On February 5, 2017, President Trump’s controversial “travel ban” was unanimously rejected by the United States Courts of Appeals for the Ninth Circuit, located in San Francisco, California. This controversial “travel ban” stems from President Trump’s January 27, 2017 Executive Order “Protecting the Nation From Foreign Terrorist Entry Into the United States,” that banned citizens of Iran, Iraq, Libya, Sudan, Somalia, Syria and Yemen from entering the United States for the next 90 days, and suspended the admission of all refugees for 120 days.
The Executive Order ignited protests in many airports around the country as US Customs and Border Protection officials struggled to interpret the new rules, and citizens of the banned countries were prevented from entering the United States. Just three days later, the plaintiff, the State of Washington (“Plaintiff”) filed suit in the Seattle District Court, to stop the enforcement of the ban.
Summary of the Case
The Plaintiff alleged that the ban was unconstitutional and “illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities.” Citing Trump’s campaign promise to stop Muslims from entering the U.S., the Plaintiff also argued that the ban unconstitutionally blocked entry to people based on religion.
The Plaintiff asked the District Court to declare that the challenged sections of the Executive Order are illegal and unconstitutional, and to enjoin their enforcement nationwide. On the same day, it filed an emergency motion for a Temporary Restraining Order (TRO). Two days later, Washington’s Complaint was amended to add the State of Minnesota as a plaintiff, and to add an additional claim under the Tenth Amendment.
The Federal District Court initially ruled in the States’ favor, by entering a written order granting the TRO. Because the ban was put on hold, the Trump Administration took the case to the Ninth Circuit Court of Appeals, and filed a notice of appeal the next day. It sought an emergency “stay” in that court to keep the Executive Order in place.
In State of Washington v. Trump, three Ninth Circuit judges heard oral arguments to determine the immediate fate of the nationwide TRO against Trump’s travel ban.
The Court faced several legal hurdles before it was able to address the substantive matters of the case. First, TROs are generally not appealable because they are only granted in emergency situations when the injured party must show that it will “‘irreparable harm” if the TRO is not granted. Second, States generally usually lack “standing” to sue, because they do not have a direct connection to the injury. However, the Court concluded that because of “extraordinary circumstances,” the Order possessed the qualities of an appealable preliminary injunction, and that the States had made a sufficient showing to support standing on behalf of their constituents, at least at this preliminary stage of the proceedings.
During oral arguments, the judges stated that “the Government had not pointed to any evidence connecting the countries to terrorism,” yet they were not convinced by the States’ argument that the ban targeted Muslims because the vast majority of Muslims would not be affected. The judges noted that the States had raised serious allegations about religious discrimination.
The Trump administration argued that the President has “unreviewable authority to suspend the admission of any class of aliens,” stating that he has the constitutional power to restrict entry to the United States. Furthermore, he argued that when motivated by national security concerns, this power is unreviewable by the federal courts, even if those actions potentially contravene constitutional rights and protections.
The court dismissed the argument by stating that there was “no precedent to support this claimed ‘unreviewability’”, and that it was contrary to the fundamental structure of our constitutional democracy.”
The Ninth Circuit ruled the the Trump Administration did not meet its burden of showing likelihood of success on appeal, or that it had not shown that a stay was necessary to avoid irreparable injury. For those reasons, the court stated that the emergency motion for a stay was denied. The Court refused to reinstate President Donald Trump’s ban on travelers from the seven predominantly Muslim nations.
After the ruling was published, the State Department announced that people from the seven countries holding valid visas could travel to the United States.
In response to the ruling, President Trump tweeted, “See you in court, the security of our nation is at stake.” President Trump’s Department of Justice may utilize its several options to challenge this ruling, such as taking the case to the United States Supreme Court, or drafting and issuing a new executive order.
At this point in time, citizens of Iran, Iraq, Libya, Sudan, Somalia, Syria and Yemen who are traveling with valid visas may continue to enter the United States. However, as immigration law may continue to be subject to changes, it is important to check with the Department of Homeland Security, the United States Citizenship and Immigration Service (USCIS), and a qualified immigration attorney before making travel plans.
About The Grady Firm
The Grady Firm, P.C. attorneys help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas, as well and Green Cards and citizenship based on family relationships, investment, or employment. In addition, The Grady Firm attorneys help foreign entrepreneurs establish a U.S. presence, form a corporate entity, and obtain the appropriate visas for their owners and employees.
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*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.