Wolfsdorf Rosenthal LLP

President Trump Signs Revised ‘Travel Ban’ Executive Order; Federal District Court Blocks Ban Temporarily


President Donald Trump signed a new “travel ban” executive order on March 6, 2017, effective March 16. The new order, which has been temporarily blocked, revokes a previous executive order signed on January 27, 2017, and reduces to six, from the previous seven, countries whose nationals are suspended from entry under a “temporary pause.” The order exempts permanent residents and valid visa holders as of certain dates and times, and provides for case-by-case discretionary waivers. The order also suspends refugee travel to the United States for 120 days for those not previously admitted, subject to waivers in certain circumstances. The new order includes explanations of President Trump’s rationale for the order’s provisions.

In late-breaking news, on March 15, a federal district court in Hawaii blocked the new executive order, granting a motion for a temporary restraining order. The court’s injunction applies nationwide. The government is expected to appeal, but in the meantime the executive order cannot take effect as planned. The federal court held that the plaintiffs had a strong case that the President’s March 6 executive order, like his earlier order, violated the Constitution’s First

Amendment freedom of religion clause by disfavoring Muslims. In reaching that conclusion, the court looked beyond the text of the executive order to statements made by President Trump and his advisors in favor of a Muslim immigration ban.

Several other states also filed or joined legal challenges against the new travel ban order, including Washington, Wisconsin, Virginia, California, New York, Oregon, and Massachusetts. Also, several refugee rights groups along with the American Civil Liberties Union and the National Immigration Law Center filed challenges in Maryland. Decisions on those filings were pending as of press time.

The states challenging the ban did so for a variety of reasons. Bob Ferguson, attorney general for the state of Washington, said, “We’re asserting that the president cannot unilaterally declare himself free of the court’s restraining order and injunction.” He noted, “After spending more than a month to fix a broken order that he rushed out the door, the President’s new order reinstates several of the same provisions [as the earlier order issued in late January] and has the same illegal motivations as the original. Consequently, we are asking [U.S. District Court] Judge [James] Robart to confirm that the injunction he issued remains in full force and effect as to the reinstated provisions.” Washington’s ongoing lawsuit asserts that President Trump’s travel ban unconstitutionally violates the First Amendment’s Establishment Clause and the Equal Protection Clause, by disfavoring Islam. Mr. Ferguson noted that “Washington need not demonstrate that the ban impacts all Muslims, that it covers only Muslims or that it was motivated solely by anti-Islam animus. Rather, the state must establish that such animus was one motivating factor behind the Executive Order.” Washington’s lawsuit also argues that the President’s actions violate the Immigration and Nationality Act and the Administrative Procedures Act.

The new list of countries on a “temporary pause” for entry of their nationals to the United States under the executive order included Iran, Libya, Somalia, Sudan, Syria, and Yemen, but did not include Iraq, which the new order says “presents a special case.” The order noted that “[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.” The new list of countries is “subject to categorical exceptions and case-by-case waivers,” the order stated. The new order made an exception for nationals of the countries on the banned list who had a valid visa at certain specified times and dates; are permanent residents; have other valid travel documents; are dual nationals who are traveling on a passport issued by a non-designated country; are traveling on a diplomatic visa; have been granted asylum; are in refugee status and have already been admitted to the United States; or have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The order also listed examples of possible discretionary waiver cases, such as returning students in an ongoing program of study, and called for a review of all nonimmigrant visa reciprocity agreements and arrangements, among other things.

President Trump’s previous “travel ban” executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” was signed on January 27, 2017. Among the most controversial aspects of the order were a ban on entry to the United States for a period of 90 days for people from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; suspension of the U.S. Refugee Admissions Program for 120 days (with indefinite suspension for refugees from Syria); and prioritizing refugee claims based on religion. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on February 9, 2017, issued a temporary restraining order against key provisions of the travel ban. Among other things, the panel rejected the government’s argument that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable.

See also:

  1. The new order 
  2. The Hawaii decision 
  3. Statement from Washington state’s attorney general’s office
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