On Wednesday, March 15, 2017, the U.S. District Court for the District of Hawaii issued a temporary restraining order (TRO) blocking implementation of key portions of the second version of the executive order (EO) issued by President Donald Trump banning entry into the United States by nationals of six designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. President Trump issued the revised EO on March 6, 2017 in an effort to avoid the issues that had led a district court in Washington state to order an injunction against the original EO.
Despite the fact that the second version of the EO narrowed the scope of the original by removing Iraq from the ban and by limiting its applicability to nationals who did not already have visas, and were not permanent residents (green card holders) or dual nationals, among other limitations, the Hawaii court determined that the plaintiffs had shown “a strong likelihood of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution.” The court based this determination upon a finding that a reasonable observer would conclude that the EO “was issued with a purpose to disfavor a particular religion” in violation of the Establishment Clause of the First Amendment, which prohibits limitations on free exercise of religion. The TRO temporarily blocks sections 2 (temporarily suspending entry into the United States for nationals of six designated countries) and 6 (suspending travel of refugees into the United States for 120 days) of the EO from going into effect on a nationwide basis pending further court orders and litigation. Other provisions from the EO, such as the suspension of the Visa Interview Waiver Program addressed in Section 9, were not covered by the TRO, and, barring any injunction from any other court challenge, are set to take effect on March 16, 2017.
The first EO was originally signed by President Trump on January 27, 2017. Hawaii federal judge Derrick Watson found that the revised EO, also titled Protecting The Nation From Foreign Terrorist Entry Into The United States, although textually based on nationality, did not demonstrate that the purpose of the order was primarily secular, given the orders’ context and history. President Trump has already publicly vowed to continue to litigate the constitutionality of his second EO to the Supreme Court. The Department of Justice released a statement on March 16, 2017, stating it “strongly disagrees with the federal district court’s ruling” and arguing that the president’s EO falls squarely within his lawful authority in seeking to protect national security. Currently the TRO will enjoin enforcement of the new EO across the nation and in the issuance of visas, pending further court orders. The court will schedule an expedited hearing to determine whether further extension of the TRO is warranted.
Despite the TRO, employers should take note that further legal developments could hold implications for their employees who are nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen and who might be subject to the provisions of the EO. Foreign nationals from one of the designated countries who fit within the EO’s provisions should understand that, should the TRO be overturned or expire; they would risk being refused admission back into the United States upon return from any international travel. At the same time, however, many foreign nationals, even some from the designated countries, remain eligible to request admission to the United States under the terms of the revised EO regardless of the TRO. Those foreign nationals who fall outside the scope of the EO include:
- foreign nationals from one of the six designated countries who hold a currently valid visa;
- foreign nationals from one of the six designated countries who held a valid visa on January 27, 2017 (the order instructs that foreign nationals whose visa was revoked or marked canceled based on the prior version of this executive order are entitled to request a travel document that confirms they are permitted to travel to the United States and request admission);
- lawful permanent residents;
- foreign nationals who are admitted or paroled into the United States on the effective date of this order;
- foreign nationals who hold a document other than a visa that is valid on the effective date of the EO or is issued after the EO that permits travel and the ability to request admission to the United States, including advance parole documents;
- a dual national of a designated and non-designated country traveling on a passport from a non-designated country;
- foreign nationals from the six designated countries who apply for diplomatic or diplomatic-type visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, or G-1, G-2, G-3, or G-4 visas; and
- any foreign national granted asylum; any refugee already admitted to the United States; and individuals granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to President Trump’s executive orders regarding immigration and post updates as additional guidance becomes available.