merits of the case. See id.

         B. Plaintiffs' Third Amended Complaint

         On October 10, 2017, Plaintiffs sought to amend their complaint to include allegations related to the Proclamation. The third amended complaint includes statutory claims for violations of the INA, the Religious Freedom Restoration Act, and the Administrative Procedure Act, as well as constitutional claims for violations of the Establishment and Free Exercise Clauses of the First Amendment and the equal protection guarantees of the Fifth Amendment's Due Process Clause. Plaintiffs also moved for a temporary restraining order; after expedited briefing, the district court granted the motion on October 17, 2017. Hawai'i TRO, 2017 WL 4639560, at *1. Relying on our now-vacated opinion in Hawai'i I, the district court found that the Proclamation suffered from the same deficiencies as EO-2. Id. at *1, *9-13. At the parties' request, the district court converted the temporary restraining order into a preliminary injunction on October 20, 2017, rendering it an appealable order. Hawai'i v. Trump, No. CV 17-00050 DKW-KSC (D. Haw. Oct. 20, 2017), ECF No. 390 (order entering preliminary injunction).

         The Government timely appealed. During the pendency of this appeal, we partially stayed the district court's preliminary injunction "except as to foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." Hawai'i v. Trump, No. 17-17168, 2017 WL 5343014 (9th Cir. Nov. 13, 2017). On December 4, 2017, the Supreme Court granted the Government's request for a complete stay pending review of the district court's preliminary injunction. Trump v. Hawai'i, No. 17A550, ___ S.Ct. ___ (Dec. 4, 2017).

         C. The Proclamation

         The Proclamation derives its purpose from the President's belief that he "must act to protect the security and interests of the United States." 82 Fed. Reg. at 45, 161. In furtherance of this goal, the Proclamation imposes indefinite and significant restrictions and limitations on entry of nationals from eight countries whose information-sharing and identity-management protocols have been deemed "inadequate." Id. at 45, 162-67. The Proclamation notes that screening and vetting protocols and procedures play a critical role in preventing terrorist attacks and other public safety threats by enhancing the Government's ability to "detect foreign nationals who may commit, aid, or support acts of terrorism." Id. at 45, 162. Thus, the Proclamation concludes, "absent the measures set forth in th[e] proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of th[e] proclamation [will] be detrimental to the interests of the United States." Id. at 45, 161-62.

         The President selected eight countries for inclusion in the Proclamation based on a "worldwide review" conducted under the orders of EO-2. Id. at 45, 161, 45, 163-64. As part of that review, the Secretary of the Department of Homeland Security established global requirements for information sharing "in support of immigration screening and vetting" that included a comprehensive set of criteria on the information-sharing practices, policies, and capabilities of foreign governments. Id. at 45, 161-63. The Secretary of State then "engaged with the countries reviewed in an effort to address deficiencies and achieve improvements." Id. at 45, 161. The Secretary of Homeland Security, after consultation with the Secretary of State and the Attorney General, ultimately identified 16 countries as "inadequate" based on "an analysis of their identity-management protocols, information-sharing practices, and risk factors." Id. at 45, 163. An additional 31 countries were deemed "at risk" of becoming "inadequate." Id.

         Countries were classified as "inadequate" based on whether they met the "baseline" developed by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence. Id. at 45, 162. The baseline incorporated three categories of criteria: 1) identity-management information; 2) national security and public-safety information; and 3) national security and public-safety risk assessment. Id. Identity-management information ensures that foreign nationals seeking to enter the United States are who they claim to be. Id. This category "focuses on the integrity of documents required for travel to the United States, " including whether the country issues passports with embedded data to confirm identity, reports lost and stolen passports, and provides additional identity-related information when requested. Id. National security and public-safety information includes whether the country "makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, " whether it provides identity document exemplars, and whether the country "impedes the United States Government's receipt of information about passengers and crew traveling to the United States." Id. Finally, national security and public-safety risk assessment focuses on whether the country is "a known or potential terrorist safe haven, " whether the country participates in the Visa Waiver Program, and whether the country "regularly fails to receive its nationals" following their removal from the United States. Id. at 45, 162-63.

         After a "50-day engagement period to encourage all foreign governments . . . to improve their performance, " the Secretary of Homeland Security ultimately determined that Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen continued to be "inadequate" based on their identity-management protocols, information-sharing practices, and risk factors.[3] Id. at 45, 163. The Secretary of Homeland Security also determined that Iraq did not meet the baseline requirements, but concluded that entry restrictions and limitations were not warranted because of the "close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq's commitment to combating the Islamic State of Iraq and Syria (ISIS)." Id.

         On September 15, 2017, the Secretary of Homeland Security submitted a report to the President recommending entry restrictions for nationals from seven countries "determined to be 'inadequate' in providing such [requested] information and in light of the other factors discussed in the report." Id. After consultation with "appropriate Assistants to the President and members of the Cabinet, including the Secretaries of State, Defense, and Homeland Security, and the Attorney General" and "accounting for the foreign policy, national security, and counterterrorism objectives of the United States, " the President decided to "restrict and limit the entry of nationals of 7 countries found to be 'inadequate'": Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. Id. at 45, 164. And although Somalia "generally satisfies" the information-sharing requirements of the baseline, the President also imposed entry restrictions and limitations on Somalia nationals because of "its government's inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory." Id. The President restricted entry of all immigrants from seven of the eight countries, and adopted "a more tailored approach" to the entry of nonimmigrants. Id. at 45, 164-65.

         Section 2's challenged country restrictions and proffered rationales are as follows:

         Chadian nationals may not enter as immigrants or nonimmigrants on business, tourist, or business/tourist visas because, although Chad is "an important and valuable counterterrorism partner of the United States, and . . . . has shown a clear willingness to improve, " it "does not adequately share public-safety and terrorism-related information, " and several terrorist groups are active within Chad or the surrounding region. Id. at 45, 165.

         Iranian nationals may not enter as immigrants or nonimmigrants except under valid student and exchange visitor visas, and such visas are subject to "enhanced screening and vetting." Id. The Proclamation notes that "Iran regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals" following final orders of removal from the United States. Id.

         The entry of Libyan nationals as immigrants and as nonimmigrants on business, tourist, or business/tourist visas is suspended because, although Libya "is an important and valuable counterterrorism partner, " it "faces significant challenges in sharing several types of information, including public-safety and terrorism-related information, " "has significant deficiencies in its identity-management protocols, " does not "satisfy at least one key risk criterion, " has not been "fully cooperative" in receiving its nationals after their removal from the United States, and has a "substantial terrorist presence" within its territory. Id. at 45, 165-66.

         The entry of all Syrian nationals-on immigrant and non-immigrant visas alike-is suspended because "Syria regularly fails to cooperate with the United States Government in identifying security risks, is the source of significant terrorist threats, and has been designated by the Department of State as a state sponsor of terrorism." Id. at 45, 166. Syria also has "significant inadequacies in identity- management protocols, fails to share public-safety and terrorism information, and fails to satisfy at least one key risk criterion." Id.

         Yemeni nationals may not enter the United States as immigrants or nonimmigrants on business, tourist, or business/tourist visas because despite being "an important and valuable counterterrorism partner, " Yemen "faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory." Id. at 45, 166-67.

         Somali nationals may not enter the United States as immigrants, and all nonimmigrant visa adjudications and entry decisions for Somali nationals are subject to "additional scrutiny." Id. at 45, 167. Although Somalia satisfies information-sharing requirements, it "has significant identity-management deficiencies" and a "persistent terrorist threat also emanates from Somalia's territory." Id.

         These restrictions apply to foreign nationals of the affected countries outside the United States who do not hold valid visas as of the effective date and who do not qualify for a visa under § 6(d)[4] of the Proclamation. Id. Suspension of entry does not apply to lawful permanent residents of the United States; foreign nationals who are admitted, paroled, or have a non-visa document permitting them to travel to the United States and seek entry valid or issued on or after the effective date of the Proclamation; any dual national traveling on a passport issued by a non-designated country; any foreign national on a diplomatic visa; any refugee already admitted to the United States; or any individual granted asylum, withholding of removal, advance parole, or Convention Against Torture protection. Id. at 45, 167- 68. Further, a consular officer, the Commissioner of U.S. Customs and Border Protection, or the Commissioner's designee "may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be appropriate and consistent" with certain specified guidelines. Id. at 45, 168.

         II. Justiciability

         We first address several of the same justiciability arguments that we found unpersuasive in Washington v. Trump and Hawai'i I. Once more, we reject the Government's contentions. The Proclamation cannot properly evade judicial review.

         A. Ripeness

         The Government argues that Plaintiffs' claims are speculative and not ripe for adjudication until a specific applicant is denied a visa.[5] We reject this argument. We conclude that the issues in this case are "fit for review, " and that significant hardship to Plaintiffs would result from "withholding court consideration" at this point. Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 808, 812 (2003).

         "Ripeness is peculiarly a question of timing, designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122 (9th Cir. 2009) (alteration and internal quotation marks omitted) (quoting Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000)). This case does not concern mere abstract disagreements. Instead, Plaintiffs challenge the Proclamation as implemented by the Department of State and the Department of Homeland Security. That is permissible. Under the traditional "pragmatic" approach to finality, an order may be immediately reviewable even if no "particular action [has been] brought against a particular [entity]." U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S.Ct. 1807, 1815 (2016) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 150 (1967)).

         Moreover, contrary to the Government's position, the Proclamation's waiver provisions are not a "sufficient safety valve" and do not mitigate the substantial hardships Plaintiffs have already suffered and will continue to suffer due to the Proclamation. Washington, 847 F.3d at 1168-69. Plaintiff Muslim Association of Hawaii, for example, has already lost members as a result of the Proclamation and its predecessors, and expects to lose more. The mere possibility of a discretionary waiver does not render Plaintiffs' injuries "contingent [on] future events that may not occur." Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). "[W]ithholding court consideration" at this ...


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