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9th Circuit Court of Appeals Declines to Lift Temporary Restraining Order on President Trump’s Executive Order “Protecting the National from Foreign Terrorist Entry into the United States”

10 Feb

On Thursday, February 9th, the U.S. Court of Appeals for the Ninth Circuit declined to lift the February 3rd temporary restraining order halting the implementation of President Trump’s Executive Order “Protecting the National from Foreign Terrorist Entry into the United States.” The Presidential Executive Order includes a travel ban on immigrants and nonimmigrants from seven countries, the suspension of the U.S. Refugee Admission Program, the indefinite suspension of Syrian refugee admissions, and the prioritization of claims and admissions of refugees of certain religious minorities.

What Does this Mean?

The Ninth Circuit Court of Appeals unanimously denied in a 29-page decision the Federal Government’s request for an emergency stay, or reversal, of the district court’s temporary restraining order while its appeal of that order continues.

This does not mean that the Ninth Circuit has decided in favor of the states of Washington and Minnesota on the legality of the Executive Order, or with the lower court’s rationale for issuing the injunction. The 9th Circuit court cited prior U.S. Supreme Court cases saying that, although courts owe considerable deference to the President’s actions on immigration and national security, the President’s actions must still be Constitutional and federal courts can review those actions.

The decision does mean that implementation of the Executive Order cannot move forward unless the temporary restraining order is later lifted or the U.S. Department of Justice prevails on the merits.

The Trump Administration may now:

  1. Appeal to the U.S. Supreme Court to request that the temporary restraining order be lifted;
  2. Appeal to the full panel of the 9th Circuit to request that the temporary restraining order be lifted;
  3. Wait for the hearing on the merits before the U.S. District Court for the Western District of Washington on the legality of the executive order under the U.S. Constitution and federal immigration laws; or
  4. Write a new executive order, more narrowly focused and tailored to account for the federal judiciary’s enumerated issues with the current order

How Does this Impact Nationals from the Affected Seven Countries and Refugees?

We continue to recommend caution for the affected nationals of Syria, Iraq, Iran, Libya, Sudan, Yemen, and Somalia currently inside the United States. If international travel is necessary, please contact your Foster immigration attorney in advance of travel to discuss the risks of such travel.

As new details impacting the implementation of this executive order become available, Foster will provide additional information in future Immigration Updates© and on our firm’s website at