The Supreme Court is set to hear oral arguments sometime this spring on the Ninth Circuit Court of Appeals decision, which the federal government had appealed in the summer of 2017. The Supreme Court held off on hearing arguments in the fall of 2017 because it wanted to see what would happen with the case before the Fourth Circuit Court of Appeals, with the hope that it could resolve all of the issues with one decision.

On this past February 15th, the Fourth Circuit Court of Appeals issued a published decision in the case of International Refugee Assistance Project v. Trump. In that 285-page decision, nine of the judges were in the majority and three dissented (or disagreed) with the findings of the court. The majority decision of the Fourth Circuit noted that the White House had issued two executive orders (on January 27th, 2017 and March 6th, 2017) and one proclamation (on September 24th, 2017). Each time, lawsuits were filed both in the State of Maryland, as well as in the State of Hawaii, requesting a preliminary injunction against the provisions of the policies stated in those documents within hours of their publication. Each time, the federal government appealed the orders of the US district courts granting the preliminary injunctions.

On December 4th, 2017, the Supreme Court granted a stay requested by the federal government of the preliminary injunctions against the proclamation until the pending appeals before the Ninth and Fourth Circuits could be decided. On December 22nd, 2017, the Ninth Circuit affirmed the decision of the US District Court of Hawaii and that decision was appealed by the feds to the Supreme Court.

The Fourth Circuit, on this past February 15th, found that the proclamation, as well as the executive orders, violates the Establishment Clause of the US Constitution. Specifically, the court found that “the proclamation is unconstitutionally tainted with animus toward Islam.” That conclusion was based on a review of the “official statements from President Trump and other executive branch officials,” as well as the words in the proclamation. Basically, the tweets revealed the true reason for the proclamation – to give preference to Christian immigrants and visitors over Muslims. The proof of that preference was in declaring that Somalia, which had complied with the provisions set out in the proclamation for identifying citizens and their status, was on the list of countries not permitted to enter the US. However, Venezuela, which failed to meet the standards set out in the proclamation, is not one of the countries listed in the restricted list.

The feds argued in writing that the persons filing the lawsuits did not have the right (known as “standing”) to file the lawsuit because they had not proven that they were not allowed to practice their religion and that the case was not “ripe” for decision because they had suffered no injury. However, the Fourth Circuit found that the persons who filed the lawsuits had standing to sue and “as members of the disfavored religion, are the ‘victims of this alleged religious intolerance’ who are suffering ‘[f]eelings of marginalization and exclusion.’” The Fourth Circuit also found that “they are experiencing prolonged separation from close family members who have been rendered categorically ineligible for visas.”

The federal government’s argument that the case was not “ripe” was declared moot because, since December 4th, 2017, visas were denied for relatives who were trying to enter the US based on their country of origin and not because of any individualized basis. Indeed, the court found that the denial of the visas were not really necessary; just the exercise of the restrictions in the proclamation after December 4th, 2017 ensured that “family members are now categorically inadmissible unless they meet the high standard for a waiver.” So, “their relatives go through the same individualized vetting process that the executive branch applies to nationals from all other countries – an individualized vetting process that has already been denied them.”

The coffin nail for the feds is the barrage of tweets that come out of the White House. The Fourth Circuit stated that “an objective observer could conclude that the president’s repeated statements convey the primary purpose of the proclamation – to exclude Muslims from the US. In fact, it is hard to imagine how an objective observer could come to any other conclusion when the president’s own deputy press secretary made this connection express: he explained that President Trump tweets extremist anti-Muslim videos as part of his broader concerns about “security,” which he has “addressed … with … the proclamation.”

Now we wait to see what happens to the appeal before the Supreme Court, which has indicated that it will issue a decision sometime this coming June.

Author Profile

Linda Dominguez, Esquire
Linda A. Dominguez is the founder of L A Dominguez Law, which opened its doors in March 2006. The focus of the firm is on immigration law and LGBTQ issues. Linda has been practicing law since November 1989 and spent more than 16 years as a federal prosecutor. She is licensed in Maryland, Pennsylvania, as well as being admitted to the U.S. Supreme Court, U.S. Courts of Appeals for the 3rd, 4th, and 7th Circuits, and the U.S. District Court for the District of Maryland. Linda has one precedent decision issued by the Fourth Circuit Court of Appeals, Cordova v. Holder, 759 F.3d 332 (4th Cir. 2014), on an asylum case from El Salvador.