Travel Ban 2.0: Current Status

By Tejas Shah, Patrick DePoy, and Daniel Kim* of Franczek Radelet P.C.

June 16, 2017

This client alert summarizes the most recent developments in the litigation over President Trump’s so-called “Travel Ban” issued by Executive Order on March 10, 2017.

Current Status

On June 12, 2017, the Ninth Circuit Court of Appeals upheld a district court in Hawaii’s decision to implement a nationwide injunction against President Trump’s revised travel ban. Dubbed “Travel Ban 2.0,” the revised travel ban was implemented on March 10, 2017 to overcome earlier legal challenges to the original travel ban implemented by President Trump through executive order on January 27, 2017. The new ruling by the Ninth Circuit follows an earlier ruling this year by the Fourth Circuit that upheld the issuing of a nationwide injunction of Travel Ban 2.0 by a district court in Maryland.

Fourth Circuit Challenge

On May 25, 2017, the Fourth Circuit Court of Appeals upheld a Maryland district court’s decision to issue a nationwide injunction against Travel Ban 2.0 because it was unconstitutional. Relying on remarks that President Trump made leading up to the November 2016 election, the Fourth Circuit concluded that Travel Ban 2.0 was implemented largely to discriminate against people from the six Muslim-majority countries that were the focus of the revised travel ban.  While the Fourth Circuit acknowledged the plenary power that the Executive Branch has in making immigration decisions, it articulated that power’s limits, particularly when the government has not acted in good faith. Based on President Trump’s campaign rhetoric, the Fourth Circuit held that the travel ban was a pretext for discriminating against Muslims, violating the First Amendment’s establishment clause.

Ninth Circuit Challenge

The recent decision by the Ninth Circuit affirmed the injunction against Travel Ban 2.0 on statutory grounds, rather than the constitutional grounds the Fourth Circuit used. Concluding that the Trump Administration lacked statutory authorization for this restriction under the Immigration and Nationality Act of 1965, the Ninth Circuit held that the government failed to show how Travel Ban 2.0’s restrictions on individuals from the six listed countries would be vital to national security. However, the Ninth Circuit’s decision did narrow the scope of the Hawaii court’s injunction by eliminating the portion of the decision that blocked the federal government from conducting an internal review to assess vetting procedures for the issuance of visas.

The Administration Seeks Supreme Court Review

The administration is seeking Supreme Court review and, specifically, has sought a stay of the injunctions issued by the Fourth and Ninth Circuit Courts of Appeal. If granted, a stay would allow for the immediate reinstatement of these travel restrictions. The administration asked the Supreme Court to act quickly, as the travel restrictions were, on their face, supposed to last for 90 days with regard to admissions from six Muslim-majority countries and 120 days with regard to the U.S. refugee program. In an effort to avoid rendering the entire issue moot, President Trump issued a Presidential Memorandum on June 14, 2017 clarifying that the travel restrictions would begin once the injunctions are lifted.

Finally, recent comments by the President on Twitter have complicated the government’s rationale for defending this executive order. He has repeatedly referred to the Order as a “Travel Ban”, contrary to the Department of Justice’s efforts to characterize this as a “temporary pause” that would simply allow the government to thoroughly evaluate its vetting process.

Implications for Affected Clients

Regardless of whether the Supreme Court decides to hear the government’s appeals to the decisions by the Fourth and Ninth Circuits, it has become apparent that the number of visas issued by the State Department to foreign nationals of the banned countries has fallen by nearly 50 percent. Citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen received about 3,200 non-immigrant visas in March 2017 compared to an average of 5,700 per month in 2016 and more than 6,000 per month in 2015 and 2014. This reduction could be a combination of fewer visa applications and fewer approvals.

The Executive branch has plenary power in the conduct of the nation’s foreign affairs, and the Department of State has the unreviewable discretion in determining whom to issue visas to. Individuals who are citizens of the six impacted countries and other individuals who have traveled to those countries in the recent past are encouraged to seek legal counsel prior to seeking admission to the United States. The U.S. Customs and Border Patrol has broad discretion in both questioning and searching an individual traveler’s personal possessions when he/she seeks admission to the United States, and does not need probable cause to conduct such a search under the “border search” exception.

*Daniel Kim will be a second-year law student at Notre Dame Law School this fall and is a Franczek Radelet LEADS Fellow.