United States: Federal Appeals Court Denies Government's Request To Reinstate Travel Ban

The Ninth Circuit Court of Appeals denied the federal government's emergency request to lift the temporary restraining order (TRO) halting the implementation of President's Trump's travel ban. The ruling allows immigrants and refugees covered by the ban to continue to enter the United States at this time. The states of Washington and Minnesota claimed that the travel and refugee bans contained in the president's January 27 Executive Order, "Protecting the Nation From Foreign Terrorist Entry Into the United States," violated the Constitution and the laws of the United States. The government's claim was based on national security, but when asked for supporting facts, the government could not point to any evidence of a specific terrorist attack perpetrated by a national from one of the seven named countries.

The key findings in the Ninth Circuit's decision in Washington v. Trump are:

The President's Executive Orders Are Reviewable by the Courts

The court rejected the federal government's claim that the president's immigration policies—even those involving national security concerns—are unreviewable by the courts. The court explained: "[t][here is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy."

The States Have "Standing" to Challenge the Executive Order

In order to bring a lawsuit, a plaintiff must have "standing," which is a legal stake in the outcome of the case. The Court found that Washington and Minnesota have an adequate stake because the states' universities will suffer harm from the Executive Order. Specifically, the Executive Order prevents students and faculty from the banned countries from travelling for academic or personal reasons. It affects the universities' ability to attract students and faculty from these seven affected countries. And, some of their students and faculty will be stranded outside the United States.

The Federal Government Is Unlikely to Win Its Appeal Because the States Have Alleged a Due Process Violation

The court declined to lift the TRO because it concluded that the federal government was not likely to win on the appeal of the TRO. The court stated that the federal government has not shown that "the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual's ability to travel."

The Federal Government Did Not Establish Harm Resulting from the TRO

The Court found that the federal government failed to allege any harm that would justify a stay of the TRO. It pointed out that the government did not allege that any noncitizens from the seven countries perpetrated terrorist attacks against the United States. By contrast, the states did show harm to their public universities if the Executive Order was reinstated.

There Is a Strong Public Interest in Both Security AND the Free Flow of Travel, Family Relationships and Non-Discrimination

The Court noted the competing public interests on both sides of this suit: "On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay."

What This Means for Those Affected

While the injunction is in place, those who have been affected by the ban should be able to travel. But, there are no guarantees. Customs and Border Protection still has the authority to stop and question people at entry. We have been receiving information about people being sent to secondary inspection for further screening and asked for their passwords for their phones, computers and social media accounts. Also, we have received information about visa interviews at the U.S. Embassy being delayed or in some instances visas cancelled. Before travel, those affected should contact their attorneys. They also may want to consider that their emails, phone and social media information may not remain private. If applying for a new visa at the U.S. Embassy, plan ahead and leave a longer than usual time frame to return, in the event the visa is delayed. In addition, the law requires that anyone who is NOT a U.S. citizen must carry with them at all times evidence of their lawful status (green card or evidence of visa status). Because of the unpredictability of the current situation, consider keeping a photocopy of these documents in a safe place, so that if necessary, someone will have access to them.

What This Means for Employers

We understand that there are additional proposals in the pipeline that will affect legal immigration and reduce legal immigration numbers. If you regularly employ legal immigrants who perform an essential role in your company, consider calling your elected officials and let them know how any bans would impact your company and your opinion on how foreign talent contributes to your company's competitiveness. Pending proposals include limiting H visas to those who have advanced degrees, priority to U.S. graduates, increase in H wages, intense H and L investigations, fees for labor certification and more. Since this is H-1B season, if you plan to hire new employees who will need H-1B visas, now is the time to start as applications must be received in the first five days of April 2017.

If you have any questions regarding this Alert, please contact any of the attorneys in the Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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