A man holds a sign during a protest held in response to President Trump's travel ban in Seattle, Washington on Jan. 29.

David Ryder / Reuters</s>President Donald Trump said his new immigration executive order will be tailored to the federal court decision that paused his travel ban.

Trump said the tailoring is currently being worked out by his lawyers and will be rolled out next week.

“The new order is going to be very much tailored to what I consider to be a very bad decision,” said Trump during a news conference, referring to a decision by the Ninth Circuit Court of Appeals that blocked his travel ban earlier this month.

Meanwhile, the Justice Department filed a brief Thursday telling the Ninth Circuit Court of Appeals that it does not need a larger panel of judges to rehear its failed emergency challenge to a lower court’s temporary suspension of Trump’s executive order on immigration because a new order is on the way.

The Justice Department wrote at length about the “seriously flawed” Ninth Circuit ruling from last week, but neverthless said: “(r)ather than continuing this litigation, the President intends in the near future to rescind the order and replace it with a new, substantially revised executive order to eliminate what the panel erroneously thought were constitutional concerns.”

“In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation,” it added.

Questions have swirled over what the Trump administration would do this week after a three-judge panel on the Ninth Circuit refused to lift a federal judge’s temporary restraining order on Trump’s executive order barring foreign nationals from Iran, Sudan, Libya, Somalia, Syria, Iraq and Yemen from entering the country for 90 days, all refugees for 120 days and all refugees from Syria indefinitely.

Last Friday, an unidentified judge on the Ninth Circuit requested that the full court vote on whether to rehear the decision reached by the three-judge panel. Such requests are not uncommon, but the call for a vote came at time when the Justice Department’s position on pursuing the appeal was uncertain.

The states that brought the lawsuit — Washington and Minnesota — said in their court filing on Thursday that there is no basis for rehearing the case.

And while the nation waits on a new or modified executive order on immigration from the Trump administration, at least one federal court is barreling ahead on litigation over the original one.

US District Court Judge James Robart in Seattle — the judge who originally halted the key provisions of the travel ban — denied a request from the Trump administration earlier this week to postpone any further proceedings in his court, which means the parties will now proceed to the discovery phase of the case.</s>Donald Trump plans to rescind his executive order banning travel from seven Muslim-majority countries and replace it with a new one, according to a Department of Justice court filing made Thursday.

“Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns,” the justice department wrote in a brief to the ninth circuit court of appeals.

Enforcement of Trump’s executive order banning travel from seven majority-Muslim countries has been suspended since a federal district judge in Seattle issued a temporary restraining order against it. The injunction was upheld by the ninth circuit court of appeals in a 9 February ruling.

The justice department filing argued that the ninth circuit should not reconsider its 9 February ruling against the travel ban but wait until the new order is released. 



The filing contradicted Trump’s own statements at an extraordinary press conference on Thursday, when the president lambasted the ninth circuit, calling it “a bad court” that had made “a bad decision”, and stating: “We are appealing that and we are going further.”

Trump later stated that the new executive order would “comprehensively protect our country” and would be “tailored to the decision we got down from the court”.

Trump’s remarks continued his ongoing war of words against the judiciary. “That circuit is in chaos, and that circuit is frankly in turmoil,” he said of the country’s largest appeals court.

He also twice cited a misleading statistic about the ninth circuit’s rate of having its rulings overturned, saying, “I’ve heard 80%. I find that hard to believe. That’s just a number I heard. That they’re overturned 80% of the time.”

The question of how many rulings the ninth circuit has had overturned has become a major talking point in rightwing media. On 9 February, Fox News host Sean Hannity called the ninth circuit “the most liberal court of appeals, the most overturned court in the country”, according to Politifact.

A blog post by rightwing outlet the Daily Caller put forward the “80% reversal rate at supreme court” figure, citing an analysis by the American Bar Association.

Both claims about the court are misleading, as fact-checking sites Snopes and Politifact have pointed out. The supreme court only reviews about 0.1% of all appeals court decisions each year. Of the cases that were taken up by the supreme court, the high court did reverse or vacate 80% of cases from the ninth circuit from 1999 to 2008. But those reversals represent a tiny fraction of the ninth circuit’s total decisions.

The ninth circuit is just the latest branch of the judiciary to feel the president’s ire. He referred to the federal district judge who initially granted the temporary injunction against his executive order as a “so-called judge” on Twitter. During the campaign, he also accused a judge presiding over a case involving his “university” of being biased due to his “Mexican heritage”.

Trump said the new executive order would be released sometime next week.

The Washington state attorney general’s office, which led the successful suit against the travel ban, tweeted that the justice department’s filing was “conceding defeat”.</s>SAN FRANCISCO – On Feb. 9, a three-judge panel of the Ninth Circuit Court of Appeals upheld the order issued by U.S. District Judge James L. Robart of the Western District of Washington, which enjoined President Donald Trump’s executive order temporarily barring citizens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the United States, as well as a temporary ban on all refugee admissions, a ban on all Syrian refugees, a reprioritization of minority religion refugees and capping the number of annual refugee admissions at 50,000.

The panel was made up of senior judges William C. Canby, a Carter appointee, and Richard R. Clifton, a George W. Bush appointee, and Judge Michelle T. Friedland, an Obama appointee.

On Feb. 10, Ninth Circuit Chief Judge and En Banc Coordinator Sidney R. Thomas issued an order stating, “A judge on this court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on Feb. 9, 2017, should be considered en banc,” and instructed the parties to file simultaneous briefs consisting of no more than 14,000 words on or before 11 a.m. Pacific Time on Thursday, Feb. 16 setting forth their respective positions on whether the matter should be considered en banc.

Despite the president having unquestionable power to suspend the entry of aliens when he believes it would be detrimental to interests of the United States, the Ninth Circuit panel claimed the U.S. Government was not likely to succeed on the merits and stated, “The Government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”

However, on Feb. 11, contrary to the court’s assertion, the Center for Immigration Studies (CIS) issued a report by Jessica Vaughan, CIS director of policy studies, stating, “A review of information compiled by a Senate committee in 2016 reveals that 72 individuals from the seven countries covered in President Trump’s vetting executive order have been convicted in terror cases since the 9/11 attacks. These facts stand in stark contrast to the assertions by the Ninth Circuit judges who have blocked the president’s order on the basis that there is no evidence showing a risk to the United States in allowing aliens from these seven terror-associated countries to come in.”

According to the Senate report, at least 17 individuals of the 72 individuals entered as refugees from the seven named terror-prone countries, while three entered on student visas and one arrived on a diplomatic visa.

At least 25 eventually became citizens, ten were lawful permanent resident aliens and four were illegal aliens.

Those 72 terrorists resided in 16 or more different states with the largest numbers living in New York, Minnesota, California and Michigan, while at least two were living in Washington.

Vaughan called out the irony that Minnesota, joined by Washington, sued to block Trump’s order, claiming it harmed the stated.

In 1950 the U.S. Supreme Court noted it was inherent in the executive power to exclude aliens as a “fundamental act of sovereignty.”

Two years later, Congress adopted a provision stating the president “may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants” whenever he thinks it “would be detrimental to the interests of the United States.”

In conjunction with Thomas’s order, the Ninth Circuit issued a media advisory summarizing the en banc procedure, stating, “Following the issuance of a three judge panel order or opinion, parties may seek a rehearing before an en banc court (before the entire bench). The parties may elect to bypass that process and seek review by the United States Supreme Court. Under Federal Rules of Appellate Procedure and the Ninth Circuit General Orders, a circuit judge can also request that a vote be held on whether a decision should be reheard by an en banc panel, even if the parties have not requested it. This procedure is termed a ‘sua sponte en banc call.’ Under court procedures, the judge who made the request is not identified.”

According to the media advisory en banc calls, including sua sponte en banc calls, are a common occurrence in the Ninth Circuit with an average of 1,500 requests made per year with approximately 50 of those requests made by a judge for a vote on whether to rehear a case en banc.

However, the Ninth Circuit only votes to hear about 15-25 en banc cases per year.

While the Ninth Circuit has consistently maintained its position over the years as the most overturned court in the country with a reversal rate exceeding 80 percent, one judge on this panel is apparently questioning his/her own decision in this matter.</s>President Donald Trump is planning to issue a new executive order related to his earlier action barring entry into the U.S. to citizens from seven predominantly Muslim countries, according to court documents filed Thursday by U.S. Department of Justice and Trump’s comments at a press briefing.

Trump’s previous order was halted by a federal court judge in Washington state who issued a nationwide temporary restraining order on February 3. The Trump administration quickly appealed the case to the 9th U.S. Circuit Court of Appeals in San Francisco but that court’s three-judge panel handed down a unanimous decision that left the restraining order in place.

Trump tweeted a fiery response to that ruling, promising to pursue the matter in court, but in Thursday’s filing, the Justice Department informed the 9th Circuit that it is not seeking a reconsideration on the matter.

“Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns,” explains the filing from the Justice Department.

Shortly before the new court filing, Trump defended the legality of the executive order at a White House news conference, stating that his administration is “appealing” the original result, but also confirming that he would be moving ahead with a new action that will be “tailored” to the court’s earlier decision and issued “sometime next week.”

“We are going further — we’re issuing a new executive action next week that will comprehensively protect our country,” said Trump. “So we’ll be going along the one path and hopefully winning that.”

In its filing with the 9th Circuit, the Justice Department maintains its stance that the court’s ruling was erroneous, but cites the “unusual circumstances presented” by the “expedited proceedings” and “complexity and constitutional magnitude of the issues.”

“The government respectfully submits that the most appropriate course would be for the Court to hold its consideration of the case until the President issues the new Order and then vacate the panel’s preliminary decision,” the Justice Department writes.

In its original form, the executive order put a 90-day stop on entry to the United States for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Confusion ensued in the aftermath of the order’s signing as legal permanent residents of the U.S. and some visa holders from the affected countries were denied admission at various airports.

The administration’s filing Thursday reiterates the government’s stance that the executive order was never meant to apply to legal permanent residents, but instead that “its focus is aliens seeking initial entry” who have “no constitutional rights regarding their application[s].”

The Justice Department does concede though that the order was “ambiguous” with respect to legal permanent residents which led to conflicting “reasonable” interpretations.

Additional clarification in Thursday’s filing explains that the order was only meant to apply to aliens attempting to enter the country, not persons already in the U.S. who haven’t left.

Trump maintained Thursday that the roll-out of the order “was perfect,” adding that the only problem they encountered was with “a bad court.”

“We had a court, what I consider to be, with great respect, a very bad decision, very bad for the safety and security of our country,” said Trump.</s>US President Trump has said he will issue a new executive order on immigration by next week.

Also, the Justice Department lawyers asked a federal appeals court to hold off on taking action in the legal battle over his initial travel ban until that new order is in place, The Washington Post reported on Thursday.

In a news conference at the White House, Trump said the new order would "comprehensively protect our country", and he hinted that it might contain new vetting measures for travelers. Trump's first order temporarily barred citizens of seven Muslim-majority countries and refugees from entering the United States, ostensibly so officials could review and tighten screening procedures.

"Extreme vetting will be put in place, and it already is in place in many places," Trump said. He said the administration "had to go quicker than we thought" because a federal appeals court refused to lift the suspension on his travel ban.

The President's comments and the Justice Department's request to the US Court of Appeals for the 9th Circuit mean that the administration - at least for now - is pumping the brakes on the furious court battle to restore the travel ban.

Instead, the administration indicated in its filing that it expects that a revamped executive order will eliminate judges' concerns, even those the Justice Department views as unfounded.

Washington state Attorney General Bob Ferguson, who had successfully sued to block the travel ban, wrote on Twitter that the Justice Department filing, in particular, "recognizes the obvious - the President's current Exec Order violates the Constitution."

"President Trump could have sought review of this flawed Order in the Supreme Court but declined to face yet another defeat," Ferguson wrote.

The legal wrangling, though, is far from over, and even a new executive order will not necessarily end the need for it. What happens next will largely depend on how significantly the rewritten order departs from the original.

Justice Department lawyers wrote that the revisions would be meaningful.</s>President Trump plans to rescind his executive order banning travel from seven predominantly Muslim countries and replace it with a revised order “in the near future,” according to documents filed by the Justice Department in an ongoing legal battle over the order.

Mr. Trump confirmed at a press conference Thursday that a new order is in the works and will likely be introduced early next week. Providing scant details about the new order, he said it “is being tailored to the decision that we got down from the court.”

The Justice Department on meanwhile asked the 9th U.S. Circuit Court of Appeals not to conduct an en banc review of a ruling that is currently barring enforcement of Mr. Trump’s order on travel and refugees, noting the new draft order in the works.

“Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns,” DOJ lawyers wrote in a brief filed in court Thursday.

The government lawyers instead asked the court to “hold its consideration of the case until a new Order is issued and respectfully requests that the panel opinion be vacated at that time.”

On Jan. 27, Mr. Trump signed the executive order to block most travel from seven predominantly Muslim nations — Syria, Iraq, Somalia, Iran, Sudan, Libya and Yemen — until stronger vetting could be implemented, indefinitely halt the resettlement of Syrian refugees in the U.S. and block other refugees for 120 days. Three days later, a Seattle-based federal judge issued a ruling that temporarily halted enforcement of the order across the country.

A panel of three judges from the 9th Circuit last week upheld the lower court’s temporary restraining order, but a larger panel from the 9th Circuit could reconsider that decision through an en banc rehearing.

Neither the Justice Department nor Washington state Attorney General Bob Ferguson, who successfully challenged Mr. Trump’s executive order, want the broader 9th Circuit review. But an unidentified judge on the 9th Circuit last week requested that the court’s 25 judges vote on whether to send the case to a panel of 11 judges from the circuit for the en banc reconsideration.

“The panel created no conflict with precedent of this Court or the Supreme Court; rather, the panel’s opinion is firmly grounded in precedent,” Washington state attorneys wrote in Thursday’s filings. “There is thus no basis for en banc review, especially given the interlocutory nature of Defendants’ motion and the cautious approach of the panel’s opinion.”

Granting such a hearing “would simply delay the merits of the preliminary injunction appeal to no substantive purpose,” Washington state attorneys wrote.

The DOJ has also asked to put off any briefings before District Judge James L. Robart, who originally issued the stay upheld by the appellate court, until after the entire 9th Circuit decides whether or not to take up the case.

On Thursday, Mr. Trump defended his order despite its clunky rollout.

“We are saving American lives every single day. The court system has not made it easy for us,” Mr. Trump said. “We’ve taken decisive action to keep radical Islamic terrorists out of our country. Though parts of our necessary and constitutional actions were blocked by judges, in my opinion [in an] incorrect and unsafe ruling, our administration is working night and day to keep you safe.”</s>The Justice Department told a federal court Thursday that there's no point in further court battles over President Trump's executive order on immigration, because it will soon be replaced by a different one.

"The President intends in the near future to rescind the order and replace it with a new, substantially revised executive order to eliminate what the panel erroneously thought were constitutional concerns," the government said in a filing submitted to the Ninth Circuit Court of Appeals in San Francisco.

A three-judge panel of the court last week refused to lift a stay that blocked the government from enforcing the order. Lawyers for the government and the states that opposed the travel restrictions were asked to submit legal briefs on whether the full appeals court should re-hear the case.

The states of Washington and Minnesota understandably said no, calling last week's ruling in their favor "careful, thoughtful, and narrow."

Related: Analysis: Here are Three Potential Fixes to the Travel Ban Order

But while the Justice Department said the ruling was deeply flawed, it said the most appropriate course now "would be for the court to hold its consideration of the case until the president issues the new order."

As the legal briefs were being filed, President Trump was announcing that he would issue "a new and very comprehensive order to protect our people. That will be done sometime next week, toward the beginning or middle at the latest."

The original order, issued Jan. 27, imposed a 90-day pause on allowing citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen to enter the US. And it suspended all refugee admissions for 120 days.

During those period, the administration said, the government would assess the dependability of information provided by those countries that is used by American authorities in assessing a person's background.

Washington, joined later by Minnesota, claimed the executive order violated the Constitution and federal immigration law and asked for an immediate stay to block its enforcement. A federal judge in Seattle granted that request on Feb. 3, and on Feb. 9, the three-judge panel unanimously rejected the government's request to lift the stay.

The Justice Department said when the new executive order is issued, the Ninth Circuit ruling should be vacated, calling it "seriously flawed in several important respects."

The government said the states did not have legal standing to sue on behalf of their residents. And it said the appeals court wrongly concluded that nearly all visa holders in the U.S. have a right to an individualized hearing before they could be subject to the executive order's limitations.

Most legal experts agree that when a revised executive order is issued, the court ruling blocking enforcement of the current one would cease to have legal effect, and the government could immediately begin enforcing the new one.

That might launch a whole new round of lawsuits. If the new order applied to a smaller group of people, such as those from the affected countries who have never come to the US before, it might be harder to defeat in court.

But if it covers the same countries as the original order, challengers could be expected to argue that it discriminates on the basis of religion. A federal judge in Virginia issued a ruling Feb.13 blocking enforcement of part of the executive order in that state.

Judge Leonie Brinkema said the travel restrictions improperly discriminated against Muslims.</s>An unfazed US President Donald Trump has vowed to issue a new immigration executive order next week that would be "tailored" to the court's ruling that stalled his controversial travel ban on people from seven Muslim- majority countries into the US.

 

 "The new order is going to be very much tailored to what I consider to be a very bad decision," said Trump during a hurriedly convened White House news conference, referring to a decision by the Ninth Circuit Court of Appeals that blocked his travel ban earlier this month.

 

 The court had refused to lift a federal judge's temporary restraining order on Trump's executive order barring foreign nationals from Iran, Sudan, Libya, Somalia, Syria, Iraq and Yemen from entering the country for 90 days, all refugees for 120 days and all refugees from Syria indefinitely.

 

 Trump said that his new executive order is being tailored. "We have some of the best lawyers in the country working on it. And the new executive order is being tailored to the decision we got down from the court," he said.

 

 However, he did not give details of the new order.

 

 Trump criticised the court order suspending the travel ban as "a very bad decision, very bad for the safety and security of our country. The roll-out was perfect." 

 

 "We've vetting very, very strongly. Very, very strongly. But we need help, and we need help by getting that executive order passed," he said.

 

 Soon after Trump's comments, the US Justice Department approached a federal court in San Francisco for a pause in the proceedings.

 

 The 9th US Circuit Court of Appeals in its order late Thursday put the proceedings of the case on hold.

 

 The new executive action next week, Trump said, will comprehensively protect America.

 

 "We will be going along the one path and hopefully winning that. At the same time, we will be issuing a new and very comprehensive order to protect our people, and that will be done some time next week, toward the beginning or middle at the latest part," he said.

 

 Meanwhile, Washington State Attorney General Bob Ferguson who was instrumental in filing the case against the executive order claimed victory.

 

 "Let's be clear: Today's court filing by the federal government recognizes the obvious the President's current Executive Order violates the Constitution. President Trump could have sought review of this flawed Order in the Supreme Court but declined to face yet another defeat," he said.

 

 Ferguson alleged that the Executive Order violates the US Constitution's guarantee of Equal Protection and the First Amendment s Establishment Clause, infringes individuals constitutional right to Due Process and contravenes the federal Immigration and Nationality Act.

 

 Trump's first executive order on immigration had triggered global condemnation as well as by US tech giants and attorneys general from 16 American states.</s>President Donald Trump said Thursday that he will issue a new executive order on immigration by next week, and Justice Department lawyers asked a federal appeals court to hold off on taking action in the legal battle over his initial travel ban until that new order is in place.

In a news conference at the White House, Trump said the new order would "comprehensively protect our country," and he hinted that it might contain new vetting measures for travelers. Trump's first order temporarily barred citizens of seven Muslim-majority countries and refugees from entering the United States, ostensibly so officials could review and tighten screening procedures.

"Extreme vetting will be put in place, and it already is in place in many places," Trump said. He said the administration "had to go quicker than we thought" because a federal appeals court refused to lift the suspension on his travel ban.

The president's comments and the Justice Department's request to the U.S. Court of Appeals for the 9th Circuit mean that the administration - at least for now - is pumping the brakes on the furious court battle to restore the travel ban. Instead, the administration indicated in its filing that it expects that a revamped executive order will eliminate judges' concerns, even those the Justice Department views as unfounded. The 9th Circuit agreed late Thursday to wait until a new order was issued to potentially reconsider the matter before a larger group of judges.

Washington state Attorney General Bob Ferguson, who had successfully sued to block the travel ban, wrote on Twitter that the Justice Department filing, in particular, "recognizes the obvious - the President's current Exec Order violates the Constitution."

"President Trump could have sought review of this flawed Order in the Supreme Court but declined to face yet another defeat," Ferguson wrote.

The legal wrangling, though, is far from over, and even a new executive order will not necessarily end the need for it. What happens next will largely depend on how significantly the rewritten order departs from the original. Justice Department lawyers wrote that the revisions would be meaningful.

"Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns," the lawyers wrote. "In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation."

Trump could make clear that his order no longer applies to green-card holders - who probably have the strongest case to sue - or he could craft an order that would affect only people who have not yet applied for visas. But a three-judge panel with the U.S. Court of Appeals for the 9th Circuit said even those modifications would not necessarily persuade them to lift a suspension of the ban, because such changes would not help U.S. citizens who "have an interest in specific noncitizens' ability to travel to the United States."

Lee Gelernt, who is deputy director of the American Civil Liberties Union's national Immigrants' Rights Project and is involved in another legal challenge to Trump's order in federal court in New York, said it is difficult to assess a new order without seeing it, "but I think any type of ban is going to be legally problematic, and I also don't think that the taint of religious discrimination is going to go away."

The original executive order, signed Jan. 27, barred refugees from entering the country for 120 days; citizens of Iran, Iraq, Libya, Somalia, Sudan and Yemen for 90 days; and citizens of Syria indefinitely. A federal judge in Seattle first ordered the ban suspended Feb. 3, and the three-judge panel with the 9th Circuit last week unanimously rejected the administration's request to undo that freeze. That left Justice Department lawyers with two options in the short run: rush immediately to the Supreme Court, or ask the full 9th Circuit to take up the matter in what is known as a rehearing "en banc."

They had yet to make a choice when a judge on the 9th Circuit asked the judges to take a vote on their own, and the circuit's chief judge asked the parties to file their positions on the matter by Thursday.

The Justice Department, representing the Trump administration, argued in its filing that the three-judge panel was wrong, but - given that a new executive order was coming anyway - the 9th Circuit should hold off on taking up the matter en banc.

Washington state and Minnesota, which are suing over the ban, also argued against en banc consideration, but they asserted that the three-judge panel got it right.

At issue has not been whether Trump's ban is ultimately legal - although that has been part of the consideration. The judges have been asked to consider only whether national security concerns necessitate an immediate restoration of the travel ban, when weighed against the economic and other harms Washington and Minnesota officials say it is imposing on their states.

The president has broad authority to set immigration policy, but federal judges nationwide have ruled against Trump's particular travel ban. This week, a federal judge in Virginia handed down perhaps the most stinging rebuke of the executive order, declaring that there was evidence that it was motivated not by national security concerns but instead by "religious prejudice" toward Muslims.
The U.S. Justice Department tells the Ninth Circuit Court of Appeals that it won't be seeking further action by the court since this executive order will soon be replaced by a different one. Justice added they expect the Ninth Circuit ruling will be vacated once the new executive order is issued.