On March 15, 2017, the U.S. District Court for the District of Hawaii issued a Temporary Restraining Order (TRO), effective nationwide, enjoining the implementation of President Donald J. Trump’s March 6, 2017, Executive Order temporarily banning travel to the United States by foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen.
The court found that “the Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief.”
The new Executive Order had been issued in an effort to address concerns expressed in prior litigation that resulted in a temporary restraining order against the earlier order. Principal concerns focused on what the Court found to be a likely Establishment Clause violation in connection with the banning of travelers from countries that have a majority Muslim population.
The Executive Order, entitled “Executive Order Protecting The Nation From Foreign Terrorist Entry into The United States,” was set to take effect on March 16, 2017. It is now subject to a TRO while the parties move forward in litigation.
Under the new Executive Order citizens of Iran, Libya, Syria, Somalia, Sudan, and Yemen, which were included in the original ban, would be subject to a 90-day travel ban. Additionally, the U.S. Refugee Admissions Program (USRAP) would also be suspended for a period of 120 days. Unlike the previous order, the new Executive Order did not give priority to religious minorities, and Syrian refugees have not been specifically targeted. The new Executive Order also clearly did not apply to U.S. lawful permanent residents (“green card” holders), or to those who already have valid visas for entry into the United States. Additionally, certain individuals already present in the United States pursuant to lawful student or temporary worker status were also exempt from the new Executive Order, and dual citizens of an affected country and a country not subject to the order would not be subject to the ban when traveling on the unaffected passport with the appropriate entry documents.
By the terms of the TRO, “Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.”
It is likely that the Federal Government will appeal the TRO and continue to litigate the ultimate legality of the travel ban. Foster will continue to monitor the litigation and will provide updates as they become available via Foster’s website at www.fosterglobal.com, and via future Immigration Updates©.