BREAKING: Hawaii District Court Applies the Brakes to Second Version of President Trump’s Immigration Travel Ban

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

On Wednesday, March 15, 2017, the U.S. District Court for the District of Hawaii issued a temporary restraining order (TRO) blocking implementation of key portions of the second version of the executive order (EO) issued by President Donald Trump banning entry into the United States by nationals of six designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. President Trump issued the revised EO on March 6, 2017 in an effort to avoid the issues that had led a district court in Washington state to order an injunction against the original EO.

Despite the fact that the second version of the EO narrowed the scope of the original by removing Iraq from the ban and by limiting its applicability to nationals who did not already have visas, and were not permanent residents (green card holders) or dual nationals, among other limitations, the Hawaii court determined that the plaintiffs had shown “a strong likelihood of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution.” The court based this determination upon a finding that a reasonable observer would conclude that the EO “was issued with a purpose to disfavor a particular religion” in violation of the Establishment Clause of the First Amendment, which prohibits limitations on free exercise of religion. The TRO temporarily blocks sections 2 (temporarily suspending entry into the United States for nationals of six designated countries) and 6 (suspending travel of refugees into the United States for 120 days) of the EO from going into effect on a nationwide basis pending further court orders and litigation. Other provisions from the EO, such as the suspension of the Visa Interview Waiver Program addressed in Section 9, were not covered by the TRO, and, barring any injunction from any other court challenge, are set to take effect on March 16, 2017.

The first EO was originally signed by President Trump on January 27, 2017. Hawaii federal judge Derrick Watson found that the revised EO, also titled Protecting The Nation From Foreign Terrorist Entry Into The United States, although textually based on nationality, did not demonstrate that the purpose of the order was primarily secular, given the orders’ context and history. President Trump has already publicly vowed to continue to litigate the constitutionality of his second EO to the Supreme Court. The Department of Justice released a statement on March 16, 2017, stating it “strongly disagrees with the federal district court’s ruling” and arguing that the president’s EO falls squarely within his lawful authority in seeking to protect national security. Currently the TRO will enjoin enforcement of the new EO across the nation and in the issuance of visas, pending further court orders. The court will schedule an expedited hiring to determine whether further extension of the TRO is warranted.

Despite the TRO, employers should take note that further legal developments could hold implications for their employees who are nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen and who might be subject to the provisions of the EO. Foreign nationals from one of the designated countries who fit within the EO’s provisions should understand that, should the TRO be overturned or expire; they would risk being refused admission back into the United States upon return from any international travel. At the same time, however, many foreign nationals, even some from the designated countries, remain eligible to request admission to the United States under the terms of the revised EO regardless of the TRO. Those foreign nationals who fall outside the scope of the EO include:

  • foreign nationals from one of the six designated countries who hold a currently valid visa;
  • foreign nationals from one of the six designated countries who held a valid visa on January 27, 2017 (the order instructs that foreign nationals whose visa was revoked or marked canceled based on the prior version of this executive order are entitled to request a travel document that confirms they are permitted to travel to the United States and request admission);
  • lawful permanent residents;
  • foreign nationals who are admitted or paroled into the United States on the effective date of this order;
  • foreign nationals who hold a document other than a visa that is valid on the effective date of the EO or is issued after the EO that permits travel and the ability to request admission to the United States, including advance parole documents;
  • a dual national of a designated and non-designated country traveling on a passport from a non-designated country;
  • foreign nationals from the six designated countries who apply for diplomatic or diplomatic-type visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, or G-1, G-2, G-3, or G-4 visas; and
  • any foreign national granted asylum; any refugee already admitted to the United States; and individuals granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to President Trump’s executive orders regarding immigration and post updates as additional guidance becomes available.

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.