Civil rights groups, state officials question revised travel ban

President Donald Trump signed a revised and scaled-down travel ban March 6 aimed at allaying the constitutional concerns of a federal appeals court in San Francisco.

But several civil rights groups and elected Democratic officials said they continue to have concerns about the ban, which bars visitors from six predominantly Muslim countries, and suggested that more legal challenges may be in the offing.

“The president’s executive order imposing another travel ban based on religion and suspending our refugee program is yet another discriminatory, misguided effort with no basis in fact,” said U.S. Sen. Dianne Feinstein, D-Calif.

The state attorneys general of Washington, New York and Virginia, who previously filed lawsuits challenging an earlier version of the ban, said they are reviewing the order to determine their next steps.

The new ban takes effect March 16. It replaces an earlier, broader order issued by Trump on Jan. 27 that also applied to Iraq. The previous measure was blocked by federal courts, first by a trial judge in Seattle and then by a unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco on Feb. 9.

The new order bars entry to the U.S. by certain visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days while the Trump administration reviews screening procedures. It also halts the U.S. refugee admissions program for 120 days.
Unlike the earlier measure, the revised order does not apply to people from Iraq or to those from the six other counties who have visas or legal permanent U.S. residency. It removes an indefinite ban on Syrian refugees and a preference for refugees who are from a religious minority in their countries. That preference was interpreted by some to favor Christians.

The original order resulted in chaos at U.S. airports and widespread protests. A number of lawsuits were filed in federal courts around the nation to challenge the Jan. 27 order. The only suit to reach a federal appeals court was one filed by the states of Washington and Minnesota.

In that case, the U.S. Department of Justice filed an unsuccessful emergency appeal to the 9th Circuit after losing before U.S District Judge James Robart in Seattle.

In its Feb. 9 decision, the appeals court said the executive order appeared to violate the constitutional due process rights of certain groups of people, including permanent U.S. residents, visa holders from the targeted countries and undocumented individuals already in the United States.

The appeals panel also said the two states had raised serious constitutional questions in their claim of religious discrimination against Muslims, but said it was not deciding that question for the time being.

In another lawsuit filed by the state of Virginia, however, a federal judge accepted the religious discrimination argument and issued a preliminary injunction protecting Virginia residents and students from the Jan. 27 ban.

State Attorneys General Bob Ferguson of Washington, Eric Schneiderman of New York, and Mark Herring of Virginia said the scaled-down order vindicated their lawsuits, but said they were reviewing it to determine whether to take additional steps such as a new lawsuit.

“The president has capitulated on numerous key provisions blocked by our lawsuit, including bans on green card (permanent residency) holders, visa holders and dual citizens, an indefinite ban on Syrian refugees, and explicit preferences based on religion,” Ferguson said.

“We are carefully reviewing the new executive order to determine its impacts on Washington state and our next legal steps,” he said. Ferguson said he expects to decide on next steps in a few days.

“My office is closely reviewing the new executive order, and I stand ready to litigate again” if needed, Schneiderman said.

The U.S. Department of Justice argued in a filing in Robart’s court in Seattle March 6 that the revised order “extinguishes the need” for emergency judicial review and “eliminates the potential constitutional concerns identified by the 9th Circuit.”

The executive order itself refers to the 9th Circuit decision and states that the order “expressly excludes from the suspensions categories of aliens that have prompted judicial concerns.”
U.S. Homeland Security Secretary John Kelly said in a statement that the order “will make America safer, and address long-overdue concerns about the security of our immigration system.”

“We must undertake a rigorous review of our visa and refugee vetting programs to increase our confidence in the entry decisions we make for visitors and immigrants to the United States,” Kelly said.

The American Civil Liberties Union claimed the new order is still unconstitutionally based on religious bias. “The Trump administration has conceded that its original Muslim ban was indefensible,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project.

“Unfortunately, it has replaced it with a scaled-back version that shares the same fatal flaws.

The only way to actually fix the Muslim ban is not to have a Muslim ban,” Jadwat said in a statement.

House Democratic Leader Nancy Pelosi, D-San Francisco, called the order “the same ban, with the same purpose, driven by the same dangerous administration that weakens our ability to fight terror.” The White House “has desperately sought to invent an after-the-fact justification for its baldly prejudiced and unconstitutional Muslim and refugee ban,” Pelosi said.

California Attorney General Xavier Becerra said, “President Trump’s decision to rescind his January 27 travel ban confirms what we all knew: the travel ban was unconstitutional and un-American. My team is carefully reviewing the legality of the administration’s revised ban,” Becerra said.

Christine Sinha, a lawyer at San Francisco-based Asian Americans Advancing Justice, said, “We should not be distracted by the slightly different packaging of today’s executive order — this is still a Muslim ban … We are not fooled, and the courts will not be either.” San Francisco Mayor Ed Lee said, “In San Francisco, we will continue to stand side-by-side with our Muslim friends and members of all immigrant communities.”

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