FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 22 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT STATE OF HAWAII; ISMAIL ELSHIKH; No. 17-17168 JOHN DOES, 1 & 2; MUSLIM ASSOCIATION OF HAWAII, INC., D.C. No. 1:17-cv-00050-DKW-KSC Plaintiffs-Appellees, v. OPINION DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN M. NIELSEN, in her official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellants. Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding Argued and Submitted December 6, 2017 Seattle, Washington Before: Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, Circuit Judges. PER CURIAM: For the third time, we are called upon to assess the legality of the President’s efforts to bar over 150 million nationals of six Muslim-majority countries from entering the United States or being issued immigrant visas that they would ordinarily be qualified to receive. To do so, we must consider the statutory and constitutional limits of the President’s power to curtail entry of foreign nationals in this appeal of the district court’s order preliminarily enjoining portions of § 2 of Proclamation 9645 entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public- Safety Threats” (the “Proclamation”). The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”) vested the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has embodied in the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: Before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the 2 interests of the United States.” The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation. On these statutory bases, we affirm the district court’s order enjoining enforcement of the Proclamation’s §§ 2(a), (b), (c), (e), (g), and (h). We limit the scope of the preliminary injunction, however, to foreign nationals who have a bona fide relationship with a person or entity in the United States. I. Background1 A. Prior Executive Orders and Initial Litigation On January 27, 2017, one week after his inauguration, President Donald J. Trump signed an Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry into the United ...
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