The U.S. Court of Appeals for the 9th Circuit ruled Monday to uphold a lower court’s ruling halting the implementation of President Donald Trump’s revised Executive Order to ban nationals of six Muslim-majority countries from entering the U.S. The ruling does little to change the current status of the Executive Order or to impact the final legal resolution. The 4th Circuit reached the same conclusion, albeit by different legal reasoning, in a May 25 ruling, and the administration appealed that decision to the Supreme Court on June 2.
The 9th Circuit decision nonetheless represents another setback for the Trump administration, which has issued two Executive Orders on travel that have repeatedly been blocked in court. While the 4th Circuit focused largely on the constitutional question of whether the order discriminates against Muslims, the Ninth Circuit’s decision focused largely on statutory law.
“The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public,” the court said. “But immigration, even for the President, is not a one-person show.” The court added that the government failed to present sufficient evidence that continuing to allow entry to nationals of the countries listed in the Executive Order would be “detrimental to the interests of the United States” and that the order runs afoul of a provision of the INA that prohibits nationality-based discrimination.
The March 6 Order would have prevented nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen from traveling to the U.S. for a 90-day period except in cases where an exemption or waiver applied. It was signed after a broader Executive Order, issued in late January, also stalled in federal court. The revised version included exemptions for green card holders, visa holders and dual nationals. It also did not cover Iraqi nationals, who were included in the initial Executive Order.
BAL Analysis: Foreign nationals who would have been affected by the Executive Order may continue traveling to and from the U.S. as they could before the order was signed. The Supreme Court has been asked to review the 4th Circuit’s ruling, however, and could reinstate the order if it takes the case. Employers with personnel who would be subject to travel restrictions should continue to advise their employees to exercise caution when planning travel because the litigation is ongoing. BAL is carefully monitoring the situation and will continue to provide updates on important developments.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
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