Associate Professor Catherine Powell wrote a post on the Council on Foreign Relations blog about the decision of the Ninth Circuit Court of Appeals to protect women refugees from President Trump’s travel ban.
As I’ve discussed previously, President Trump’s Executive Order (EO), “Protecting the Nation From Foreign Terrorist Entry Into the United States,” had particularly grave consequences for women refugees. Under the EO, all refugees were suspended from entering the United States for 120 days, which adversely affected women in particular. The EO also suspended all citizens from seven targeted countries—Iraq, Syria, Somalia, Sudan, Libya, and Yemen —from entering the United States, and it banned refugees from Syria indefinitely. Women refugees often flee sexual violence and other persecution, and without refugee protection, women are often stranded in refugee or temporary settlement camps where they face a heightened risk of sexual and physical violence.
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In light of this, the nationwide injunction issued by a federal judge in Washington last week and yesterday’s Ninth Circuit Court of Appeals’ decision to uphold that injunction are good news for women refugees. Under the injunction, the provision in Trump’s EO suspending refugee admissions is on hold for now, and refugees are once again allowed to enter the United States and seek resettlement as planned. However, President Trump has threatened to fight the decision, indicating he may appeal to the Supreme Court.
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While the Ninth Circuit opinion was not a full-fledged decision on the merits (as it was merely reviewing whether or not to lift the nationwide injunction), as Jen Daskal helpfully notes on Just Security, the court drew a number of important conclusions. First, while it found that the president’s power over immigration is entitled to substantial deference, the court rejected the Trump administration’s claim that this power is unreviewable, particularly when constitutional rights are at stake. Second, the Ninth Circuit noted due process rights cover all persons in the United States. Third, the court indicated its concerns that the EO is intended to disfavor Muslims, potentially violating the Establishment and Equal Protection Clauses, but ultimately noted it would “reserve consideration of these claims” until the merits have been fully briefed. Fourth, the court emphasized deep skepticism of the national security claims asserted by the government, noting that the administration had presented “no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” In fact, ten top national security experts from across parties and across several administrations filed a declaration with the court indicating that the Executive Order did not, in fact, achieve national security goals and may, in fact, undermine them.
Indeed, refugees scheduled to arrive in the United States have already undergone an intensive vetting process.