Last night, a three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled unanimously that the federal government may not enforce key sections of the “travel ban” Executive Order issued on January 27.

The Ninth Circuit decision leaves in place a restraining order issued by a federal district judge in Washington last Friday, halting enforcement of the most onerous parts of the order nationwide and at all U.S. ports of entry. Specifically, the federal government may not enforce the following sections:

1. Section 3(c) – Barring entry of nationals from Iraq, Libya, Somalia, Sudan, Syria, Yemen, and Iran for at least 90 days
2. Section 5(a) – Suspending all refugee admissions for at least 120 days
3. Section 5(b) – Prioritizing refugee admission for religious minorities upon the resumption of refugee admissions
4. Section 5(c) – Suspending indefinitely refugee admissions from Syria
5. Section 5(e) – Creating a process for “case-by-case” admission of refugees during the suspension periods, with preference given to religious minorities

​As a result of the injunction, travel to the United States for nationals of the seven affected countries has returned to the norm that existed before the order was issued. The U.S. State Department has rescinded the provisional revocation of any temporary and permanent visas issued to affected individuals, and those visas may now be used for travel to the U.S. U.S. consulates also will continue to schedule visa appointments for all applicants, and airlines will not be prevented form boarding travelers with valid immigration documents.

It is important to note that the restraining order prevents enforcement of only the section of the executive order listed above. Other sections remain in force, including the suspension of the Visa Interview Waiver Program, although there are reports of some consulates allowing interview waiver appointments.

It is not clear at this time whether the White House will appeal the Ninth Circuit decision to the U.S. Supreme Court or whether the Court would hear the case. The White House could decide to rescind the original order and issue a new order tailored to avoid the legal challenges that led to the restraining order.

If you have any questions about this, please contact us.

On January 27, the White House issued an Executive Order immediately halting visa issuance and forbidding entry into the U.S. of all nationals of seven predominantly Muslim countries: Iraq, Libya, Somalia, Sudan, Syria, Yemen, and Iran. The order also effectively ends the refugee admission program for Syrians and temporarily halts refugee admissions from other countries, while also reducing the number of refugee admissions to 50,000 in 2017.
 
Signed late Friday afternoon, the order has caused chaos at airports around the world as immigration inspectors have scrambled to implement the order while travelers with valid visas and green cards attempted to board flights or arrived in the U.S. Although the chaos of the first 72 hours is subsiding, many aspects of how the ban is being applied remain in flux.
 
Here is what we know about the travel ban and how it is being implemented:

• The order directs that nationals of the seven countries be banned from receiving visas or entering the U.S. for at least 90 days while the Secretary of Homeland Security reviews and reports on the security screening procedures for visa applicants from the affected countries. This ban affects travelers with both temporary and permanent visas, although DHS and the Department of State may grant waivers on a case-by-case basis.
• Initially, border officials applied the ban to Lawful Permanent Residents (green card holders) although they could be permitted to enter on a “case-by-case” basis. The Secretary of Homeland Security has since determined that Permanent Residents would be granted a blanket waiver “in the national interest,” but they will be subjected to increased scrutiny.
• Border inspectors initially were applying the ban to dual nationals (e.g., those born in Iran, but holding U.K. citizenship). DHS has stated that dual nationals will be treated according to the passport they present. In other words, an Iranian-born U.K. citizen presenting a U.K. passport should be processed as a U.K. citizen and the ban should not apply.
• U.S. citizens enrolled in the Global Entry express travel program who are also nationals of one of the seven affected countries will most likely have their Global Entry registration revoked automatically.
• The order also suspends “other immigration benefits” for people from the affected countries. USCIS has issued guidance to its offices that immigration benefits applications filed by nationals of the affected countries may be processed, but that no final decision may be made while the order is in effect. This means that no benefits applications by affected individuals will be adjudicated at least during the initial 90-day period. DHS has confirmed that N-400 applications for naturalization are not affected.

​Since Friday several Federal courts issued injunctions prohibiting CBP from detaining or deporting people who had been prevented from entering the U.S., and many additional lawsuits challenging the order are being prepared. However, there have been reports of CBP officials illegally ignoring the existing injunctions. Even in places where the injunction is being followed, this protection only applies to travelers who have made it to the U.S.

The order is being applied to prevent people with otherwise valid visas from boarding flights, and the Department of State has instructed consular posts worldwide not to schedule visa appointments for people from the affected countries. We also have heard numerous reports from colleagues around the country that some CBP offices and ports of entry are not following the official guidance, including detaining citizens of countries other than the named seven.
 
Our advice is that visa holders who were born in these countries who are currently in the U.S. should not leave the U.S. for any reason unless doing so would result in them overstaying their lawful period of admission. The frenzied process by which the White House seems to be implementing these policies makes it impossible to predict when or whether such visa holders will be permitted to return.
 
The order also suspends refugee admissions from Syria indefinitely and from all other countries for at least 120 days while the oft-discussed “extreme vetting” measures are developed and implemented.
 
Although the order states that the travel ban and refugee suspension is only temporary, it may be unlikely that the countries affected could or would ever comply with the conditions the order sets for having the ban lifted. It is likely that the legality of the order – and the fate of those affected – will ultimately be decided by the Supreme Court.

If you have any questions about this, please contact us.