The Ninth Circuit Court of Appeals in San Francisco has denied the government’s request for an emergency “pause” of Judge James Robart’s TRO prohibiting implementation of the EO barring individuals from seven countries to enter the United States. The Court ordered briefs to be submitted on an expedited basis with the final brief due by 3:00 pm PST on February 6. After receiving the briefs, the Court may schedule a hearing or rule without a hearing on the case soon thereafter.

Individuals from the seven affected countries may enter the U.S. while we await a ruling from the Court. At least during this interim period, individuals with valid visas will be able to board airlines and enter the United States. Those 60,000 visas that were “provisionally revoked” have been restored. It has been reported that individuals who tried to enter the country in the period after the January 27 EO and had their visas physically marked as “cancelled” as a result of the EO will not need to reapply for new visas. They will be able to file an Application for Waiver of Passport and/or Visa, Form I-193, upon arrival, absent any other admissibility issues. Airlines will receive CBP permission for such individuals to board. The I-193 filing fee is $585. It is unclear whether that fee will be waived.

The government’s basic argument to the Ninth Circuit is that the TRO “contravenes the Constitutional separation of powers,” “harms the public,” and “second-guesses the President’s national security judgment.”

Since the EO was signed, the Administration has itself revised the EO, explaining:

  • Green Card holders are not covered by the EO
  • Dual Citizens with a passport from a non-affected country will be treated as from the non-affected country
  • Iraqis with Special Immigrant Visas are no longer covered by the EO

The Ninth Circuit’s denial of the government’s emergency request was issued by Judge William C. Canby, a Carter appointee, and Judge Michelle T. Friedland, an Obama appointee. A third member of the Court, Judge Richard R. Clifton, a Bush appointee, will join the panel to review the government’s request. Judge Robart of the District of Washington also was a Bush appointee.

We will continue to follow the court action and provide updates.