Ninth Circuit Upholds Suspension of Executive Order's Travel and Refugee Ban

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Executive Summary: The U.S. Circuit Court of Appeals for the Ninth Circuit has affirmed the district court’s decision to enjoin the federal government from enforcing key portions of President Trump’s Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The Ninth Circuit’s decision means that, for the time being, key provisions of the Executive Order will not be enforced, and the U.S. will continue to admit approved refugees, as well as travelers with valid U.S. visas from the seven impacted nations (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen).

In denying the federal government’s motion, the Ninth Circuit held that, at this preliminary stage, the federal government has not shown a likelihood of success on the merits of its appeal or that the failure to reverse the lower court’s injunction would cause irreparable injury. Additionally, the court held that the plaintiffs (the States of Washington and Minnesota) “have offered ample evidence that if the executive order were reinstated even temporarily, it would substantially injure the states and ‘multiple other parties interested in the proceeding.’”

The Ninth Circuit stated, “[i]n short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

The Executive Order

As discussed in more detail in our February 1, 2017 Alert, the Executive Order imposes a 90-day entry ban for nationals of Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen, targeting “nationals of countries of particular concern” for suspension of visa and other immigration benefits. Additionally, the Executive Order announces that the government will devise and implement new “Uniform Screening Standards” on all immigration programs, suspends the U.S. refugee program for 120 days, and permanently bans refugees from Syria.

Impact of the Ninth Circuit’s Decision

The Ninth Circuit’s decision upholds the lower court’s preliminary injunction halting enforcement of key portions of the Executive Order. However, the federal government could now ask the full Ninth Circuit for an emergency order ending the injunction, or it could seek Supreme Court intervention. Additionally, the substantive challenges to the Executive Order are still pending in the district court that issued the injunction.   If the district court ultimately rejects these challenges, the Executive Order likely will be reinstated. Thus, even though the ban is currently suspended, any international travel could still be risky for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen who are neither U.S. lawful permanent residents nor dual citizens holding a passport from a non-banned country.

Prior to the suspension of the ban, the Administration clarified a few aspects about the scope of the ban:

  • The ban does not apply to U.S. citizens.
  • The ban does not apply to U.S. lawful permanent residents regardless of national origin or citizenship.
  • The ban should not apply to dual citizens of a banned country and a non-banned country, provided that the individual presents a passport from a non-banned country with a valid U.S. visa when seeking admission to the U.S. 

The Department of Homeland Security is currently following standard policies and procedures as they existed prior to the President signing the Executive Order on January 27, 2017, but there are ongoing reports of confusion at foreign airports regarding who may or may not board flights to the U.S.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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