This update concerns litigation relating to the March 6, 2017 Executive Order ("Order") titled Protecting the Nation From Foreign Terrorist Entry into the United States, which is summarized in prior Clark Hill Immigration Updates. Section 2 of the Order prohibits foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen (together, the "designated countries") from entering the United States for a period of at least 90 days. Section 6 suspends the U.S. Refugee Admissions Program for 120 days and reduces the number of refugees the U.S. will accept in 2017 from 110,000 to 50,000. The Order also mandates swift implementation of an entry-exit tracking system for foreign nationals travelling in and out of the U.S., and suspension of the Visa Interview Waiver Program, which permits certain foreign nationals to apply for a visa without an interview. The Order does not terminate the Visa Waiver program, the Electronic System for Travel Authorization ("ESTA").

Hawaii v. Trump

On March 15, 2017, the United States District Court for the District of Hawaii issued a nationwide temporary restraining order ("TRO") in Hawaii v. Trump ("Hawaii"), prohibiting the government from implementing Sections 2 and 6 of the Order, pending further litigation. A TRO is a quickly issued order by a judge designed to protect the person(s) facing immediate harm. The Hawaii TRO does not prohibit provisions in the Order other than Sections 2 and 6.

Update: On March 29, 2017, the court converted its temporary restraining order into a preliminary injunction, reaffirming its ruling that blocks implementation of Sections 2 and 6 of the Order. The preliminary injunction preserves what has been in effect so far while the lawsuit continues. The Department of Justice ("DOJ") appealed. Some states including Alabama, Arizona, Florida, and Texas have asked to file a brief in support of the government. A three-judge panel from the United States Court of Appeals for the Ninth Circuit will hear argument in the case on May 15, 2017.

International Refugee Assistance Project v. Trump

On March 16, 2017, in International Refugee Assistance Project v. Trump ("IRAP"), the United States District Court for the District of Maryland also issued a TRO relating to the Order. The IRAP TRO, however, was narrower than the TRO issued in Hawaii. This ruling only blocked implementation of Section 2 of the Order.  

Update: The DOJ appealed the IRAP TRO to the United States Court of Appeals for the Fourth Circuit. Typically, appeals at United States Courts of Appeals are first heard by a randomly selected three-judge panel and then, if deemed appropriate by the court, by all active judges on that court ("en banc" review). However, in IRAP, the Fourth Circuit ordered the parties to brief whether the case should be heard en banc in the first instance, and the judges have voted in favor of initial en banc review.

As litigation continues, we advise foreign nationals from the designated countries to avoid unnecessary travel.