U.S. lawyers file defense of travel ban

Tawfik Assali, 21, of Allentown, Pa., embraces his sister Sarah Assali, 19, on Monday at John F. Kennedy International Airport in New York after Sarah Assali and other family members arrived from Syria. The family reached the U.S. after previously being denied entry under President Donald Trump’s travel ban.
Tawfik Assali, 21, of Allentown, Pa., embraces his sister Sarah Assali, 19, on Monday at John F. Kennedy International Airport in New York after Sarah Assali and other family members arrived from Syria. The family reached the U.S. after previously being denied entry under President Donald Trump’s travel ban.

WASHINGTON -- The Justice Department on Monday night urged a federal appeals court to reinstate President Donald Trump's temporary travel ban, saying that a judge's decision to block it endangered national security and violated the separation of powers.

The Justice Department's defense of Trump's executive order, which blocks most travelers from seven Muslim-majority countries and halts the nation's refugee program, comes as the San Francisco-based 9th U.S. Circuit Court of Appeals weighs whether to restore the order. The lawyers said the travel ban was a "lawful exercise" of the president's authority to protect national security and that the judge's order that put the policy on hold should be overturned.

The appeals court has scheduled an hourlong oral argument in the case this afternoon. The court earlier refused to immediately reinstate the ban. Lawyers for Washington and Minnesota -- two states challenging the ban -- argued anew on Monday that any resumption would "unleash chaos again," separating families and leaving university students stranded outside the U.S.

Opponents of the ban made three arguments in their submissions to the appeals court, saying the ban is unlawful, that it represents bad national-security policy and that it is a threat to the nation's economy.

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Fifteen states -- including New York, California, Massachusetts and Virginia -- and the District of Columbia filed a supporting brief to argue that allowing the ban to stand would "cause harm to the states, including to state institutions such as public universities, to the businesses that sustain our economies, and to our residents."

The Justice Department argued that the president has clear authority to "suspend the entry of any class of aliens" in the name of national security. It said the travel ban was intended "to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks."

Those challenging the ban, the Justice Department wrote, were asking "courts to take the extraordinary step of second-guessing a formal national security judgment made by the president himself pursuant to broad grants of statutory authority."

The Trump administration argued that blocking the president's order would cause irreparable harm to national security. Lawyers for Washington and Minnesota said that was not plausible because it would mean the nation had long been suffering "some unspecified, ongoing irreparable harm."

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"That makes no sense," the brief said. "As this court has held, preserving the status quo against sudden disruption is often in the interest of all parties."

Other trial judges have blocked aspects of Trump's executive order, but this is the first case to reach an appeals court. And none of the lower-court rulings were as broad as the one under review in the case, State of Washington v. Trump.

That ruling from Judge James Robart, a federal judge in Seattle, blocked the key parts of Trump's executive order. Robart's ruling allowed immigrants and travelers who had been barred from entry to come to the United States.

It is somewhat unusual for a district judge to issue an order that affects the entire country, but Robart, who was nominated by President George W. Bush and has been on the bench since 2004, said it was necessary to follow Congress' intention that "the immigration laws of the United States should be enforced vigorously and uniformly."

He was quoting from a 2015 appeals court ruling that blocked President Barack Obama from taking executive action to make it easier for illegal aliens to remain in the U.S.

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The State Department said people from the seven countries under Trump's ban -- Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen -- can travel to the U.S. if they have valid visas. The Department of Homeland Security said it was no longer directing airlines to prevent affected visa-holders from boarding U.S.-bound planes.

Ban's opposition

On Monday, a graduate student who had traveled to Libya, with her 1-year-old son, to visit her sick mother and attend her father's funeral was back in Fort Collins, Colo., after having been stopped in Jordan on her return trip. She was welcomed with flowers and balloons by her family.

Two Yemeni brothers who had been turned away in the chaotic opening days of the order, and whose family has sued over the travel ban, arrived at Washington Dulles International Airport in Virginia, where they were greeted by their father.

"America is for everybody," Aqel Aziz said after greeting his sons.

Syrian immigrant Mathyo Asali said he thought his life was "ruined" when he landed at Philadelphia International Airport on Jan. 28 only to be rejected by the United States. Asali, who returned to Damascus, said he figured he would be inducted into the Syrian military. He was back on U.S. soil Monday.

"It's really nice to know that there's a lot of people supporting us," Asali told Pennsylvania Gov. Tom Wolf, who greeted the family in Allentown.

National security officials who served under Obama have come out against the executive order. A declaration filed in court by John Kerry and Madeleine Albright, both former secretaries of state, and others said the ban would disrupt lives and cripple U.S. counterterrorism partnerships without making the nation safer.

"It will aid ISIL's propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam," they wrote, using an acronym for the Islamic State extremist group.

States challenging the ban have been joined by technology companies, which have said the order makes it more difficult to recruit employees. About 58 percent of the engineers and other high-skill employees in Silicon Valley were born outside the U.S., according to the Silicon Valley Leadership Group, an industry trade group.

"Immigration and innovation go hand in hand," said Carl Guardino, the group's chief executive officer. "This cuts so deeply into the bone and marrow of what fuels the innovation economy that very few CEOs feel the luxury of sitting on the sidelines. So people are going to stand up and speak up."

In a court filing Sunday against the ban, 97 companies, including major tech players such as Google, Apple, Microsoft, eBay, Netflix, Facebook and Twitter, also spoke of the entrepreneurial spirit of "people who choose to leave everything that is familiar and journey to an unknown land to make a new life."

Google CEO Sundar Pichai and Microsoft CEO Satya Nadella both came from India. Google co-founder Sergey Brin is a Russian refugee who moved to the U.S. as a boy. The father of Apple's late co-founder, Steve Jobs, immigrated from Syria.

Workers from Google and Comcast have staged walkouts over the travel order.

"I wouldn't be where I am today or have any kind of life that I have today if this was not a brave country that really stood out and spoke for liberty," Brin told a crowd of Google employees who walked out in protest last week.

Virginia suit

Justice Department officials said Monday that they erred last week when they said 100,000 visas had been revoked as a result of the travel ban, citing a State Department estimate that 60,000 visas were taken away.

The admission came in a filing in Alexandria, Va., federal court, where one of more than a dozen lawsuits challenging Trump's ban has been filed.

Erez Reuveni, senior counsel at the Office of Immigration Litigation, said he wanted to "correct" the statement he made in court last week. He did not explain where the 100,000 figure came from, only that it was based on information he had received.

In Virginia, Judge Leonie Brinkema separately extended through next weekend a court order mandating that all legal permanent residents be allowed through Washington Dulles International Airport and be given access to attorneys. She has also demanded that the government produce by Thursday a list of all Virginia students, workers, residents and other valid visa-holders blocked from entering the United States under the order.

Two women have asked to intervene on the Trump administration's behalf in that case. Rachel Okyay and Janice Wolk Grenadier say that those challenging the ban are denying them their rights as citizens. A hearing on their motions will be held Feb. 24.

Leon Fresco, the deputy assistant attorney general for the Office of Immigration Litigation during Obama's administration, said he was "surprised that there is this exuberance to immediately rescind the executive order" given the timing issues. The order bars Syrian refugees from the U.S. indefinitely, and blocks for 120 days all others fleeing their homelands claiming persecution or fear of violence. No citizens of the seven countries could enter the U.S. for 90 days.

"It is perplexing why the government wouldn't want to simply, at this point, maintain an orderly process in one court as opposed to fighting it out all across the country in different courts, and working its way to the Supreme Court," Fresco said. "Unless the goal is to have an outright travel ban forever, and we should take the president at his word that that's not the goal, then let's just have calmer heads prevail and conduct the security analysis that was going to be conducted during these 90 days."

The Justice Department could have gone straight to the Supreme Court, but a department spokesman said it would not do so.

"With the fast briefing schedule the appeals court laid out, we do not plan to ask the Supreme Court for an immediate stay but instead let the appeals process play out," spokesman Peter Carr said.

It would take the votes of five Supreme Court justices to overturn a decision on the executive order. The court has been shorthanded since the death of Justice Antonin Scalia nearly a year ago, and the last immigration case that reached the justices ended in a 4-4 tie.

However, if Trump's Supreme Court nominee, Judge Neil Gorsuch, is confirmed this spring, then the chances of a tie vote would disappear.

Information for this article was contributed by Eric Tucker, Eugene Johnson, Martha Bellisle, Matthew Barakat, Michael Rubinkam, Colleen Slevin, Mark Sherman, Mae Anderson, Michael Liedtke, Barbara Ortutay and Chris Grygiel of The Associated Press; by Adam Liptak of The New York Times; and by Rachel Weiner, Matt Zapatosky, Robert Barnes and Brian Murphy of The Washington Post.

A Section on 02/07/2017

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