The 9th Circuit has a (well-earned) reputation for being, well, rather liberal (if not outright leftist) in its leanings. In fact, over the past two decades, the circuit, which encompasses Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, as well as Guam and the Northern Mariana Islands, has far and away been the circuit reversed the most by the Supreme Court.
That’s changed a bit more recently. In the 2023 term, the 5th Circuit actually garnered the most reversals (eight, for 80 percent of its cases heard by SCOTUS), followed by the 2nd Circuit (six, for 86 percent of its cases heard by SCOTUS), and then the 9th (five, for 50 percent of its cases heard by SCOTUS). The shift probably derives from various factors, but the bottom line is that we’ve actually seen some glimpses of sanity out of the 9th of late.
Such was on display on Monday, as the appellate court advised the district court (Judge Jamal Whitehead in the Western District of Washington) to slow its roll after interpreting the previous partial stay issued by the 9th Circuit “broadly enough to swallow the entire stay order.”
Here’s some of the back story:
The day he was sworn (back) into office, President Donald Trump issued a slew of executive orders consistent with his promised agenda. One of those — Executive Order 14163 — is titled “Realigning the United States Refugee Admissions Program” and suspends the U.S. Refugee Admissions Program (USRAP) “until such time as the further entry into the United States of refugees aligns with the interests of the United States.” Pursuant to the order, the suspension of USRAP was set to take effect on January 27, 2025. The order provided for exceptions on a case-by-case basis, to be determined jointly by the Secretary of State and Secretary of Homeland Security. It also revoked Executive Order 14013 (“Rebuilding and Enhancing Programs To Resettle Refugees and Planning for the Impact of Climate Change on Migration”), signed by President Joe Biden on February 4, 2021.
The plaintiffs, several non-profit organizations and individuals, filed suit against President Trump, Secretary of State Marco Rubio, Secretary of Homeland Security Kristi Noem, and then-acting Secretary of Health and Human Services Dorothy Fink in the Western District of Washington on February 10, 2025. The suit sought a temporary restraining order, a preliminary injunction, and a permanent injunction against the administration to enjoin it from implementing or enforcing the Executive Order and sought a declaration that the order is unlawful and invalid.
After Judge Whitehead granted the plaintiffs a preliminary injunction in the case, the Trump administration appealed to the 9th Circuit, which then issued a partial stay, delineating between the Biden and Trump administrations and those conditionally approved for refugee status prior to the Trump administration.
But the plaintiffs and the district court apparently saw that as a green light to block virtually all revocations of refugee status for anyone who was in the process of applying for it — no matter how far along they were in that process. The administration filed a motion with the 9th Circuit to clarify its order, and now it has, more or less admonishing the district court and plaintiffs not to be ridiculous (citations omitted):
Before the district court, the parties have agreed that, for I-590 refugees, the term “means any applicant for whom, prior to January 20, 2025, USCIS granted conditional approval for refugee status, including by generating and/or transmitting a ‘Notice of Eligibility for Resettlement’ or equivalent document,” and for I-730 refugees, the term means “successful completion of USCIS domestic processing (either the petition was approved and forwarded to the Department of State, or, the petition was sent to a USCIS international field office overseas).” Under these definitions, the parties have construed our carveout broadly enough to swallow the entire stay order. The government represents that “almost 130,000 individuals were conditionally approved for refugee approval before January 20, 2025.” Plaintiffs clearly grasp that our order was intended to apply to those “refugees furthest along in the process . . . like Plaintiff Pacito, who sold all of his belongings in anticipation of flying to safety in the United States and was forced to shelter with his wife and baby in the parking lot of the U.S. embassy in Nairobi after their travel was abruptly cancelled.” Nevertheless, they believe our order applies to tens of thousands of individuals. Our order was not intended to compel the government to admit more refugees than authorized for the entire Fiscal Year 2025.
Noting their assessment that the government was likely to succeed on the merits, the court further explained that (citations omitted):
We concluded that there was little chance of irreparable harm to the government from permitting those refugee applicants who were conditionally approved and in transit, as defined below, to complete their resettlement. We reasoned that such applicants could demonstrate a strong reliance interest on the government’s approval process because they needed only to complete their arranged travel to the United States. In contrast, there is a significant chance of irreparable harm to the government from compelling it to process over 100,000 conditionally approved applications that it would otherwise be permitted to discontinue. The other two Nken factors—injury to third parties and the public interest—are best settled by deference to the President’s “broad discretion to suspend the entry of aliens into the United States.”
Given that, the 9th Circuit clarified that the government’s stay request is denied only as to those who met the following criteria on or before January 20, 2025:
- the individual had an approved refugee application authorizing Customs and Border Protection to admit the individual “conditionally as a refugee upon arrival at the port within four months of the date the refugee application was approved”;
- the individual was cleared by USCIS for travel to the United States; and
- the individual had arranged and confirmable travel plans to the United States.
In other words, save for the people who meet the above criteria, the administration is well within its rights to proceed with the suspension of the Refugee Admissions Program. Which, quite frankly, seems quite reasonable — a description I’ve not had occasion to use in relation to the 9th Circuit often, if ever.
It would be nice if some of the lower courts started to take notice.
Editor’s Note: Thanks to President Trump, illegal immigration into our great country has virtually stopped. Despite the radical left’s lies, new legislation wasn’t needed to secure our border, just a new president.
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