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.
