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Oral Argument Scheduled for Today on Enforcement of President Trump's January 27th Executive Order

February 7, 2017

On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order, prohibiting the federal government from enforcing certain sections of President Trump’s January 27, 2017 Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Executive Order”). The affected sections include those which:

  • suspend “immigrant and nonimmigrant entry” into the U.S. for nationals from the seven designated countries[1] for 90 days;
  • suspend the U.S. Refugee Admissions Program (“USRAP”) for 120 days;
  • upon resumption of the USRAP, prioritize refugee claims of certain religious minorities;
  • indefinitely suspend the entry of Syrian refugees into the U.S.; and
  • allow for case-by-case refugee admissions, insofar as it purports to prioritize refugee claims of certain religious minorities.

Pursuant to this temporary restraining order, the federal government may not enforce these provisions of the Executive Order at U.S. borders and ports of entry until it receives a further order from the court.

On February 4, 2017, both the U.S. Department of Homeland Security (“DHS”) and the U.S. Department of State (“DOS”) issued statements of compliance with the court order. Specifically, DHS confirmed that “DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.” DOS explained that while under the Executive Order it had provisionally revoked all valid visas of nationals of the seven designated countries, the “provisional revocation is now lifted, and those visas are now valid for travel to the United States, if the holder is otherwise eligible. Individuals whose visas are expired, or were physically cancelled, must apply for a new visa at a U.S. embassy or consulate, absent a Customs and Border Patrol (CBP) decision to grant parole or waive the visa requirement at the port of entry.”

Also on February 4, 2017, the U.S. Department of Justice (“DOJ”) filed an emergency motion with the Ninth Circuit Court of Appeals requesting an administrative stay of the District Court’s February 3, 2017 injunctive. The Ninth Circuit Court of Appeals denied the U.S. DOJ’s request for an immediate administrative stay and instead set forth a schedule such that Washington state’s and Minnesota state’s opposition to the emergency motion was due February 5, 2017 and the DOJ’s reply in support of the emergency motion was due Monday, February 6, 2017. The Ninth Circuit Court of Appeals will hear oral arguments on February 7, 2016 and an imminent decision is expected regarding the DOJ’s emergency motion for an immediate administrative stay will affirm or vacate the District Court’s nationwide temporary restraining order.

Please note that interpretations and implementations of the January 27, 2017 Executive Order remain fluid and are subject to change. Importantly, litigation is pending or in process in multiple jurisdictions around the country that may affect individual clients and groups of clients. Please contact our taskforce for further information.

[1] The seven countries affected by the Executive Order are Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

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