Since January 27, 2017, the federal government has endeavored to ban the entry of all nationals of at least six African and Middle Eastern countries for 90 days. The issue in this appeal is whether the district court erred in issuing a preliminary injunction based, in part, on its findings that plaintiffs were likely to succeed in proving that aspects of the order violated the Establishment Clause and the Immigration Nationality Act and that an injunction would not harm the public interest. Cato filed this brief to provide evidence to inform the court’s review.
The facts clearly show that a series of false premises underlie the government’s justifications. It claims to have selected these six countries to study whether they may not be providing sufficient information to adjudicate visa applications. Yet under the law, the government has no obligation to gather any information to process applications. Visa applicants bear the burden of proof. If the applicants cannot prove their eligibility, they are denied, and the government’s own data demonstrate that consular officers have rigorously enforced this burden of proof and responded appropriately to the changing circumstances within these countries on an individualized basis.
Even if the government had such an obligation, it wrongly equates “nationality” with “country.” Millions of people who hold the legal designation of “national” have resided for years outside of these countries. Many have never had any meaningful relationship to their countries of nationality. Indeed, in at least two of these countries, individuals may be nationals without ever having been in the country at all.
The government justifies the executive order by claiming a need to reevaluate immigration screening based on an assertion that “hundreds” of foreigners have committed terrorism‐related offenses since 9/11. Yet since 9/11, when the government dramatically improved the screening process for immigrants, only 34 foreigners who entered legally into the United States since 9/11 committed terrorism offenses, and only 18 of these likely may have radicalized before entering. Only four of these possible vetting failures were nationals of a banned country.
Despite the nonexistence of significant vetting failures, the government purports to select these specific countries because they are either state sponsors of terrorism or countries in a state of civil war involving Foreign Terrorist Organizations—again wrongly equating nationalities and countries. Over the last 42 years, terrorists who were nationals of countries without these characteristics were 215 times more deadly to U.S. residents than those with them. While the future need not replicate the past, the government itself has supplied only historical evidence to supports its conclusions. This disconnect between threat level and selection criteria results in the selection of six countries whose nationals have not carried out a deadly attack in the last four decades.
Cato filed a similar brief (here) in the case in the Fourth Circuit, arguing additionally that Congress has clearly banned discrimination in immigrant visa issuance based on nationality. While the order itself claims to ban “entry,” the ban is clear that it will allow nationals from the designated countries who already have visas to enter, while it will discriminate against those without visas if they apply, solely by virtue of their nationality. Because the ban bars nationals without regard to their relationship to these countries, it is by its own terms a ban based on discriminating against persons with specific nationalities, not national security.
Cato filed a similar brief in the related Ninth Circuit case, Hawaii v. Trump (here).
Freshfields Bruckhaus Deringer US LLP served as counsel to the Cato Institute. The attorneys on the briefs were Daniel Braun, Brent Wible (in the Ninth Circuit), David Livshiz, Peter Jaffe, Lauren Kaplin, and Karen Wiswall