Trump Administration Seeks to Avoid New Block on Travel Ban

  • Seattle judge who halted first ban to hear arguments Wednesday
  • Three courts to consider Trump order before it takes effect

U.S. President Donald Trump

Photographer: Michael Reynolds/Pool via Bloomberg

The Trump administration was summoned to appear before the federal judge who blocked its original travel ban to make its case against temporarily halting its less Draconian replacement.

With President Donald Trump’s re-worked travel ban on new immigrants and refugees from six mostly Muslim countries set to take effect Thursday, the Seattle judge set a court hearing Wednesday for further arguments in one of a pair of cases.

QuickTake What New Travel Ban Means for Legal Battle

The U.S. Justice Department said in court filings Tuesday that protecting the nation from terrorists trying to infiltrate the country’s borders is the president’s obligation. The president’s executive order is founded on a “prediction” that identifies Syria, Iran, Libya and three other countries as presenting a heightened risk, the government contends.

The cases before U.S. District Judge James Robart, who Trump dismissed on Twitter as a ‘so-called judge" after losing the earlier ruling, are two of four that could put the new executive order on a fast track to the U.S. Supreme Court. Court hearings are also set Wednesday in separate lawsuits in Greenbelt, Maryland and Honolulu, Hawaii. It wasn’t clear Tuesday whether Robart would also consider the second case at the Seattle hearing or issue an order separately.

Administration lawyers argue that Trump’s new executive order is substantially different than the earlier version and that it addresses the objections raised earlier by Washington state and the other states and immigrants-rights groups that filed the cases.

After upholding the Robart’s decision that the original travel ban couldn’t be enforced, the U.S. Court of Appeals in San Francisco “expressly invited the political branches to make appropriate distinctions and revise the scope of the executive order,” according to the administration’s response in the case filed by Democratic attorneys general in Washington and states including Minnesota and California.

Syria, Christians

The new executive order doesn’t doesn’t apply to lawful permanent residents with green cards, doesn’t limit the ability of individuals to seek asylum, doesn’t contain a “Syria-specific” refugee provision, and no longer tells agencies to prioritize claims of refugees belonging to minority religions, the administration argued. Opponents argued that last provision unconstitutionally favored Christians over Muslims.

The Justice Department has also included a waiver provision for prospective applicants seeking entry despite the ban. Plaintiffs must first apply for a waiver and be rejected to claim harm in court, according to the filings.

In the case filed by a group of immigrants and their relatives from Somalia, Syria and Yemen, the administration said there is no urgent need for the judge to step in because no “immediate upheaval” was to occur.

Waiver Opportunity

“No identifiable plaintiff’s visa will be revoked; visa processing will not halt; the unadmitted, non-resident alien plaintiffs have already been waiting for at least months for a visa, as have their petitioner relatives in the United States; and all visa applicants will have the opportunity to apply for a waiver,” according to the administration’s response.

In addition, U.S. immigration law gives the president broad authority for the temporarily suspend entrance of nationals from the six countries, the administration said.

"As the order explains, each of those countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones, which is why Congress and the secretary of homeland security previously designated them countries of concern," according to the filing.

The cases are State of Washington v. Trump, 17-cv-00141, and Ali v. Trump, 17-cv-00135, U.S. District Court, Western District of Washington (Seattle).

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