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9th Circuit Unanimously Denies Reinstatement of Trump's Travel Ban

The Ninth Circuit Court of Appeals unanimously denied the Trump administration's motion to toss a federal judge's temporary restraining order of the executive action temporarily stopping refugee entry and all entry from seven Muslim-majority nations.

The three-judge panel -- Judge William C. Canby Jr, appointed by President Carter,  Judge Richard R. Clifton, appointed by President George W. Bush, and Judge Michelle T. Friedland, appointed by President Obama -- reviewing the Justice Department's challenge in the case brought by the Washington state attorney general heard arguments from both parties on Tuesday.

"To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay," the 29-page ruling states. "We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides."

"Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay."

Out of the claims of various constitutional violations brought by Washington and Minnesota, the court found the due process claims most convincing.

"The Government has not shown that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims," the judges wrote. "We express no view as to any of the States’ other claims."

Later elaborating on the claims that the order constitutes a Muslim ban: "We reserve consideration of these claims until the merits of this appeal have been fully briefed."

On the Justice Department's argument that "most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause," the court underscored "the procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens."

"Rather, they 'appl[y] to all "persons" within the United States, including aliens,' regardless of 'whether their presence here is lawful, unlawful, temporary, or permanent.' Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States."