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UPDATE: Ninth Circuit Upholds TRO Halting President Trump’s Immigration Travel Ban

Authors: Marifrances Morrison (Raleigh), Lowell Sachs (Raleigh), Justin S. Coffey (Raleigh), Jacob D. Cherry (Atlanta), Marissa E. Cwik (Raleigh)

Published Date: February 9, 2017

On Thursday, February 9, 2017, the Ninth Circuit Court of Appeals denied the U.S. Department of Justice’s (DOJ) emergency motion for a stay in a case that suspended implementation of certain sections of an executive order (EO) issued by President Donald Trump restricting admission to the United States of foreign nationals from designated countries and certain refugees. State of Washington, et al. v. Donald J. Trump, et al., No. 17-35105 (9th Cir., February 9, 2017). At this time, foreign nationals can continue to apply for admission to the United States and eligibility for entry is not restricted by country of nationality.

The EO, “Protecting the Nation from Foreign Terrorist Entry into the United States,” was originally signed by President Trump on January 27, 2017. On February 3, 2017, the U.S. District Court for the Western District of Washington granted a temporary restraining order (TRO) that halted implementation of the EO while litigation challenging the EO is pending. Following that ruling, DOJ promptly filed its appeal requesting an emergency stay of the TRO. This action by the Ninth Circuit leaves in place the district court’s TRO, which halts—on a nationwide basis—enforcement of several of the EO’s main provisions including section 3(c) (regarding the 90-day suspension of entry into the United States of immigrants and non-immigrants from designated countries), section 5(a) (regarding the 120-day suspension of the U.S. Refugee Admissions Program), section 5(b) (regarding the prioritization of refugee claims on the basis of religious-based persecution if the individual is from a minority religion), section 5(c) (halting admission of Syrian refugees), and section 5(e) (regarding refugee admission on a case-by-case basis if admission is determined to be in the national interest). The U.S. Department of Justice may appeal the Ninth Circuit’s decision to the Supreme Court of the United States. 

The underlying complaint, filed on January 30, 2017, sought declaratory and injunctive relief to invalidate key portions of President Trump’s EO.  For now, the TRO will remain in place while the U.S. District Court for the Western District of Washington holds a hearing on a motion for preliminary injunction in the case, or until the Supreme Court rules on a motion. 

The Department of Homeland Security confirmed that it will suspend implementation of the EO as mandated by the TRO and resume inspection of travelers in accordance with its standard procedures, and U.S. Customs and Border Protection has reportedly informed airlines that they may again board individuals from the countries designated in the EO. In addition, the U.S. Department of State has informed the American Immigration Lawyers Association that any visas that had been provisionally revoked solely pursuant to the EO are now valid, in compliance with the TRO.

The Ninth Circuit’s decision notwithstanding, the swiftly evolving nature of these cases, the impending likelihood of further appeal, and the temporary nature of the relief, suggest that the situation may continue to change in ways, and with timing, that are difficult to predict.

Marifrances Morrison  (Raleigh)

Marifrances Morrison
Ms. Morrison is a shareholder in the firm’s Raleigh, North Carolina office and a member of the firm’s Board of Directors. She provides comprehensive business immigration representation to Fortune 500 companies with a special emphasis on supporting companies from the financial services, technology, semiconductor, and life science industries. Ms. Morrison’s immigration practice is national in scope, and is distinguished by her emphasis on delivering clients with end-to-end,...

Lowell Sachs  (Raleigh)

Lowell Sachs
*Licensed only in Maryland. Mr. Sachs is Marketing Counsel with the firm’s Client Services department. In this role he works with attorneys across the firm and with other client services professionals to advance strategic marketing, communication, branding and business development efforts with a particular focus on support for the Immigration and Government Affairs practice groups. Before joining Ogletree Deakins, Mr. Sachs served in senior strategic communication roles with organizations...

Justin S. Coffey  (Raleigh)

Justin S. Coffey
*Currently licensed in New York only. Mr. Coffey is an attorney in the Immigration Practice Group of Ogletree's Raleigh office. He has served as a member of the Board of Directors of the International and Immigration Law Section of the Atlanta Bar Association, and served as Chair of the Board in 2011. He has authored over 35 immigration law related publications. Mr. Coffey's practice focuses exclusively on business immigration; he advises large multinational companies on all aspects of...

Jacob D. Cherry  (Atlanta)

Jacob D. Cherry
*Currently licensed in Maryland only. Jacob D. Cherry is an immigration attorney in the Atlanta office. His practice is focused on employment-based immigration and worksite compliance matters. Jacob works with multinational organizations to secure immigration benefits for their employees and provide guidance on immigration-related compliance matters. Jacob also counsels and advises employers on the implementation of immigration programs that align with specific hiring, employee retention, and...

Marissa E. Cwik  (Raleigh)

Marissa E. Cwik
*Currently licensed in Tennessee and Minnesota only. Marissa Cwik is an Associate in the Raleigh office of Ogletree Deakins. Marissa assists corporate clients with hiring and retaining foreign national workers. She has expertise with nonimmigrant filings presented to the U.S. Department of State, U.S. Department of Homeland Security, and the U.S. Department of Labor, including E, H, J-1, L, O, P, and TN nonimmigrant petitions. She is also experienced in supporting corporate clients with...