Authors: Geetha Nadiminti Adinata, Loren C. Locke (Ford Harrison)

President Trump recently issued an Executive Order entitled: “Protecting the Nation from Foreign Terrorist Entry into the United States”, which was promptly appealed to the district court. The court decided to temporarily stop the federal government from enforcing key portions of the Executive Order and this position has since been affirmed by the appeal court (the ‘Ninth Circuit’).

The Ninth Circuit’s decision means that, for the time being, key provisions of the Executive Order will not be enforced, and the US will continue to admit approved refugees, as well as travellers with valid US visas from the seven impacted nations - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

The Ninth Circuit held that, at this preliminary stage, the federal government has not demonstrated it is likely to win its appeal or that if the district court’s injunction was not lifted, this would cause irreparable harm. The court found that the two states that had brought the action - Washington and Minnesota – had “offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the states and ‘multiple other parties interested in the proceeding.’”

The Ninth Circuit made clear that “although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

The Executive Order

The Executive Order imposes a 90-day entry ban for nationals of Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen, targeting “nationals of countries of particular concern” for suspension of visa and other immigration benefits. The Executive Order also announces that the government will devise and implement new “Uniform Screening Standards” on all immigration programmes, suspend the US refugee programme for 120 days, and permanently bans refugees from Syria.

Impact of the Ninth Circuit’s Decision

The Ninth Circuit’s decision upholds the lower court’s preliminary injunction halting enforcement of key portions of the Executive Order. It is open to the federal government to ask the full Ninth Circuit for an emergency order ending the injunction, or it could seek Supreme Court intervention. President Trump is saying he will issue a new Executive Order instead.

In any event, the substantive challenges to the Executive Order are still pending in the district court that issued the injunction. If the district court ultimately rejects these challenges, the Executive Order likely will be reinstated. Thus, even though the ban is currently suspended, any international travel could still be risky for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen who are neither US lawful permanent residents nor dual citizens holding a passport from a non-banned country.

Prior to the suspension of the ban, the Administration clarified a few aspects of the scope of the ban:

  • The ban does not apply to US citizens.
  • The ban does not apply to US lawful permanent residents regardless of national origin or citizenship.
  • The ban should not apply to dual citizens of a banned country and a non-banned country, provided that the individual presents a passport from a non-banned country with a valid US visa when seeking admission to the US.

The Department of Homeland Security is currently following standard policies and procedures as they existed prior to the President signing the Executive Order on 27 January 2017, but there are ongoing reports of confusion at foreign airports regarding who may or may not board flights to the US.