Travel Ban II: New Administration Filing

On October 5, 2017 the Trump Administration filed a Brief asking the Supreme Court to dismiss the two cases challenging its March 6, 2017 Executive Order 13780 (Travel Ban II) on the grounds the cases are Moot.

The Plaintiffs in the two cases (Hawaii v. Trump and International Refugee Assistance Project v. Trump) urged the Court to decide the cases despite the recent changes (September 24, 2017 Proclamation) regarding travel restrictions arguing the cases are not Moot.

Travel Ban III

On Sunday September 24, 2017, President Trump amended the existing travel ban of March 6, 2017 (Executive Order 13780) by proclamation (titled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”). This version of the travel ban attempts to address many of the issues that the courts had identified in the previous versions. Specifically, this third ban is different in that it (1) sets forth specific reasons for disallowing entry of nationals of certain countries, (2) applies different levels of scrutiny and suspension on entry to different countries, (3) provides mechanisms for countries to be added or removed from the list, (4) is indefinite in duration, (5) adds North Korea, Venezuela, and Chad while removing Sudan, and (6) provides detailed information on persons who are not covered by it, including classes of persons identified by the Supreme Court.

This travel ban version may moot the legal challenge to E.O. 13780. The Supreme Court has already cancelled the scheduled October oral argument and asked the parties to submit briefs by October 5, 2017, addressing “whether or to what extent the proclamation may render the case moot.” The Supreme Court also asked for briefings on the suspension of the nation’s refugee program, which is not addressed in the proclamation and is scheduled to expire in October, as to whether that issue would soon be moot.

Travel Ban: Update on Hawaii Judge’s Exemption Ruling

Following the Hawaiian Judge’s ruling of July 13, 2017 (2017 WL 2989048), the Supreme Court on July 19, 2017 (2017 WL 3045234), has denied a request to clarify its order of June 26, 2017. It noted, however, that it would not disturb the decision of the district court holding that grandparents could not be excluded from the definition of “close family relationship”. The court nevertheless stayed the district court’s order concerning refugee resettlement agencies.

Travel Ban: Hawaii v. Trump, Exemptions

A Federal Judge in Hawaii ruled on Thursday July 13th, 2017 that three categories of individuals are now exempt from the revised travel ban (Executive Order 13780): grandparents; refugees who have a “formal assurance from an agency within the United States that the agency will provide…. placement services;” and refugees in the Refugee Admissions Program through the Lautenberg Program.

Supreme Court Update: Hawaii v. Trump, Travel Ban

On June 26, 2017, the U.S. Supreme Court, in a per curiam opinion, granted certiorari in Trump v. State of Hawaii and Trump v. International Refugee Assistance Project, 2017 WL 2722580 (2017) ordering a consolidated oral argument “during the first session of October Term 2017” (id. At *5). The October term commences on October 2. The Court also partially lifted the restrictions of the preliminary injunction on Executive Order 13780. Under this decision, the travel ban is in effect against “foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Id. At *5-7.

Travel Ban: Hawaii v. Trump, 2017

On June 12, 2017, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in a unanimous decision, affirmed the Preliminary Injunction order that had been entered by the U.S. District Court for the District of Hawai’i (Hawaii v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017)) against the second “Muslim travel ban” Executive Order (E.O. 13780). The Court stated that “immigration, even for the President, is not a one-person show.

Immigration: Constitutionality of Executive Order 13768

The Constitutionality of Executive Order 13768 Generally

On April 25, 2017, in County of Santa Clara v. Trump, 2017 WL 1459081 (N.D.Cal., 2017), a district court issued a preliminary nationwide injunction (pdf) against enforcing section 9 of executive order 13768, which seeks to withhold Federal grants from sanctuary jurisdictions. The court found that enforcement of section 9 of the order violated the Constitution’s separation of powers, the Tenth Amendment, and the Fifth Amendment’s due process requirements.