United States: President's Immigration Ban Remains Blocked

Last Updated: February 22 2017
Article by Richard R. Meneghello and Kim Kiel Thompson

After hearing an emergency oral argument late Tuesday, the 9th Circuit Court of Appeals agreed with a lower federal court judge and late today upheld the nationwide temporary restraining order that blocks the president's controversial immigration executive order. The executive order, which had prevented refugees from seven predominantly Muslim nations from entering the country, in addition to some green card and visa holders from those countries, continues to be temporarily enjoined from being enforced by border officials. Visas that had been revoked by the order have been reinstated, visa processing at U.S. consulates around the world continues to be administered as normal, and travelers from these nations, as well as vetted refugees from all nations, will continue to be permitted to enter the U.S.

It is all but assured, however, that the Trump administration will now turn to the Supreme Court to resolve the dispute once and for all. This situation continues to remain highly fluid with near-daily developments, so employers will want to remain up to speed with the case as its outcome could impact your workforce and require adjustments to your business practices.

Background On Executive Order And Lower Court Ruling

By now, most are familiar with President Trump's January 27 executive order that created an immediate freeze on all entry for individuals from Syria, Iran, Libya, Somalia, Yemen, Iraq, and Sudan, placed a 120-day ban on the U.S. refugee program, and indefinitely suspended Syrian refugee admissions. 

Last week, a federal court judge in Seattle issued a temporary restraining order that prohibited the federal government from enforcing several key portions of the executive order on a nationwide basis. Judge James Robart found that the states of Washington and Minnesota, which challenged the ban, met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the executive order, and that they were likely to prevail on their claim that the president's order was unconstitutional. The federal government immediately appealed the ruling, and the appeals court arranged for an accelerated briefing schedule and a Tuesday oral argument.

9th Circuit: Block Of Order Was Proper

The three-judge panel of the 9th Circuit Court of Appeals agreed with Judge Robart and upheld the temporary restraining order in a unanimous opinion. They first ruled that the states of Washington and Minnesota were proper parties to challenge the immigration ban and had "standing" at the court. The court found that the teaching and research missions of state universities were harmed by the travel ban, as students and faculty were unable to travel for research, academic collaboration, or personal reasons. Although the states cited additional justifications to prove proper standing, the court did not feel the need to address further arguments given their initial conclusion.

The court also agreed that the states proved they faced immediate and irreparable injury because of the executive order. The court noted that, during the weeklong period when the immigration ban was in effect, families were separated, state university students and faculty were stranded outside of the country, and travel was barred.

Although the Department of Justice argued that the president has broad discretionary authority to suspend the entry of immigrants under both Article II of the Constitution and the Immigration and Nationality Act, the court was not convinced that this power should go unchecked. While acknowledging that courts should generally defer to the president on matters of national security, it ruled that "the government's authority and expertise in such matters do not automatically trump the court's own obligation to secure the protection that the Constitution grants to individuals." It said there was no precedent to support the Justice Department's position that the president's decisions in such areas were unreviewable, concluding that such a position would run "contrary to the fundamental structure of our constitutional democracy."

Turning to the merits, the 9th Circuit ruled that the states were very likely to succeed in their constitutional challenges to the president's executive order. It concluded that the executive order likely violated the Fifth Amendment's Due Process clause, because it ostensibly denies entry to the U.S. of all persons from the seven named countries regardless of whether they have lived legally in the country for years. Moreover, the court noted that all persons within the U.S. have constitutional rights, including aliens, "regardless of whether their presence here is lawful, unlawful, temporary, or permanent." Therefore, the court confirmed that lawful permanent residents, aliens attempting to reenter the country after traveling abroad, refugees, and visa applicants were all entitled to due process under the Constitution, and the president's executive order likely infringed upon these rights.

Although the administration subsequently clarified through White House counsel that the executive order was not intended to and should not impact green card holders and other lawful permanent residents, the court agreed with the states that this argument should fail. As the court noted, the text of the executive order remains unchanged despite the clarification, and the White House counsel had no authority to alter an executive order to begin with. Further, the court noted that it could not be sure whether the White House would change the current interpretation at any time. 

The 9th Circuit next addressed whether the executive order violates the First Amendment's Establishment Clause. It noted that the states argued that the purpose and effect of the executive order appear to favor one religion over another, disproportionately preventing Muslims from entering the United States. The Department of Justice had attempted to justify the selection of the seven predominately Muslim countries by claiming the countries were selected for national security interests and without regard to religion. The 9th Circuit judges ducked the question for now, explaining that the states' claims "raise serious allegations" that would be better determined after the legal proceeding had been fully briefed.

Result Of Court Ruling

As a result of this decision, all U.S. land and air ports of entry continue to be prohibited from enforcing the controversial travel ban portions of the executive order. All Customs and Border Protection (CBP) field offices will continue to inspect travelers under their standard policies and procedures. All airlines and terminal operators should continue to permit boarding of all passengers without regard to their nationality.

The Department of Homeland Security has also resumed its standard inspections of travelers as normal. This includes the inspection and admission of people from the seven listed countries and those in the U.S. refugee program. Similarly, the State Department has also reinstated any visas that had been provisionally revoked upon the issuance of the executive order, and, assuming no other issues exist, they are currently valid for travel.  

What's Next?

This ruling is by no means the final word on this matter. For one thing, the decision simply upholds the temporary restraining order issued by the federal court judge. The parties will still litigate the matter at the U.S. District Court in Seattle to determine whether that restraining order should be transformed into a permanent injunction, adjusted in some manner, or scrapped altogether, and a return trip to the 9th Circuit seems possible as well.

But more importantly, it seems likely that the Trump administration will seek a final review of this issue before the U.S. Supreme Court. The Court has demonstrated its ability to move rapidly when necessary – recall the accelerated briefing, oral argument, and decision from the Bush v. Gore election case in 2000 – and this could be another situation where we see a quick determination from the SCOTUS.

Where Do Employers And Their Affected Employees Stand At Present?

The situation is very fluid and changing on a near-daily basis. Therefore, it is very important that your organization confers with legal counsel to ensure the current status and application of immigration laws and policies to your workforce.

Because normal travel has resumed, we recommend that employers with affected employees outside the U.S. have such employees return to the U.S. as quickly as possible. The legal status of the court order could change at any time, however, so immediate action is essential.

If you employ workers from any of the seven listed countries who are currently in the U.S., you should postpone international work-related travel and encourage them to refrain from personal travel outside the country, if at all possible. While their free travel might be permitted at present, their status could change without prior warning.

If you have affected employees with visas still in their passports, their travel should not be impaired. Their visas should have been electronically reinstated. For those employees with visas that were physically revoked, we recommend working with legal counsel to determine whether these employees should apply for a new visa or return to the country and apply for an I-193 (Application for Waiver of Passport and/or Visa) visa waiver for prompt admission to the U.S. Absent any other admissibility issues, these individuals should receive an I-193 waiver upon arrival to the U.S. For those traveling by air, airlines have been instructed to contact CBP to receive authorization to permit boarding.


We will continue to monitor the status of all immigration-related executive order activity, including ongoing and future litigation, and publish updates as additional actions are taken, or information is provided, by the White House or the judicial system.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Richard R. Meneghello
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions