Immigration Law

Trump will revise travel ban; government brief says lawful permanent residents not affected

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Donald Trump

Photo of Donald Trump from Joseph Sohm /

Updated: President Donald J. Trump plans to issue a revised executive order to replace his temporary travel ban, according to a Department of Justice brief filed on Thursday with the San Francisco-based 9th U.S. Circuit Court of Appeals.

The supplemental brief (PDF) says a 9th Circuit panel that upheld a nationwide injunction that halted the travel ban misconstrued the reach of his order, and the panel decision should be vacated after Trump issues his revised order. The brief was filed as the 9th Circuit considers whether to grant an en banc rehearing in the case.

The 9th Circuit stayed en banc consideration after the administration submitted its brief, Politico reports.

Trump said at a news conference on Thursday that he will issue the order next week, report CNN, the Washington Examiner and the Sacramento Bee.

“The new order is going to be very much tailored to what I consider to be a very bad decision,” Trump said, referring to the 9th Circuit panel decision. Trump said the 9th Circuit “is in chaos” and “is frankly in turmoil.”

Trump’s executive order had temporarily banned entry into the United States by residents of seven majority-Muslim countries and by all refugees.

The DOJ brief says there is no dispute that, in most applications, Trump’s order was lawful. The 9th Circuit panel did not dispute that the order raises no constitutional difficulty, for example, as applied to refugees and other aliens who have never entered the United States, the brief says.

But the 9th Circuit panel misunderstood the scope of the order, the government said. According to the brief, the order did not affect aliens who are lawful permanent residents, aliens who are already in the United States and did not seek to depart, and aliens who have requested asylum from persecution.

“Rather than continuing this litigation,” the brief says, “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.”

Hat tip to @MikeScarcella.

Updated on Feb. 17 to report that the 9th Circuit stayed en banc reconsideration.

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