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Hawaii v. Trump - 878 F.3d 662 (9th Cir. 2017)


Under the consular nonreviewability doctrine, a consular official's decision to issue or withhold a visa is not subject either to administrative or judicial review. In other words, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien. Although the political branches' power to exclude aliens is largely immune from judicial control, it is not entirely immune; such decisions are still subject to narrow judicial review.


For the third time in the span of a few months, the United States Court of Appeals for the Ninth Circuit was called upon to assess the legality of the President Trump’s efforts to bar over 150 million nationals of six designated countries from entering the United States or being issued immigrant visas that they would ordinarily be qualified to receive. On September 24, 2017, the President issued the Proclamation, which indefinitely suspends immigration by nationals of seven countries and imposes restrictions on the issuance of certain nonimmigrant visas for nationals of eight countries. The entry restrictions were immediately effective for foreign nationals who 1) were subject to the restrictions of Executive Order 13780 (EO2), and 2) lack a credible claim of a bona fide relationship with a person or entity in the United States. Proclamation 7645, like its predecessor executive orders, relied on the premise that the Immigration and Nationality Act vested the President with broad powers to regulate the entry of aliens. The district court ordered preliminarily injunction with regard to portions of Proclamation entitled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.

Relying on prior (but now vacated) appellate opinion, the district court found that the Proclamation suffered from the same deficiencies as EO2, converted the temporary restraining order (TRO) into a preliminary injunction, which rendered it an appealable order. The United States requested immediate appellate review. 


Did President Trump exceed his authority when he issued Proclamation 9645?




The Ninth Circuit affirmed in part and vacated in part the district court's preliminary injunction order.  The Court narrowed the scope of the injunction to give relief only to those with a credible bona fide relationship with the United States, concluding that the President's issuance of Proclamation 9645 exceeded the scope of his delegated authority. According to the Court, the Government's interpretation of 8 U.S.C.S. § 1182(f) not only upended the immigration scheme that Congress enacted through the INA, but it deviated from the text of the statute, legislative history, and prior executive practice as well. The President did not satisfy a critical prerequisite that Congress attached to his suspension authority: before blocking entry, he was required to make a legally sufficient finding that the entry of the specified individuals would be detrimental to the interests of the United States. The Proclamation conflicted with 8 U.S.C.S. § 1152(a)(1)(A)'s prohibition on nationality-based discrimination in the issuance of immigrant visas. After noting that the United States Supreme Court had issued its own order staying this injunction pending "disposition of the Government's petition for a writ of certiorari, if such writ is sought," the Ninth Circuit stayed its decision pending Supreme Court review.

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