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Travel Ban Update: Ninth Circuit Court Refused Emergency Government Request to Resume Implementation of the Trump Administration Executive Order

As many of you know, on February 3, 2017, the United States District Court for the Western District of Washington (Judge Hobart) issued a temporary restraining order impacting the Trump Administration Executive Order issued on January 27, 2017 (Executive Order). The temporary restraining order temporarily stopped the federal government from barring the issuance of visas to, and entry of into the US, individuals based on the fact that they are from the countries of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

The very next day, on February 4, 2017, the Trump Administration filed an emergency motion for administrative stay and motion for stay pending appeal with the United States Court of Appeals for the Ninth Circuit (Ninth Circuit). That same day, the Ninth Circuit denied the Administration’s motion for an immediate administrative stay. Additionally, the Ninth Circuit required filings to be submitted for review by the parties (the States of Washington and Minnesota, and the federal government). Though the stay was temporary, a stay is granted when there’s a likelihood of success on the merits.

As a result of that stay:

• The US Department of State confirmed that all provisionally revoked visas (60,000 of them!) as a result of the Executive Order have been reversed and are valid for travel.

• Individuals from the seven affected countries may enter the U.S. while we await a ruling from the Court.

• Customs and Border Protection has also confirmed to the American Immigration Lawyers Association (AILA) that individuals whose visas were physically cancelled last week in response to the Executive Order will not need to apply for a new visa, provided there were no other eligibility issues, and will be asked to complete Form I-193 (Waiver of Visa or Passport Requirement) on application for admission.

Meanwhile, the Trump Administration has itself revised the Executive Order, explaining:

• Green Card holders are not covered by the Executive Order.
• Dual Citizens with a passport from an affected country and non-affected country will be treated as citizens of the non-affected country.
• Iraqis with Special Immigrant Visas are no longer covered by the Executive Order.

And then on February 9, 2017, a three-judge panel of the Ninth Circuit ruled that Judge Hobart’s earlier restraining order should remain in effect. The three judges, two Democratic appointees and one appointed by a Republican, unanimously said the administration had not shown an urgent need to have the order go into effect immediately.

By contrast, the panel said that the two states that had challenged the ban had shown that some of their residents would be harmed by having their right to travel cut off.

The court faulted the federal government for failing to present evidence that the ban was needed for national security, opining, “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”

The court also stated that the states were likely to succeed in their due process claim, noting that the due process protections provided under the Constitution apply not only to citizens, but to all ‘aliens’ in the country, as well as ‘certain aliens attempting to re-enter the United States after traveling abroad.’
We’ll keep you posted about further developments right on this blog.