Legal challenges to President Trump’s Executive Order (EO) have resulted in a temporary restraining order (TRO) halting the 90-day travel prohibition against citizens and nationals of seven designated countries. The TRO, issued on February 3, 2017, has survived an initial, emergency challenge filed by the US Department of Justice (DOJ); however, the challenges to both the EO and the TRO are ongoing. The developments are fast-moving in the case now pending with the United States Court of Appeals for the Ninth Circuit.
Challenges Result in Temporary Reprieve from Executive Order
The purpose of the TRO is to stop the enforcement of the EO temporarily, while the court challenge to the EO’s legality is fully considered and a ruling is issued by the US Court of Appeals for the Ninth Circuit. The terms of the TRO prevent the US government from enforcing the 90-day travel ban on citizens and nationals of Iran, Iraq, Somalia, Sudan, Syria, Libya, and Yemen. The TRO applies throughout the US to both immigrant (permanent) and nonimmigrant (temporary) immigration categories. The TRO also applies to the EO’s US refugee program suspension provisions. However, the TRO is being challenged, as explained below.
Travel Permitted Following TRO
Under the terms of the TRO, the EO travel prohibitions cannot be enforced at any US Port of Entry (POE). This includes both land borders and air ports.
US Customs and Border Protection (CBP) has confirmed that it will comply with the TRO. CBP has issued an internal directive to all its field offices with instructions to immediately resume the inspection process at the POEs under the standard policies and procedures which were in effect prior to the EO.
All airlines and terminal operators have received official notification with instructions to permit boarding of passengers of all nationalities, provided they possess valid travel documents. Thus, passengers from the listed countries should be allowed to travel to a US POE, if all their immigration paperwork is in order.
Visa Validity Restored for Many
As part of the EO, the visa “stamps” issued by the US Department of State (DOS) to individuals from the listed countries were provisionally revoked en mass. Following the issuance of the TRO, the DOS reversed the provisional visa revocations. Thus, these visas are once again valid for travel without the need for a renewed application.
Individuals who were turned away at US POEs as a result of the ban will not need to apply for new visa “stamps,” but must follow a different procedure to be permitted re-entry. The visas of these individuals were physically cancelled and as such, DOS cannot reinstate the visa validity. Arrangements have been put in place to accommodate this situation and avoid the need to apply for a new visa. The airlines will need to contact CBP in advance of boarding such individuals to obtain permission to allow boarding. At the POE, the individual is to be granted a waiver of documents to permit entry to the US. Delays are expected for travelers who fall within this category.
How Long Will the Ability to Travel Free of EO Restrictions Last?
The duration of the return to pre-EO procedures is expected to become clearer in the very near future. The DOJ, representing the Trump Administration, has challenged the TRO. The DOJ was unsuccessful in their efforts to block the TRO on an emergency basis. However, their challenge to the TRO is under review on a non-emergency basis by the same panel of judges who declined to lift the TRO. The Court set a very short deadline of Monday, February 6 for the final brief in the TRO challenge. A decision on whether or not the EO will remain on hold can be issued at any time thereafter.
The challenge to the EO itself is likely to be quite protracted. Thus, if the EO is put on hold for the duration of that challenge, travel to the US by those who are the subject of the ban will become more reliable than at the present time.