Two federal judges have blocked President Trump’s third try at implementing a nationwide travel ban.
The first ruling blocking the administration from enforcing the September 24thPresidential Proclamation, which restricts travel into the U.S. by foreign nationals from eight countries, came from the U.S. District Court for the District of Hawaii on Tuesday, October 17, 2017, just hours before the travel ban was scheduled to go into effect. The Hawaii District Court issued a temporary restraining order (“TRO”), basing its decision on the same analysis used by the Ninth Circuit Court of Appeals when it set aside the earlier version of the travel ban – that is, that President Trump exceeded his authority under statutory federal immigration law. As a result of the TRO, nationals from Chad, Iran, Libya, Somalia, Syria and Yemen are exempt from the travel ban, but nationals from North Korea and Venezuela remain subject to the travel restrictions set forth in the Presidential Proclamation.
In his decision, Judge Watson noted that the latest travel ban is being challenged in part because the original travel ban, issued back in January of this year, was an attempt to create a “Muslim Ban”, and President Trump “has never renounced or repudiated his calls for a ban on Muslim immigration.” He wrote that the third iteration of the ban “suffers from precisely the same maladies as its predecessor”, and that it “plainly discriminates based on nationality” in a way that is opposed to federal law.
The second ruling, issuing a preliminary injunction blocking the ban from being enforced, came from the U.S. District Court for the District of Maryland on Wednesday, October 18, 2017. In a narrower decision, Judge Chuang blocked the administration only from enforcing the travel ban against travelers from Iran, Libya, Somalia, Syria, Yemen and Chad with a “bona fide relationship” with people or institutions in the U.S. Judge Chuang found that the Presidential Proclamation violated the First Amendment’s establishment clause since it is aimed at Muslims.
In response to the injunctions, the Justice Department has stated that it plans to appeal the Hawaii District Court’s ruling. We anticipate that the Maryland District Court ruling will also be appealed. In the meantime, the TRO and preliminary injunction are intended to maintain the status quo.
We will continue to apprise clients regarding any developments as they unfold.
As a result of an order issued by the U.S. District Court for the District of Hawaii last night, foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen are now considered exempt from President Trump’s travel ban if they are coming to the U.S. to visit with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins. In addition, the court held that the travel ban cannot be enforced against refugees from the six countries who have formal assurance from a resettlement agency in the U.S. for placement.
The District of Hawaii’s order greatly expands the number of people who are exempt from the travel ban which, as we reported earlier, was partially reinstated by the U.S. Supreme Court in a per curiam decision issued at the close of its term late last month. Previously, under the Supreme Court’s decision and implementing FAQs issued by the U.S. Departments of Homeland Security and State, foreign nationals from the six banned countries could only travel to the U.S. to visit with parents, spouses, siblings, fiancés, children, sons-in-law and daughters-in-law.
We will continue to report on any additional developments as they unfold.
On June 26, 2017, the final day of its judicial term before summer recess, the United States Supreme Court addressed the Trump Administration’s hotly contested travel ban. The Supreme Court issued a per curiam decision on June 26, 2017 allowing the federal government to implement a portion of the travel ban set forth in Executive Order 13780 (Protecting the Nation From Foreign Terrorist Entry Into the United States), which was signed on March 6, 2017. Recall, EO 13780 called for the suspension on the admission of all refugees for 120 days and also sought to impose a 90-day “temporary pause” on the admission of foreign nationals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen.
The Supreme Court’s June 26th decision marks the latest move in the game of legal ping pong regarding the Trump Administration’s stated efforts to protect Americans and safeguard the nation’s security interests. The Supreme Court will fully consider the legal arguments at stake when the fall session begins in October 2017. For now, the Supreme Court’s decision will allow the Trump Administration to exclude foreign nationals from each of the six countries of concern, provided they have no “credible claim of a bona fide relationship with a person or entity in the United States”. Stated differently, if a foreign national can establish the existence of a “close familial relationship” with someone already in the United States or a formal, documented relationship with an American entity, the travel ban will not apply. It is expected that enforcement of this limited travel ban will begin on June 29, 2017, just as the nation’s peak summer travel season gets underway.
Not surprisingly, the Supreme Court’s decision leaves a number of unanswered questions regarding the meaning of the “bona fide relationship” standard. In an effort to shed some light on this issue, the Supreme Court provided several examples of the circumstances that would satisfy the “bona fide relationship” standard:
Individuals seeking to come to the United States to live or visit a family member (i.e., spouse, mother-in-law), though it remains to be seen just how far the federal government will go to recognize a “close” familial relationships (e.g., cousins, aunts, uncles, nieces, nephews, etc.);
Students who have been admitted to an educational institution in the United States;
Foreign nationals who have been extended, and have accepted, an offer of employment with a corporate entity in the United States;
Foreign nationals who have been invited to temporarily address an American audience as lecturers; and
Refugees who have family connections in the United States or who have connections with refugee resettlement agencies.
While the examples provided by the Supreme Court are helpful to a certain degree, they do not address all scenarios that may arise for foreign nationals seeking to enter into the United States in the immediate future. Nevertheless, it appears that individuals who currently hold valid immigrant and/or non-immigrant visas will not be subject to the travel ban.
In response to the Supreme Court’s decision, the Department of Homeland Security issued a statement on June 27, 2017 noting that DHS’ implementation of EO 13780 will be “done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry”.
We will continue to apprise clients regarding any developments as they unfold.
As Yogi Berra once said: “It’s like déjà vu all over again.”
Since mid-February, the Trump Administration promised the imminent release of a revised and improved executive order addressing travel ban and refugee admissions. The wait is over. On Monday, March 6, 2017, President Trump signed a new executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the new EO). The new EO revokes and replaces Executive Order 13769 (EO 13769), which President Trump signed on January 27, 2017. From the get-go, there was significant confusion surrounding the scope and implementation of EO 13769, immediately followed by numerous legal challenges. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit upheld a temporary restraining order issued by a lower court, which prohibited the federal government from enforcing any restrictions contained in EO 13769.
Unlike EO 13769, which was effective immediately, the new EO allows for a ten-day grace period and will not become effective until 12:01 a.m. on Thursday, March 16, 2017.
Similar to its predecessor, the new EO imposes a 90-day “temporary pause” on the entry into the United States of nationals from the following six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Most notably, Iraq is no longer on the list. Nevertheless, the new EO states that Iraqi nationals will be subject to additional scrutiny where they may “have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.”
In an effort to avoid the chaos that ensued following EO 13769, the new EO provides greater clarity on the scope of the travel ban. Specifically, the 90-day travel ban will apply only to those foreign nationals from the six enumerated countries of concern if:
the foreign national is not physically present in the United States on the effective date of the order (March 16, 2017);
the foreign national did not have a valid visa at 5:00 pm EST on January 27, 2017; and
the foreign national does not have a valid visa on March 16, 2017.
The new EO order is very clear that it does not apply to green card holders, those with validly issued visas, and dual citizens. In addition, the new EO allows for exceptions and individualized assessments to be made by consular and border immigration officers in certain cases.
In addition to implementing a revised travel ban, the new EO also addresses the current refugee program. Specifically, the new EO:
caps the admission of refugees to no more than 50,000 for fiscal year 2017;
directs the Secretary of State to suspend refugee travel into the United States for 120 days (beginning on March 16, 2017); and
directs the Secretary of Homeland Security to suspend decisions on applications for individuals seeking refugee status for 120 days (beginning on March 16, 2017).
Noticeably absent from the new EO is the indefinite ban on the admission of Syrian refugees that appeared in EO 13769.
While the headlining topics of the new EO remain focused on travel restrictions and refugee admissions, it is worth noting that the new EO also mandates the following:
the immediate suspension of the Visa Interview Waiver Program (but for individuals seeking a visa based upon diplomatic or diplomatic-type visa status);
a review of non-immigrant visa reciprocity agreements currently in place with other countries to ensure that such agreements are “truly reciprocal”;
the collection and disclosure of certain data to the American people pertaining to foreign nationals and their involvement in or connection to certain nefarious activities (i.e., terrorist-related offenses, acts of gender-based violence against women, etc.).
Despite the Trump Administration’s efforts to narrowly tailor this newest EO, we anticipate that there will be legal challenges filed by various stakeholders in the coming days and weeks.
After hearing oral arguments earlier this week from attorneys representing the White House and the states of Washington and Minnesota, last night, the U.S. Court of Appeals for the Ninth Circuit unanimously upheld the U.S. District Court for the Western District of Washington’s February 3, 2017 issuance of a temporary restraining order prohibiting the federal government from enforcing President Trump’s Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13769). As you know from our previous blog posts, EO 13769 suspends the entire refugee admission program for 120 days, the Syrian refugee program indefinitely and the entry of immigrants and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for an initial 90-day period. For now, as a result of the Ninth Circuit’s decision, citizens from the seven restricted countries will be able to travel to the U.S. Despite the fact that the Ninth Circuit’s ruling refuses to reinstate EO 13769’s travel ban, it is important to note that this situation will continue to be fluid, and the Trump administration will very likely seek to appeal this latest decision. As such, we continue to advise that individuals from the seven restricted countries who are presently in the U.S. forego unnecessary international travel at this time. In addition, for those individuals from the restricted countries who have valid U.S. visas, who are presently outside the U.S. and who have the intent to return to the U.S., we recommend that they consider traveling to the U.S. while there remains an opportunity to do so.