A panel of three judges on 9 th Court of Appeals appeared divided on Wednesday late on whether to maintain an order from a Hawaii district court that blocks the third version of the travel ban of President Trump.
Judge Michael Hawkins, appointed by Clinton, appeared to suggest that Trump's latest restrictions on nationals from six mostly Muslim countries are different this time than the previous bans that the court overturned.
"The two previous versions of the executive order was based a bit on speculation," he said.
Mitchell Reich, one of two lawyers who argue on behalf of the state of Hawaii challenging the ban, said the administration has not shown that the individual verification process is failing. and allow the entry of harmful persons into the United States.
"The burden falls on the foreigner to prove that he is admissible and if he can not produce sufficient documents to do so, then he may be denied entry," he said.
] But Hawkins seemed skeptical about relying on documents to make immigration determinations.
"You would trust Kim Jong Un to say" This person is really this person, you have to take him "? tó, referring to the North Korean leader.
The arguments in Seattle came a few days after the Supreme Court granted Trump a temporary victory by granting him the administration's request to completely reinstate the ban until an appeal is filed.
In October, Hawaiian District Court Judge Derrick Watson blocked the new selective restrictions of Trump, Libya, Somalia, Syria and Yemen will not enter into force, but left in their place the restrictions imposed on Venezuelan officials and immigrants from North Korea.
Watson said in his 40-page ruling that Trump's latest action "is in question" The provisions of the Immigration and Nationality Act (INA) that prohibit discrimination based on nationality in the issuance of immigrant visas.
However, the Ninth Circuit awarded Trump a partial victory last month when he granted part of his order for an emergency suspension of Watson's order. The court said the administration could ban citizens of the six Muslim-majority countries, but only if they lack a good faith relationship with a person or entity in the United States.
The exception was the same as the Supreme Court issued in June when it reinstated Trump's 90-day ban on nationals from Iran, Libya, Somalia, Syria, Sudan and Yemen. Trump replaced Sudan with Chad when he issued the new orders on Sept. 24 .
During arguments on Wednesday Deputy Assistant Attorney General Hashim Mooppan argued that a president's decision to deny or revoke an immigrant visa is not subject to judicial review unless Congress indicates otherwise.
Giving a hypothetical, Judge Ronald Gould, appointed by Clinton, asked if the courts could intervene if a president and his cabinet decided to ban all immigrants from anywhere in the world if they are not US citizens.
"I do not think so," said Mooppan.
"The Supreme Court has repeatedly made clear that the decision of the political branches to allow foreigners to enter the country is a political decision that the courts can not review unless the Congress expressly authorized otherwise."  Reich called that argument "impressive."
"Congress chose to make individual visa decisions not reviewable, Congress did not choose to make immigration policies unreliable," he said.
Neal Katyal, who also argued before the court on behalf of Hawaii on Wednesday noted the court's previous decision, ordering the administration to discover that the individualized investigation process does not work.  Judge Richard Páez, another appointed by Clinton, asked if the court's previous decision was "too demanding."
"I do not think so," Katyal said. "I think it's something that any president should be able to fulfill … Everything you said was make a discovery that something bad is happening, that this entry is harmful."
The order of the Supreme Court is exhausted if the judges refuse to hear an appeal of the decisions of the 9th and / or 4th Circuit in the case. If the court agrees to take the case, the order expires when it issues a decision.
The Court of Appeals for the 4th Circuit based in Richmond will hear arguments on Friday on the government's appeal of a separate order from a Maryland District Court that partially blocked the ban.