Ninth Circuit Allows Partial Enforcement of Trump’s Travel Ban 3.0

November 27, 2017

On November 13, 2017, the Ninth Circuit Court of Appeals partially lifted the temporary restraining order (TRO) issued by a Federal District Judge in Hawaii on the Trump Administration’s third iteration of its travel ban on nationals from certain designated countries. The Ninth Circuit’s order allows for partial enforcement of the Presidential Proclamation “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into The United States by Terrorists or Other Public-Safety Threat” pending hearing and resolution of the appeal before the Ninth Circuit.
 
The Presidential Proclamation issued on September 24, 2017 places indefinite and country-specific travel restrictions for eight designated countries: Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea and Venezuela, which were to be phased-in in two stages with Iran, Libya, Somalia, Syria, and Yemen taking immediate effect on September 24, 2017, and Chad, North Korea and Venezuela taking effect on October 18, 2017. Despite the Administration’s perceived attempt to avoid federal litigation through the addition of two non-Muslim countries, North Korea and Venezuela, two lawsuits were filed in federal courts in Hawaii and Maryland resulting in two separate, nationwide TROs blocking enforcement of portions of the Presidential Proclamation that restricted travel from six of the eight designated countries - Iran, Libya, Somalia, Syria, Yemen, Chad – on the eve of the effective date of October 18, 2017. The TRO issued by the federal judge in Hawaii halted the full enforcement of the travel restrictions on nationals from the six designated countries whereas the federal judge in Maryland limited the scope of its TRO to block enforcement of the travel restrictions for individuals from the six designated countries who have a bona fide relationship to a person or entity in the United States. Similar to the federal litigation that affected the previous travel bans, both lawsuits claim the Presidential Proclamation unconstitutionally discriminates against Muslims. Neither TRO however blocked enforcement of the portions of the Presidential Proclamation affecting individuals from North Korea and Venezuela, which went into effect on October 18, 2017 as planned. In response to the nationwide TROs, the Department of State issued a directive to the U.S. Embassies in the six designated countries to continue processing U.S. visas. On October 20, 2017, the Department of Justice filed an appeal of the Maryland order before the Fourth Circuit and an appeal and emergency motion to stay the Hawaii order was filed before the Ninth Circuit on October 24, 2017.
 
In the two-page order issued on November 13, 2017, the Ninth Circuit granted, in part, the Trump Administration’s emergency motion to stay the TRO by allowing the travel ban to go into effect, and denied it, in part, as it applies to nationals with a bona fide relationship to a person or entity in the United States.  Under this order, the TRO will partially remain in place, permitting individuals from the six designated countries who have a credible claim of a close familial relationship, including grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins of U.S. citizens or legal residents, or a relationship to an entity such as an employer or school, to travel to the United States.
 
Oral arguments before the Ninth Circuit and the Fourth Circuit are scheduled to take place in early December 2017. For the Presidential Proclamation to go into full effect, the Trump Administration will need to prevail in both appeals. It will be interesting to see if the Trump Administration’s changes in its third travel ban will hold, as both the Fourth Circuit and the Ninth Circuit previously ruled against the second travel ban for being unconstitutionally discriminatory against Muslims.
 
As we are fast- approaching the holiday travel season, we recommend that nationals from the designated countries who are present in the United States on nonimmigrant visas speak to an immigration attorney before traveling outside the United States.

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