On Feb. 9, 2017, a unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals denied the federal government’s motion for a stay of an order enjoining implementation of the president’s Executive Order barring certain travel to the United States. The Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” directed the Departments of State and Homeland Security to suspend entry by people from seven majority-Muslim countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, Yemen) for 90 days. The order also suspended all refugee admissions for 120 days; indefinitely suspended the admission of Syrian refugees; announced a preference for refugees who fear persecution on account of belonging to a minority religion, and cut in half the number of refugees the United States planned to resettle in Fiscal Year 2017.
The immediate result of the order was chaos, and lawyers and protesters descended on international airports to support incoming travelers. Under public pressure, the secretary of Homeland Security announced that it is generally in the national interest to make an exception to the Executive Order for permanent residents. Dozens of federal lawsuits were filed, and a flurry of court orders were issued, requiring the government to admit certain visa holders and permit access to counsel. On Feb. 3, Judge James Robart of the U.S. District Court for the Western District of Washington, enjoined the travel ban portions of the order. The suspension of refugee admissions for 120 days also was blocked. The federal government appealed, requesting that the 9th Circuit permit the Executive Order to go back into effect while the appeal is pending. The Feb. 9 decision denied the federal government’s request to allow the Executive Order to go back into effect.
Why is the Executive Order unlawful?
According to the 9th Circuit, the plaintiffs in the case, the states of Washington and Minnesota, have established a strong likelihood that the Executive Order does not provide due process to affected people, as required by the 5th Amendment of the U.S. Constitution. The states argued that people with permanent resident status, nonimmigrant visa holders who already have some ties to the United States, and refugees are entitled to some notice and opportunity to be heard before having their visas cancelled. The federal government argued that too few of the people affected by the order had any rights under the Constitution to any process. The 9th Circuit agreed with the states, holding that “the government has not demonstrated that the states lack viable claims based on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.”
In addition to the states’ due process claims, they are suing the federal government under the Establishment Clause of the 1st Amendment because the Executive Order was intended to discriminate against Muslim migrants. The 9th Circuit found it unnecessary to fully address that claim in light of its due process decision, but noted that “[t]he states’ claims raise serious allegations and present significant constitutional questions.”
Finally, at least with respect to permanent residents, the states are pursuing a claim that the Executive Order violates INA § 202(a)(1)(A) because it discriminates against people in the issuance of an immigrant visa on the basis of nationality. The 9th Circuit did not need to address this claim either, in light of its decision on the constitutional claims.
What is going to happen next in the case?
The federal government is likely to simultaneously pursue two paths in its efforts to reinstate the Executive Order. First, it may pursue further appeals of its motion to stay the District Court’s order. This would be done by either petitioning the full 9th Circuit to grant the stay motion or by applying for a stay to the Supreme Court. It is difficult to predict how quickly either court would act on such an application, but as of this writing, the federal government has not submitted such a request.
At the same time, the case will proceed in the District Court in Seattle. The court has set a schedule for further briefing and requires the final briefs to be filed by Feb. 17, 2017. The court will then schedule a hearing shortly after briefing is completed.
It is also possible that President Trump may issue a new and more narrowly-focused Executive Order, in an effort to impose travel restrictions in a manner that may survive court scrutiny.
How does this affect my clients?
For the time being, any person with a valid visa to enter the United States may continue to do so as if the Executive Order was never issued. However, if the Supreme Court were to stay the 9th Circuit’s decision or if the District Court were to modify its injunction, entry may once again be suspended for nationals of affected countries, as well as for refugees. Nationals of affected countries who are outside of the United States and who hold a visa should be advised to attempt to enter the United States immediately.
Immigration processing for people who are already physically present in the United States, including naturalizations, adjustment of status, and applications for asylum, are unaffected by this Executive Order.
CLINIC is following these issues closely and will issue updates to keep you informed of new developments.