On February 9, 2017, a three-judge panel of the U.S. 9th Circuit Court of Appeals ruled unanimously against the Government’s emergency motion to stay the District Court’s Temporary Restraining Order (the “TRO”) halting the implementation of major portions of President Trump’s January 27th Executive Order. (See our previous alerts on the order here, or click here to view a video featuring Susan Cohen, Chair of Mintz Levin’s Immigration Practice.)  Therefore, the TRO remains in effect and travel to the U.S.by individuals from the seven designated countries is governed by the same laws as existing before the Executive Order.

The Appellate ruling is limited to the issue of whether the TRO should be stayed while the Government’s appeal of that order proceeds, and is not a decision on the merits of the TRO or the lawsuit challenging the constitutionality of the Executive Order. In denying the motion to stay the TRO, the judges held that the Government did not meet its burden of proving a likelihood of success on the merits of its appeal nor that a failure to enter the stay would cause irreparable injury.

In reaching its decision, the judges first cleared two preliminary legal hurdles holding: (1) that the Court of Appeals does have jurisdiction over the matter; and (2) that the plaintiffs, the States of Washington and Minnesota, did have standing to bring the lawsuit. Significantly the Court then addressed the Government’s contention that the President has “unreviewable authority to suspend the admission of any class of aliens.” While agreeing that courts owe “considerable deference” to the President’s policy determinations with respect to immigration and national security, the Court was unequivocal in stating that “…it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

Immediately following this decision, President Trump stated his intention to appeal. An appeal to this decision could be filed either to the 9th Circuit Court of Appeals en banc or directly to the U.S. Supreme Court. Meanwhile, related litigation continues in other states.

As this continues to be a fast-moving situation, please stay tuned for further updates regarding the status of the Executive Order and the ongoing litigation surrounding it.

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