Travel Ban Update: Ninth Circuit Ruling and What’s Next

Morgan Lewis
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Morgan Lewis

Ninth Circuit affirms injunction of travel ban; interior enforcement begins.

US President Donald Trump’s executive order (EO)—which included directives to ban the entry of individuals from seven Muslim-majority countries for 90 days—remains on hold after the US Court of Appeals for the Ninth Circuit rejected the administration’s request to stay a temporary restraining order (TRO) issued by federal judge James Robart on February 3. Following an emergency hearing before an appellate panel of three judges, the court’s ruling found that the government’s motion to stay the TRO (i.e., to reinstate the EO pending further litigation on the merits) failed to show sufficient likelihood of ultimate success on the merits and failed to demonstrate irreparable injury to the public interest absent a stay of the TRO.

The litigation relating to the EO is still in its early stages, a fact that the court conceded in its decision when it stated that it weighed the relevant factors “in light of the limited evidence put forward by both parties at this very preliminary stage.” The government may now seek additional appellate review of the TRO before the US Supreme Court, or it could request an en banc hearing before the Ninth Circuit (a hearing before a panel of eleven judges, three of whom are the judges who already ruled). The former scenario is more likely given the time-sensitive nature of the case. If the Supreme Court were to take the matter, it could choose to uphold the order, uphold it in part and reverse in part, or even send it back to Judge Robart for further proceedings on the merits. Note that the Supreme Court currently has eight justices, and a 4-4 tie would affirm the lower court’s ruling but also send the case back to the district court in Washington State.

It is important to note that the appellate process is not the Trump administration’s only outlet to press the agenda expressed by the EO. The president could, for example, issue a modified EO that would seek to cure some of the perceived constitutional deficiencies in the original. This might include a travel ban carve-out for legal permanent residents or the removal of references to religious minorities in its refugee provisions. In addition, because aspects of the current order are only valid for 90 days, this option could be of longer duration than the original.

Thus, the situation remains somewhat fluid. As of the present time, nonimmigrant and immigrant visa issuance, as well as admission of foreign nationals at ports of entry, remain in “business as usual” mode, as if the EO had not been issued.

We are monitoring the situation and will provide updates as new developments occur.

Increase in ICE Raids Reported Nationwide

As of the morning of February 10, there have been widespread reports of increased raid and removal activity by Immigration and Customs Enforcement (ICE) nationwide. This is not wholly unexpected and is in accordance with the Trump administration’s enforcement priorities as announced in the president’s January 25 executive order, “Enhancing Public Safety in the Interior of the United States.”

We anticipate increased activity by ICE at worksites as well. In this environment of increased ICE enforcement, it is advisable to ensure corporate compliance with all federal immigration rules, including those relating to employment eligibility verification and recordkeeping, use of e-Verify (if applicable), and compliance with recordkeeping obligations related to H-1B visas and Program Electronic Review Management (PERM) labor certifications.

 

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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