Third Time's The Charm for Trump Travel Ban

On December 4 the U.S. Supreme Court cleared the way for the third version of President Trump’s travel ban to take effect, staying injunctions handed down by two U.S. District Courts in October. The Administration’s latest travel ban indefinitely suspends travel to the U.S. by nationals of Somalia, Syria, Libya, Iran, Yemen, North Korea, and Chad and certain officials of the Venezuelan government. Justices Ginsberg and Sotomayor dissented from the Court’s decision.

In two separate orders, the Court stayed injunctions granted by the Courts in Hawaii and Maryland. On October 17 the Maryland District Court issued a nationwide injunction blocking implementation of the ban, finding a likelihood of success on claims that the ban exceeds the President’s authority under the Immigration and Nationality Act (INA) and violates the Establishment Clause. The injunction protected only individuals with a bona fide relationship with a person or entity physically located in the U.S., such as immediate family members, and did not block the restrictions on U.S. entry by North Koreans and Venezuelans.

Three days later, the District Court in Hawaii issued a nationwide temporary restraining order finding a likelihood that the Plaintiffs would prevail on their claims under the INA. While the Court completely enjoined implementation of the ban with respect to persons traveling from the six Muslim majority countries, in November the Ninth Circuit pared the TRO back to protect only those with a bona fide relationship with a person or entity in the U.S. This includes “close familial relationships” which, according to the Ninth Circuit, include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.

In the latest development, the Trump administration argued to the Supreme Court that the third version of the ban is the result of an extensive review process designed to ensure that foreign national travelers do not pose a risk to national security. The Administration contends that anything but a complete stay of the lower court orders would undermine national security since “most immigrant-visa holders have a bona fide relationship with a person or entity in the United States.”

The Supreme Court apparently agreed, reconsidered its analysis of the prior version of the travel ban, and allowed the ban to take full effect while its legality is reviewed by the lower courts. Oral arguments are scheduled before the 9^th Circuit Court of Appeals on December 6. The Maryland case will be argued before the 4^th Circuit on December 8. At this time, there is no appeal pending before the Supreme Court relating to any version of the travel ban, but eventual Supreme Court review of travel ban 3.0 is likely.

If you would like to discuss the implications of the travel ban and the various court decisions affecting the ban for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.