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Enforcement Stalled for President Trump’s Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States”

4 Feb

On Friday, February 3rd, Judge James L. Robart of the U.S. District Court for the Western District of Washington granted a temporary restraining order precluding enforcement of key provisions of the President’s recent immigration executive actions. The order temporarily halts the implementation of the 90- day travel ban on immigrants and nonimmigrants from the affected seven countries, the 120-day suspension of the U.S. Refugee Admission Program, the indefinite suspension of Syrian refugee admissions, and the prioritization of claims and admission of refugees of certain religious minorities.

Why Did the Judge Issue a Temporary Restraining Order?

The decision was made in connection with a lawsuit filed by the states of Washington and Minnesota seeking a ruling that the President’s actions are unlawful under the due process and equal protection clauses of the U.S. Constitution, the establishment clause of the First Amendment, and the Immigration and Nationality Act (INA). The suit alleged that the states would suffer immediate and irreparable harm if these provisions of the executive order were implemented while the matter is litigated. The adverse economic impacts alleged include loss of state revenue from travel restrictions and harm to state institutions of higher education and its citizens.

Which United States Borders and Ports of Entry Are Affected?

In the oral opinion supporting the ruling, Judge Robart rejected the request of the Department of Justice (DOJ) that the Temporary Restraining Order (TRO) be limited to the states of Washington and Minnesota, holding that the federal government shall be enjoined and restrained from enforcing the executive order at “all United States borders and ports of entry.” The court found that the “partial implementation of the executive order would undermine the constitutional imperative of a uniform rule of naturalization and Congress’s instruction that immigration laws of the United States should be vigorously and uniform[ly]” enforced, citing the U.S. Fifth Circuit’s ruling in Texas v. United States upholding the injunction of President Obama’s executive order to implement Deferred Action for Parental Arrivals and expanded Deferred Action for Childhood Arrivals.

What Does this Mean for Future Travel of Nationals from the Affected Countries and Refugees?

While both legal and political analysts are divided on what this means for the long-term outlook of the travel ban and refugee program, all agree that enforcement of the key provisions of the executive order is currently forestalled at all U.S. borders and ports of entry.

The Department of State (DOS) confirmed that “provisionally revoked” visas have been reinstated and are valid for travel, and all Customs and Border Protection (CBP) Field Offices have been instructed to immediately resume inspection of arriving foreign nationals under the policies and procedures in force prior to the order. Airlines were notified that nationals of the affected countries should be permitted to board flights. For individuals whose visas were physically cancelled as a result of the order, CBP has confirmed that they will not need to reapply for a new visa and may request an I-193 waiver of the visa issue upon arrival to the United States.

Nationals of the affected countries and refugees currently inside the United States should exercise caution in international travel while this order is being appealed. If the Ninth Circuit overturns the injunction on appeal, these individuals may find themselves outside the United States and unable to return.

The Trump Administration vowed to file an emergency stay of the order in response at the earliest opportunity. At issue will be whether implementation of these programs will be allowed to proceed while the parties litigate the ultimate legality of the President’s executive actions under the U.S. Constitution, the First Amendment, and the INA.

Foster will provide additional information in future Immigration Updates© and via our firm’s website at www.fosterglobal.com.