In another setback to the current administration’s goal of more tightly regulating visa issuance and the entry of nationals of specific countries to the United States, a federal district court in Hawaii issued a nationwide Temporary Restraining Order (TRO) just hours before a revised set of travel restrictions were scheduled to become effective. In a subsequent development involving a separate lawsuit against the same executive order, a federal district court in Maryland separately blocked a core provision of the order that restricted the ability of certain nationals of six countries (Iran, Syria, Sudan, Libya, Yemen, and Somalia) to enter the United States.

In both cases, the court found that the executive order violated the First Amendment’s Establishment Clause, which prohibits the government from establishing a religion. In finding that the executive order was based upon an impermissible intent, both courts relied heavily on past statements by then Candidate Trump and his surrogates which suggested that these executive orders were simply attempts to implement a “Muslim ban.” Additionally, both courts cast doubt on the stated national security rationale for these restrictions that the federal government’s lawyers presented.

Both President Trump and the Department of Justice reacted swiftly and indicated that the federal government would appeal these rulings.

Client Insights:

1) The entry of these TROs by two separate federal district courts preserves the status quo. Nationals of all countries with valid entry documents remain eligible for admission to the United States so long as they are not otherwise inadmissible under any provision of U.S. immigration law.

2) In previous alerts, we have pointed out the increased screening and vetting procedures that CBP officers are reportedly employing. We continue to emphasize caution in international travel and anticipate that travelers who have visited any of the six countries on the revised executive order in the recent past should prepare for the possibility of heightened, secondary screening procedures.

3) The ongoing litigation over this manner indicates that this situation could continue to evolve through additional court rulings or additional, revised versions of this restriction from the federal government.