STATE OF HAWAII; ISMAIL ELSHIKH; JOHN DOES, 1 & 2; MUSLIM ASSOCIATION OF HAWAII, INC., Plaintiffs-Appellees,
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.
and Submitted December 6, 2017 Seattle, Washington
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
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
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
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
H. Ali, Washington, D.C., as and for Amicus Curiae Roderick
& Solange MacArthur Justice Center.
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
Bernabei and Alan R. Kabat, Bernabei & Kabat PLLC,
Washington, D.C., for Amici Curiae Civil Rights
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
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.
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
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.
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
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
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.
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.
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.
J. Pincus, Paul W. Hughes, and John T. Lewis, Mayer Brown
LLP, Washington, D.C., for Amici Curiae Technology Companies.
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
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.
Jackson, John W. Keker, and R. Adam Lauridsen, Keker Van Nest
& Peters LLP, San Francisco, California, for Amicus
Curiae Khizr Khan.
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.
A. Wiygul and Mark A. Aronchick, Hangley Aronchick Segal
Pudlin & Schiller, Philadelphia, Pennsylvania, for Amici
Curiae Immigration, Family, and Constitutional Law
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
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
Before: Michael Daly Hawkins, Ronald M. Gould, and Richard A.
Paez, Circuit Judges.
opinion disposition filed on December 22, 2017, is withdrawn
and a new opinion disposition is filed concurrently with this
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 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, 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.
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.
Prior Executive Orders and Initial Litigation
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.
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),
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
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
Plaintiffs' Third Amended Complaint
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).
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,
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.
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.
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.
"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. 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)."
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.
2's challenged country restrictions and proffered
rationales are as follows:
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.
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.
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.
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.
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.
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.
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) 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.
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.
Government argues that Plaintiffs' claims are speculative
and not ripe for adjudication until a specific applicant is
denied a visa. 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).
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)).
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