On September 25th, 2017, President trump released Travel Ban 3.0. The list of banned visitors from countries now included Yemen, Chad, together with other five countries. The inclusion of Chad aroused immediate controversy in the media, considering its status as a long-term US ally in fighting against terrorism. 1 In contrast, news did not appear to be surprised by the inclusion of Yemen. The main reason perhaps lies in the well-reported political instability in this country since 2011.

Yemen has gone into a stage of transformation since the Arab spring, where its longtime authoritarian president, Ali Abdullah Saleh, was forced to hand over power to President Abdrabbuh Mansour Hadi, his deputy, in 2011. Hadi then had to juggle among various political and social problems, including attacks by al-Qaeda, the Houthi movement led my Shia Muslim minority, the continuing loyalty of many military officers to Saleh, as well as unemployment and food insecurity. The Iranian-backed Houthi movement was at one time joined by Saleh to fight together against Hadi, who was backed by Saudi Arabia and eight other mostly Sunni Arab states, together with support from the US, UK and France. However, the bondage proved quite fragile between Houthi militia and Saleh and there was soon a rift between these them. On December 2nd, 2017, Saleh appeared on television to show some kind intention towards Saudi Arabia, which, got himself assassinated by a Houthi rebel militia at his home in the capital, Sanaa.

War always imposes tremendous cost at civilians. According to BBC, the ongoing conflict left 20 million people in need of humanitarian assistance and created “the world's largest food security emergency.” Only 45% of the 3,500 health facilities are fully functioning, who have struggled to cope with the world's largest cholera outbreak, which has “resulted in more than 913,000 suspected cases and 2,196 deaths since April 2017.” 2 In addition to these humanitarian catastrophes, what happens in Yemen deeply worries the West. According to BBC, the most dangerous branch of al-Qaeda and the emergence of IS affiliates in Yemen is a serious concern.

Now looking back at President’s Trump decision on banning all people from Yemen, or on travel ban in general, is he right? It is certainly not right if we think humanitarianly. This banning of country residents is not unlike preventing Jewish refugees from coming to America after World War II for fear of Nazis. Just like people now lamented this decision that led to more Jews dying, will this decision in banning Yemen and other countries, let Americans or the world regret forty years later? Yet American history is never lack of these similar foreign policies and lack of institutional constraints against these policies. The active approval of travel ban from the supreme court is not surprising.

We, as an immigration law firm, value national security as much as upholding the American values -- its tolerance and globalism. We also understand these two often come into conflict with each other. The current right-leaning administration chooses to prioritize the former by imposing a simple fix: banning the whole country to increase a sense of security. Yet, we hope we won’t forget the other important values that we also hold. There needs to be a check and balance on values as well.

1 There has been continuous follow-up reports about the reason why Chad is included. Just give a few examples, http://www.slate.com/blogs/the_slatest/2017/10/19/trump_put_chad_on_the_travel_ban_because_of_passport_paper.html; https://www.theguardian.com/us-news/2017/oct/18/trump-travel-ban-chad-passport-paper
2 All the statistical facts come from BBC news. http://www.bbc.com/news/world-middle-east-29319423

Huirong Jia
​HMA Legal Intern

#MuslimBan 3.0 is out. I'm very concerned, because I think it's legal.

I hope I'm wrong. And that doesn't mean don't resist. But this ban is different than the two prior ones.

First - the affected countries are Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Each country has their own restrictions - but no new immigrant visas for any of these countries except Venezuela. For other nonimmigrant visas, it varies - see this fact sheet for details.
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Second - Nationals from affected countries who are in the US already, or have a visa already, have a green card, or are granted asylee status, or are admitted refugees are NOT affected by the new ban.
Third - there are much more express guidelines for waivers of the travel restrictions if one is subject to the ban. And you'll need a waiver: unlike before, EO-3 travel restrictions are indefinite.
Fourth - the administration makes much ado about how it has created a vetting procedure that was the first of its kind in US history. That's a load of horsecrap. You don't put new tires on a car and claim you invented the automobile.
So here's why I'm worried. Since this whole #MuslimBan saga began - back when Trump called for a "total and complete shutdown on Muslim immigration" - there has been an unbroken chain of religious animus. Trump himself kept sinking his own travel bans with his ridiculous tweets and posturing. Coupled with incompetence in implementation and crudity of the actual Executive Orders, it was short work for most courts in this country to ban the bans.
While I have no doubt the same religious animus flows into EO-3, this one is different.

• EO-1/2 weren't based on specific factfinding. EO-3 is.
• EO-1 wasn't tailored. EO-2 was somewhat tailored. EO-3 is much more narrowly tailored.
• EO-3 includes two token non-Muslim majority countries: Venezuela and North Korea. Legally, this makes it much more difficult to prove religious animus, despite Venezuela's ban only affecting national leadership and their families, and North Korea - well, no one's coming from North Korea anyway.
• There was a crude waiver process in EO-2, but a more detailed one in EO-3. Legally, this makes it harder to challenge since a court could find no right to bring challenge until the waiver process was completed.

A few months ago the 4th Circuit decided to keep EO-2 banned, but it was a fractured decision across 13 judges. The one that worried me the most was Judge Niemeyer. He dissented (meaning he would have upheld EO-2) but his reasoning was not unsound. I can see 5 Supreme Court justices siding with him: his position gave ample reason to not even get to the question of religious animus. That means the judicial spotlight remains dim, which increases the likelihood a court will not find a reason to strike EO-3. Add that to the fact that EO-3 does not suffer from many of the same deficiencies as its predecessors, and you've got a recipe for success.
The courts banning of EO-1 and EO-2 was heartwarming. But most folks don't know the number of things that had to go wrong for the administration in order for those bans to be banned. The law of the land is, and has been, that the President does have sweeping (though not unbridled) authority to ban entry of noncitizens. While that's eroded somewhat in recent years, it's still very solid law.
I hate to say it. But EO-3 is what a legal Muslim ban would look like. Again - I hope I'm wrong.
Resisting EO-3 will look different. Like EO-2, it won't be fought in the airports, but at consulates. We are going to have to create resources to navigate through the waiver process, backed up with federal court action at the hint of delay. Those with the know-how from the State Dept can weigh in on how to shed light on verifying that the administration did what it said: talked to every country to determine whether vetting procedures were sufficient.

​I'm concerned that a legal challenge to EO-3 - if not successful - may either embolden the administration, create bad law, or both.

The 4th Circuit opinion keeping the Muslim Ban blocked - with concurrences and dissents - is a stage for a final showdown before the Supreme Court. A full panel of 13 judges ruled, 10 in favor of upholding the block on the ban, but not all for the same reasons, with 3 dissenting.

As one of the volunteer airport lawyers at Dulles, I was initially very excited yesterday to hear the ruling. After reading everything, though, I'm much more reserved, and not as excited. Because if (when?) this goes before the Supreme Court, the fragmented spectrum of rulings from the Court provides enough material for 5 Supreme Court justices to allow the travel ban to be reinstated.

I hope I am wrong. The 9th Circuit still has to rule. But the constitutional question on the limits of executive power has, to my knowledge, never been tested in this particular way. Perhaps the Supreme Court will deny certiorari and not take it up, but it likely will, eventually. And it should. Because there will be more bans, more walls, and more raids.

Analysis of Fourth Circuit Opinion

The majority opinion boils down to the words "bona fide." It is based on these words that the court was able to choose the appropriate Constitutional spotlights, with appropriate intensity and wattage, to strike down the government's argument.

After explaining the procedural posture of the case, the Court found that review of the Establishment Clause argument was appropriate. Next, it found at least one plaintiff to have standing (the legal right to bring the lawsuit) and rejected government arguments attempting to shield the order from judicial review.

Next was the question of what constitutional test - spotlight - to choose. The starting point was the Mandel test - which asks only if the action was "facially legitimate and bona fide." The court found while the second Executive Order (EO-2) was facially legitimate, it wasn't bona fide, because of the mountain of evidence of religious animus, both pre- and post-inauguration.

The Court elegantly joined two lines of cases to find that because EO-2 wasn't bona fide, it could apply the much stronger Lemon test. Lemon allowed the Court to peer behind the order and consider all the statements made by Trump and his advisors. While there may have been a facially legitimate/secular purpose of national security, the primary purpose of EO-2 was to discriminate against Muslims, and therefore, it fails. Of note: the Court was careful to note that this conclusion only made sense in this highly unique set of circumstances, where you had a single actor (Trump) saying he wanted to discriminate, and then going ahead and more or less immediately doing it.

Concurring opinions expanded the findings - no doubt to be relied on by the liberal Supreme Court justices like Kagan, Sotomayor, and Ginsberg. For example, one concurring opinion found that Trump overstepped his authority in even enacting such a ban whether the Establishment Clause was violated or not, because there had to be a "finding" that banning entry was in the national interest, and he made no such credible finding.

Judge Neimeyer's dissent, on the other hand, predictably found that the majority completely misread Mandel, and there was no justification to apply strict tests like the Lemon. In other words, they chose much dimmer (and fewer) spotlights.

Judge Shedd's dissent went further, and found that the courts shouldn't even question national security measures. For all intents and purposes, Shedd relied on one of the Supreme Court's most odious and repudiated (but still unreversed) decisions: Korematsu (the Japanese internment case). And Judge Agee went even further and found no plaintiff even had the right to bring the suit in the first place, neatly avoiding the entire messy Establishment Clause fight altogether. 

Between 13 judges, then, battle lines were drawn.

Why I'm Worried

Niemeyer's dissent is well-reasoned. True, he may have overstated the majority opinion somewhat, in that it's not that the majority created a new rule of law (read: spotlight), it comes down to whether Mandel allows that spotlight once you find that the EO isn't bona fide. But Niemeyer is not clearly wrong - and hence my subdued tone. I think Shedd and Agee were wrong: standing clearly exists, and relying on Korematsu in substance would be a legacy-destroying move. 

The bottom line, however, is that the majority opinion did go through some legal maneuvering to turn on the Lemon spotlight. I believe it was correct, but I'm not sure the Supreme Court will agree. There is far too much precedent mandating a hands-off deferential approach to matters of immigration and national security, and this EO is both.

A justice like Alito is a staunch supporter of religious freedom, but I'm not convinced he will do so in the immigration/national security context. Thomas will likely uphold the Muslim ban, and all the tools are there in Niemeyer's opinion to give reason for Chief Justice Roberts to uphold it as well. Justice Kennedy isn't much a fan of the Lemon test, though he is troubled by religious animus. Justice Breyer believes in deference, and is acutely sensitive to judicial overreach, though he will probably join the liberal wing of the Court in a case like this. And while recently appointed Justice Gorsuch is new, his originalist and literalist constitutional philosophy will gravitate towards upholding the ban.

So if Roberts and Kennedy uphold the ban, a 5-4 decision striking the Fourth Circuit's decision is a very real possibility. I sincerely hope the Ninth Circuit, in its upcoming ruling, picks apart Niemeyer's dissent, because the majority opinion of the Fourth Circuit didn't.

Takeaways

First, it was important that to make out an Establishment Clause violation, "feelings of marginalization" suffice to show injury. That means it becomes *incumbent* on us all, individually and collectively, not to let invidious discrimination slide. If we don't record it in public consciousness, the courts will have no measure to find injury. 

Second, take interest in who our judges are. Collectively, our panoply of judges is more important than who the President is.

Third, be proud of our Constitution and doctrine of separation of powers. I would be remiss if I didn't express what it felt like to read this cold, calculated legal analysis that protected the rights of my brothers and sisters in faith. After seeing examples of state-sanctioned discrimination in legal regimes around the world, I was filled with a sense of pride in our system that protects the rights of everyone.

Fourth, as one of the volunteer airport lawyers in the wake of these travel bans - holding our elected officials to the test is what made today's ruling possible. We fought for travelers from 7 countries, but were protecting something much larger that was under attack. Plaintiffs were found, and a legal strategy emerged. Many things had to fall into place in exactly the right way to make today's ruling possible.

Fifth, this isn't over. The administration is driven by an ideology. Even if they lose this battle, they are busy stacking the judiciary with judges of their liking, and building narratives correlating immigration and Muslims with crime and terrorism. Two years from now, the exact same ban could resurface, and the result would be opposite. 

​No doubt, this is a stress test on our system of government. So far, it seems to be holding up. Law is the glue that holds our society together, and the disintegration of the rule of law will affect all of us, whether we like it or not.

I work with a bunch of amazing lawyers.

One of the challenges to the #MuslimBan 2.0 is pending in the US Court of Appeals for the Fourth Circuit. A group of 302 lawyers across 25 airports signed on to an amicus brief ("friend of the court") to detail the chaos and due process violations that occurred in the wake of the first Muslim ban in January.

Along with my colleagues across the country, we jumped at the chance to swear out declarations to shed light on what happened at airports around the country (and some internationally) for the benefit of the learned appellate judges.

Besides the obvious chaos, here's just some of what my colleagues saw around the country:

1. Widespread denial of access to counsel in nearly every airport.
2. Widespread reports of CBP officials caught completely unprepared with the order, and having no idea what to do.
3. Outright defiance of federal court orders (deporting a student after judge's temporary restraining order; not allowing access to counsel even when ordered to by judge)
4. Lawyers reporting specific laws they could have used to reduce detention times and facilitate processing - ie, *helping* CBP officials to their jobs - but were denied the opportunity to do so.

As signatory amici to the court, we wrote to the Fourth Circuit:

Thank you all for stepping up to protect due process. I am proud to stand with you all.

The American Anti-Arab Discrimination Committee (ADC) invited attorney Hassan Ahmad today to do a "deep dive" into the Muslim Ban 2.0 today, going over a lot of the policy considerations and details of the new ban. 

• The ban is a bigotry-flavored self-licking ice cream cone: national security experts and DHS have all agreed and stated that such bans are misguided and actually undermine national security, yet the administration persists.
• Enforce a ban, then create the mechanism to create the facts necessary to justify it. How? By publishing regular immigration statistics, and coupling it with reporting on foreign-born terror-related crime focused on Muslim perpetrators. Over time, this will build up an alternative factual narrative the administration hopes will defeat legal challenge.
• It weakly attempts to sever the Islamophobic rhetoric of the campaign trail and the "Muslim Ban" moniker by simply stating that this is not a Muslim ban. This may be the best indication yet that it is, in fact, a Muslim ban.
• It comes down with the implementation memo to DHS, which calls for rigorous enforcement of inadmissibility laws at the ports of entry. This is the counterpart to the calls for rigorous enforcement inside the US, which led to the ICE raids we've seen.
• The message is still the same: "We" don't want "you" here. Regardless of the shade of lipstick on this pig.

Follow attorney Hassan Ahmad on Twitter at @HMAesq.

​Watch the video:

The new executive order on immigration, dubbed "MuslimBan 2.0" signed March 6, 2017 presents a more nuanced, but still ultimately unconstitutional affront to religious liberty. Reviewing the redline version prepared by the ACLU of Massachusetts, coupled with the implementing memorandum to DHS, and the letter from AG Jeff Sessions and S-DHS Kelly to President Trump, a few themes emerge.
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1. How the new EO works (super briefly): Iraq is off the list. Effective date for remaining 6 countries is 3/16/17. Green card holders excluded from the new ban. Visa holders who have a valid visa as of 3/16/17 are also excluded. Refugee resettlement still paused for 120 days, but now includes Syria (which was indefinitely suspended in the old order) and does not include people formally scheduled for resettlement already. The cap on refugee resettlement is still cut to 50,000. But there are a number of exemptions to those who would otherwise be affected - these 'waivers' existed before but the new order goes into greater detail on what might constitute a waiver. Dual nationals are now exempted. But the EO still provides a mechanism to ban nationals of other countries, in a very similar manner, down the road.
2. The Self-Licking Ice Cream Cone: The MuslimBan 2.0 is an ex post facto creation of justification of the need for the ban. Like I said about the Muslim Registry, it is a bigotry-flavored self-licking ice cream cone, a scheme that exists only to serve itself. Enforce a ban, then create a mechanism to create the facts to justify it. This, even though the (actual, non-alternative) facts *from within DHS* thus far indicate that citizenship is an unreliable indicator of terror threat, and 10 high-ranking current and former national security officials swore under penalty of perjury that such a ban not only doesn't do what it purports to do, it actually undermines US national security.
3. Propaganda Clauses: The order creates reporting benchmarks for future factual justification of its need. The joint Sessions/Kelly statement comes at the issue from the administration's side, saying "we would benefit from a pause on immigration from affected countries," essentially parroting Trump's campaign rhetoric back to him. Trump directs Kelly to start publishing statistics on immigration - number of visas issued, green cards granted, etc. - all broken down by nationality. Every 3 months. Plus, reports on the costs of running the refugee admissions program. Simultaneously, the EO continues to mandate official government reporting of actions of foreign-born radicalization, terrorist attacks, attempts, and domestic violence (example: honor killings). Thus, as time goes on, a narrative can be built correlating visa issuance with terrorism, which will, eventually, survive constitutional scrutiny. Unfortunately, the administration's tenuous relationship with facts and truth makes any such "reports" inherently suspect, and are better described as propaganda rather than "transparency" as claimed by the administration.
4. Rigorous Inadmissibility: Although the classes of foreign nationals directly affected by the new MuslimBan are more limited than the original order, the implementing memo has a very concerning clause: "I direct the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of all other relevant executive departments and agencies (as identified by the Secretary of Homeland Security) to rigorously enforce all existing grounds of inadmissibility and to ensure subsequent compliance with related laws after admission." This is a direct call to rigorously enforce immigration laws at the border, and should be seen as a counterpart to the calls for enhanced enforcement in the interior of the US, which has led to the ICE raids we've seen over the past month. Remember - both officers at overseas consulates and border officials have a great deal of discretion to deny entry to foreign nationals. This is a call to "unshackle" them, giving them even greater latitude.
5. Plenary power: The new EO contains the same, if not enhanced reliance on Section 212(f) of the Immig. & Nationality Act (INA). This will continue to be the foundation of the administration's legal argument: that Congress has total power over immigration and the admission and exclusion of foreign nationals. Some of that power was delegated to the President, who can suspend entry of any particular class of foreign national he wants, while making it appear more digestible (by a 10 day phase in, excluding say, green card holders, etc.)
6. "Not a Muslim ban because we say it isn't." The new EO is cognizant that this looks, talks, walks, acts, breathes, and otherwise is a Muslim ban. And the reckless statements of the administration keep coming back to haunt them. Thus, they smartly recognized they would have to sever religious animus on campaign trail and the first ban from the new ban. They did this, largely, by merely stating, "This is not a Muslim ban." The Sessions/Kelly statement says the ban came from countries that are state sponsors of terrorism, or countries where territories have been lost to extremist groups. But if that's the case, many other countries should have been included - even under a restrictive, Muslim-only definition of terrorism. These, and other reasons (such as the delay in implementation for non-urgent reasons, delays requested in court proceedings, and persistently pesky real facts) undermine the administration's stated rationale. But whether a rationale is good or not will not be the subject of judicial review: there must be a violation of the law. Make no mistake: this is still a Muslim ban, and remains so regardless of the shade of lipstick applied to the pig.

The new ban still suffers from a very ominous deficiency: both the administration and terrorist groups stand to benefit from another attack. This is one reason the 10 national security officials stated these types of blanket bans are a bad idea, even if they are later tempered. Our judiciary took care of the first ban, but this administration has a narrative they want to protect and nurture. And they will keep blue penciling this order until some court somewhere upholds it.

There will be legal challenge. Where any new case is brought will have tremendous effect. I suspect some of the ongoing litigation will be turned to the new order, since it raises many of the same issues.
What are some things ordinary folks can do?

1. If you're a lawyer, we need you. Amicus briefs. Helping us find plaintiffs. Volunteer at airports (shout out to www.dullesjustice.org!) Offer to take a case under the supervision of an immigration lawyer. (Message me, I will help you!)
2. If you know another language, reach out to a local immigrants' rights group and offer your services to help translate or interpret.
3. LIGHT UP the switchboards on the Hill. Let your congressfolk know that siding with the administration will cost them.
4. Protest, protest, protest. Show up at airports and rallies. Spread your beautiful exercise of First Amendment rights on social media.
5. Support an immigrants' rights organization monetarily. There are too many to list here so I'll ask folks to post them in the comments below.
6. Go hug a lawyer. Yes, we need love too.