New York Labor and Employment Law Report
Update on Executive Order 13769: "Protecting the Nation From Foreign Terrorist Entry Into the United States"
February 4, 2017
By: Kseniya Premo
We previously reported that on January 27, 2017, the Trump administration issued Executive Order 13769 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” EO 13769 suspends the entire U.S. refugee admission system for 120 days, the Syrian refugee program indefinitely, and the entry of immigrants and non-immigrants from seven designated countries of concern for an initial period of 90 days. Exactly one week later, on February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order that prohibits the federal government from enforcing EO 13769 on a nationwide basis. On February 4, 2017, the Department of Homeland Security ("DHS") issued a statement announcing that "in accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order . . .” and that “DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.” In addition, all airlines and terminal operators have been notified to permit the boarding of all passengers without regard to nationality. Similarly, the Department of State (“DOS”) confirmed that all visas that had been provisionally revoked pursuant to EO 13769 have now been reinstated and are valid once again. In response to these developments, the Trump administration announced that it would file an emergency stay of the order “at the earliest possible time.” Late in the day on February 4, the Department of Justice (“DOJ”) filed a formal notice of appeal with the United States Court of Appeals for the Ninth Circuit. The appeal sought to resume the travel ban by requesting an emergency stay of the decision issued by the U.S. District Court for the Western District of Washington. Early this morning (Sunday, February 5), the Ninth Circuit Court of Appeals issued an initial decision denying the DOJ’s emergency request. However, the federal appeals court has also asked both parties to brief their respective legal arguments before rendering its final decision. For now, the travel ban remains suspended. Developments from this past week have demonstrated that the interpretations and implementation of EO 13769 continue to fluctuate and evolve. Accordingly, individuals from the seven designated countries of concern who are currently in the United States would be well-advised not to travel outside of the United States until the issues surrounding EO 13769 have been clearly settled by the judicial system.