On September 24, 2017 President Trump announced an extended and enhanced version of the travel ban that was previously in place under Executive Order 13780 (EO-2). The Presidential Proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats,” a related Fact Sheet, and FAQs for the new ban are available on the White House website. As with EO-2, the ban affects immigrant and nonimmigrant visa issuance only. Therefore, nationals from the affected countries who already hold visas will not have those revoked. The U.S. Department of State has also announced that previously scheduled visa appointments will not be cancelled.
Update: Effect of new litigation in Hawaii and U.S. Supreme Court on Second Executive Order / Travel Ban 2.0
As noted in our prior blog post, the U.S. Supreme Court has partially reinstated the Trump Administration’s second Executive Order regarding travel and refugee admissions (“EO-2”), after several lower court orders impeded its implementation. However, the Supreme Court did exempt from EO-2’s reach nationals of the six affected countries with a “credible claim of a bona fide relationship with a person or entity in the United States,” such as a “close familial relationship.
Update: Effect of U.S. Supreme Court Order on Second Executive Order / Travel Ban 2.0
Executive Order 13780 (EO-2), signed by President Trump on March 6, 2017, ordered the suspension of entry by citizens and nationals of six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – for at least 90 days from its effective date of March 16, 2017. Litigation in U.S. federal courts temporarily prevented the ban from being carried out. The Trump Administration appealed these courts’ decisions and, on June 26, 2017, the Supreme Court of the United States (SCOTUS) decided to hear the Trump Administration’s appeals. Pending its full review and decision, SCOTUS partially reinstated EO-2.
U.S. Supreme Court Order on Second Executive Order / Travel Ban 2.0
On June 26, 2017, the Supreme Court of the United States (SCOTUS) decided to hear the Trump Administration’s appeals from the decisions of the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals, related to the administration’s second Executive Order regarding travel and refugee admissions (“EO-2”). SCOTUS will hear arguments from the parties in October 2017.
Ninth Circuit Decision on Travel Ban 2.0
News Release from Jewell Stewart & Pratt PC
On June 12, 2017 the U.S. Court of Appeals for the Ninth Circuit issued an order upholding the District Court’s decision to block President Trump’s second Executive Order regarding travel and refugee admissions (i.e., “Travel Ban 2.0”).
The Ninth Circuit’s order states that “the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress” and that “the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination.” The court affirmed the lower court’s decision to enjoin the travel ban and prevent suspension or limitations to the refugee program. However, the court also vacated the lower court’s decision to prevent the government’s internal reviews of visa issuance procedures.
The Ninth Circuit’s decision follows on the heels of the Fourth Circuit’s May 25, 2017 decision also blocking the ban. The administration is already seeing U.S. Supreme Court review of the Fourth Circuit decision.
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New Executive Order to "Buy American, Hire American" requires government agencies to suggest reforms to “promote the proper functioning of the H-1B visa program”
News Release from Jewell Stewart & Pratt – April 18, 2017 An Executive Order signed by President Trump on April 18, 2017 directs the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to, among other items, (1) suggest reforms to help “promote the proper functioning of the H-1B visa program", including ensuring that H-1B visas are awarded to the most-skilled or highest-paid beneficiaries; and (2) propose new rules and issue new guidance to protect the interests of U.S. workers in the administration of the U.S. immigration system, "including through the prevention of fraud or abuse." However, the Executive Order makes no immediate changes to any nonimmigrant visa programs, including the H-1B program. It also does not provide a deadline for the agencies to produce their proposals, guidance, and suggested reforms.
© Jewell Stewart & Pratt PC 2017
Travel Ban 2.0 Blocked Indefinitely
News Release from Jewell Stewart & Pratt – March 30, 2017 As reported on March 30, 2017 by Laura Jarrett, CNN, “A federal judge in Hawaii granted the state’s request for a longer-term halt of the revised travel ban executive order Wednesday [March 29th]. U.S. District Court Judge Derrick Watson blocked the core provisions of the revised executive order two weeks ago, concluding that the order likely violates the Establishment Clause of the Constitution by disfavoring Muslims. But Watson’s earlier decision was only a limited freeze of the executive order through a temporary restraining order. As a result, the plaintiffs asked the judge to convert that decision into a longer-term preliminary injunction and Watson agreed Wednesday night, meaning that the President’s 90-day ban on foreign nationals from six Muslim-majority countries and the 120-ban on all refugees entering the country are now blocked indefinitely, unless any higher court changes Watson’s order or the state’s lawsuit is otherwise resolved.”
Update: The Trump Administration filed an appeal to the District Court's ruling on March 30.
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State Department guidance to consular posts on heightened screening and vetting of visa applicants worldwide: "all visa decisions are national security decisions"
Following the issuance of Executive Order 13780 by President Trump on March 6, 2017 (banning visa issuance to nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen) and the associated presidential memo to the Secretaries of State, Justice, and Homeland Security directing their agencies to implement protocols and procedures on screening and vetting of visa applicants, Secretary of State Rex Tillerson issued a series of four cables to U.S. consular posts abroad.
Temporary Restraining Order Issued for Travel Ban 2.0
News Release from Jewell Stewart & Pratt – March 15, 2017 On March 15, 2017, the U.S. District Court for the District of Hawaii issued a temporary restraining order prohibiting the federal government from enforcing the travel ban in the March 6, 2017 Executive Order (EO) on a nationwide basis. In his order, U.S. District Judge Derrick K. Watson stated that the EO was “issued with a purpose to disfavor a particular religion” and that “nationwide relief is appropriate in light of the likelihood of success.” The travel ban will therefore not take effect on March 16, and the government is prohibited from enforcing the travel ban until further ordered from the court. As with the previous litigation, there may be further hearings before a permanent order is issued.
Update: On March 16, the U.S. District Court for the District of Maryland separately issued a ruling barring the implementation of the EO. The Department of State also issued a statement of compliance with the court orders.
© Jewell Stewart & Pratt PC 2017
Revised travel ban issued
An Executive Order signed by President Trump on Monday, March 6, 2017 suspends entry by citizens and nationals of six countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen -- for at least 90 days from the new order’s effective date of March 16, 2017. The March 6, 2017 Executive Order (EO) expressly revokes and replaces EO 13769 of January 27, 2017, which banned travel by nationals of seven countries, including Iraq, which is not designated in the new EO.
Revised travel ban delayed again
News Release from Jewell Stewart & Pratt – March 1, 2017 According to reports on March 1, 2017, the White House has further delayed issuing its revised travel ban. News reports on February 28th and March 1st indicate that the new ban will exclude Iraq from the list of seven countries whose citizens are to be banned, and that the ban will not apply to U.S. permanent residents and existing visa holders. Reportedly, the revised ban will have a “phased-in” approach to minimize disruption to travelers in transit. These reports have not been confirmed or denied in official government statements.
© Jewell Stewart & Pratt PC 2017
New travel ban to be issued on Wednesday, March 1
News Release from Jewell Stewart & Pratt – February 27, 2017 As of February 27, 2017, a revised “travel ban” has not been released by the White House. Reports indicate that it may be released on Wednesday, March 1. To date, there are no confirmed reports of what the revised ban will entail. We are watching closely for developments.
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Immigration enforcement and travel ban updates
News Release from Jewell Stewart & Pratt – February 23, 2017 On Monday, February 20, 2017, the U.S. Department of Homeland Security (DHS) issued two memoranda to its sub-agencies concerning immigration enforcement and in particular the agency’s plans for implementing President Trump’s two Executive Orders related to U.S. border and interior enforcement. The DHS memoranda rescind and replace all previous agency guidance regarding enforcement priorities against undocumented immigrants (with the exception of President Obama’s Dreamer and DACA/DAPA orders), expanding the pool of persons prioritized for removal to include undocumented immigrants who have been charged with (not necessarily convicted of) any criminal offense, or who have “committed acts” that constitute a chargeable offense. The memoranda also end long-standing protections to children, massively expand immigration detention, and call for the hiring of thousands of ICE and CBP officers. Further commentary is available here.
As of February 23, 2017, a revised “travel ban” has not been released by the White House. Reports indicate that it may be released in the week of February 27th. To date, there are no confirmed reports of what the revised ban will entail.
© Jewell Stewart & Pratt PC 2017
White House intends to issue new travel ban
News Release from Jewell Stewart & Pratt – February 16, 2017 In briefing filed with the Ninth Circuit Court of Appeals on February 16, 2017, the White House indicated that it was not seeking further review of the travel ban that was part of Executive Order 13769. Instead, it stated that it intends to issue a new Executive Order intended to “eliminate . . . constitutional concerns” with the initial order. If a new Executive Order is released, it would likely moot the existing litigation.
We are watching closely for developments related to the litigation and any new Executive Orders related to travel. In the meantime, unless/until a new Executive Order is released and the litigation is vacated by a court, all U.S. land and air ports of entry are prohibited from enforcing Executive Order 13769 until further orders from a court.
Update: On February 16th the Ninth Circuit issued an order stating that en banc proceedings are stayed pending further orders of the court. President Trump stated in a news conference that the new executive order would be issued next week.
© Jewell Stewart & Pratt PC 2017
Next steps in the travel ban litigation
News Release from Jewell Stewart & Pratt – February 14, 2017 As noted previously, on February 9, 2017, the Ninth Circuit Court of Appeals, in a per curiam order, denied the federal government’s motion for an emergency stay. The order barring implementation of the travel and refugee ban therefore remains in place.
On February 10, a Ninth Circuit judge made a sua sponte request that a vote be taken as to whether the order issued by the three-judge panel on February 9 should be reconsidered en banc. Briefs on whether the matter should be reconsidered en banc are due by February 16. Therefore, February 16 is the earliest date on which a Ninth Circuit decision regarding re-hearing the February 9 panel decision would be issued.
© Jewell Stewart & Pratt PC 2017
Next steps in the travel ban litigation
News Release from Jewell Stewart & Pratt – February 10, 2017 As noted previously, on February 9, 2017, the Ninth Circuit Court of Appeals, in a per curiam order, denied the federal government’s motion for an emergency stay, finding that it failed to show a likelihood of success on the merits of its appeal, and that it also failed to show that the lack of a stay would cause irreparable injury. Therefore, until further action by a court, the order barring implementation of the travel and refugee ban remains in place, and all individuals may apply for visas and admission to the United States without regard to nationality.
In terms of next steps, the U.S. District Court for the Western District of Washington has ordered all briefing associated with the State of Washington and State of Minnesota’s motion for preliminary injunction to be completed by Friday, February 17, 2017. A hearing on the preliminary injunction has not yet been scheduled. In the meantime, the White House may seek Supreme Court intervention although five of the current 8 justices would need to vote to overturn the Circuit Court’s decision (a 4-4 split would simply re-affirm the Circuit Court’s decision).
Update: According to reports, the White House won’t immediately appeal to the Supreme Court, but the Ninth Circuit may re-hear the case en banc.
© Jewell Stewart & Pratt PC 2017
Ninth Circuit denies White House motion to re-instate travel ban
News Release from Jewell Stewart & Pratt – February 9, 2017
On February 9, 2017, the Ninth Circuit Court of Appeals denied the White House’s motion to re-instate the travel ban in Executive Order 13769.
The United States District Court for the Western District of Washington’s temporary restraining order, prohibiting the federal government from enforcing the travel ban on a nationwide basis, is still in place. All U.S. land and air ports of entry are prohibited from enforcing the Executive Order until further orders from the court.
© Jewell Stewart & Pratt PC 2017
Temporary restraining order prohibiting enforcement of Executive Order 13769 still in place
News Release from Jewell Stewart & Pratt – February 8, 2017
The United States District Court for the Western District of Washington’s temporary restraining order, prohibiting the federal government from enforcing the travel ban in Executive Order 13769 of January 27, 2017 on a nationwide basis, is still in place.
The White House’s motion for a stay of the District Court’s decision to lift the travel ban, before the Ninth Circuit Court of Appeals, is expected to be ruled on this week. In the meantime, all U.S. land and air ports of entry are prohibited from enforcing the Executive Order until further orders from the court.
© Jewell Stewart & Pratt PC 2017
Temporary restraining order prohibiting enforcement of Executive Order 13769 still in place
News Release from Jewell Stewart & Pratt – February 6, 2017 As of Monday, February 6, 2017, the United States District Court for the Western District of Washington’s temporary restraining order prohibiting the federal government from enforcing the travel ban in Executive Order 13769 of January 27, 2017 on a nationwide basis is still in place.
The White House’s motion for a stay pending its appeal before the Ninth Circuit Court of Appeals is set for oral argument at 3:00 PM PT on Tuesday, February 7th in front of a three-judge panel. All U.S. land and air ports of entry are prohibited from enforcing the Executive Order until further orders from the court.
© Jewell Stewart & Pratt PC 2017
Temporary restraining order issued, travel ban lifted
On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order prohibiting the federal government from enforcing the travel ban in the January 27, 2017 Executive Order (EO) on a nationwide basis. All U.S. land and air ports of entry are prohibited from enforcing these portions of the EO until further ordered from the court.