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Travel Ban Temporarily Enjoined

By Michael H. Neifach and Amy L. Peck
  • February 4, 2017

On Friday, February 3, and effective immediately, the travel restrictions for individuals from seven identified countries was halted by Judge James Robart of the Western District of Washington. In State of Washington, et al. v. Donald J. Trump, et al. Judge Robart granted a nationwide Temporary Restraining Order (TRO) prohibiting the Administration from implementing the Executive Order (E.O.) stating that “the circumstances brought before it today are such that it must intervene to fulfill its constitutional role” of “ensuring that the actions taken by the other two branches [of government] comport with our country’s law, and more importantly, our Constitution.” 

To comply with the Order, the Department of Homeland Security is suspending enforcement of the E.O. The Department of State is reinstating the approximately 60,000 visas that were provisionally revoked, and airlines have been told to start boarding individuals from the 7 affected countries. Procedures for issuance of visas at embassies and consulates abroad and processing of applications for admissions at the ports of entry will return to those in place prior to issuance of the E.O. on January 27, 2017 for the duration of the TRO.  

The Department of Justice is expected to file for a stay of Judge Robart’s order as soon as possible. Nonetheless, the Administration has indicated that while the TRO is in effect, individuals from the affected countries will be allowed to travel to the United States.

Certain details surrounding how the government intends to comply with the Court’s decision are not yet clear. For example, the government has not indicated whether individuals who had their visa stamps physically marked as “cancelled” as a consequence of the EO will be able to board aircraft for the U.S. immediately, or whether they will be required to reapply for a visa at the consulate. It is also not clear whether individuals whose Global Entry memberships were cancelled in response to the EO will have their memberships reinstated.

Because the government is expected to seek a stay of the TRO, the window of opportunity to return to the United States may be limited. Once the Ninth Circuit rules on Judge Robart’s TRO, it could then be appealed on an emergency basis to Associate Justice Anthony Kennedy of the U.S. Supreme Court. 

Below is a notice just issued by DHS:

In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States."

This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order.

DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.

At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President's Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.

As the situation is in flux and subject to further changes, Jackson Lewis attorneys will continue to provide updates. Please contact your Jackson Lewis attorney with any questions.

©2017 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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