Ninth Circuit Blocks Entry Ban: Recent Developments re Trump Administration’s Executive Order

Below is a summary of the rapidly developing immigration-related actions of the Trump administration, and related counteractions. The situation remained fluid as of press time:

• President Trump signed an executive order on January 27,2017, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Among the most controversial aspects of the order were a ban on entry to the United States for a period of 90 days for people from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; suspension of the U.S. Refugee Admissions Program for 120 days (with indefinite suspension for refugees from Syra); and prioritizing refugee claims based on religion.
• On January 30, the state of Washington filed suit in the U.S. District Court for the Western District of Washington at Seattle, challenging several provisions of the executive order. On the same day, Washington filed an emergency motion for a temporary restraining order. Among other things, Washington alleged that the executive order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the state’s economy and public universities in violation of the First and Fifth Amendments to the U.S. Constitution and several statutes. Washington also alleged that the true intent of the executive order was not to protect against terror attacks but rather to enact a “Muslim ban.” Minnesota joined the motion.Among other things, Washington and Minnesota alleged that the teaching and research missions of their universities were harmed by the executive order’s effect on their faculty and students who are nationals of the seven affected countries. The two states said that as a result of the ban, these students and faculty were prevented from traveling for research, academic collaboration, or personal reasons, and their families abroad could not visit. Some had been stranded outside the country, unable to return to the universities at all, the two states noted. The affected schools also could not consider attractive student candidates and could not hire faculty from the seven affected countries, which they had done in the past.
• On February 1, Donald F. McGahn II, Counsel to the President, issued guidance exempting lawful permanent residents of the United States from the entry ban.
• On February 2, U.S. Citizenship and Immigration Services (USCIS) issued a memo to all its employees indicating that the executive order does not apply to USCIS adjudications of any immigrant or nonimmigrant petition, regardless of the nationality of the beneficiary, as USCIS approval notices do not confer travel authorization. USCIS therefore resumed case processing according to existing policies and procedures.
• On February 3, the U.S. District Court for the Western District of Washington at Seattle issued a temporary restraining order (TRO) temporarily disallowing the provisions of the executive order noted above, along with a reduction of the total number of refugees from 110,000 to 50,000 for fiscal year 2017, on a nationwide basis. The White House immediately appealed the TRO to the U.S. Court of Appeals in the Ninth Circuit.
• On February 9, a three-judge panel of the Ninth Circuit denied the Trump administration’s request to overturn the TRO and reinstate the executive order. Among other things, the three judges reiterated Washington’s and Minnesota’s claims and held that the states had standing. The panel rejected the government’s argument that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable even if those actions potentially contravene constitutional rights and protections. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the panel said. The judges noted that the Supreme Court “has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.”
• President Trump disagreed with the Ninth Circuit’s decision via Twitter and promised to challenge the Ninth Circuit’s order in court. He also reportedly told reporters on Air Force One that he was considering issuing a “brand new” executive order very soon to ban certain people from entering the United States, although details and a timetable were unclear at press time.
• The Department of Homeland Security (DHS) issued a statement after the Ninth Circuit’s decision that the agency “has suspended any and all actions implementing the affected sections” of the executive order. U.S. Customs and Border Protection immediately communicated to airlines worldwide to resume boarding passengers as normal.
• The Department of State communicated that it reversed its provisional cancellation of valid visas for nationals from the seven affected countries. Further guidance indicated that individuals who arrived during the ban who had their visas physically cancelled as a result of the executive order do not need to apply for a new visa. These individuals reportedly can receive an 1-193 Waiver upon arrival at a U.S. port of entry, provided that U.S. Customs and Border Protection deems them otherwise admissible.

For now, the TRO remains in effect nationwide at least until there can be a preliminary hearing on the matter. Normally, it would take a few weeks to have a preliminary hearing; however, it is not known for certain whether the TRO will hold for any specified period.

In other worrisome developments, immigration attorneys are receiving anecdotal reports that the Transportation Security Administration is asking clients traveling on domestic flights with foreign passports for copies of green cards or other documentation to prove valid immigration status. One of the reported incidents was in Hawaii where travelers were flying from one island to another.

For advice on specific situations, contact attorney Mark Ivener. If you have a foreign accent and you are traveling within 100 miles of any U.S. border (including the oceans), strongly recommend that you carry your U.S. passport, passport card, or a photocopy of your naturalization certificate. Because of the unpredictability of the current situation, recommend keeping a photocopy of these documents in a safe place, such as at your home, so that if necessary, someone will have access to it.