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Legal Update

Maryland Federal Judge Stays Travel Ban 3.0 for Those with “Close Ties” to US

20 October 2017
Mayer Brown Legal Update

On Tuesday, October 17, 2017, the US District Court in Greenbelt, Maryland, became the second federal court that day to enjoin the Trump administration’s third travel ban. In a 91-page opinion filed less than 24 hours after the US District Court in Hawaii issued its temporary restraining order, US District Judge Theodore D. Chuang found that plaintiffs are likely to succeed on the merits of their constitutional and statutory claims with respect to Section 2 of the presidential proclamation that imposed “travel ban 3.0.”

Section 2 of the presidential proclamation would impose nationality-based restrictions on travel to the United States by nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

Judge Chuang found that the latest policy is an "inextricable re-animation of the twice-enjoined Muslim ban" that President Trump called for multiple times on the campaign trail. "To the extent that the Government might have provided additional evidence to establish that national security is now the primary purpose for the travel ban, it has not done so," Judge Chuang wrote in his opinion.

Finding that a “fragmented” approach “would run afoul of the constitutional and statutory requirement for uniform immigration law and policy,” Judge Chuang enjoined, on a nationwide basis, the ban that had been scheduled to take effect on October 18, 2017. The Maryland order is more limited than the Hawaii order, however, in that it would allow some of the new restrictions to take effect for people who lack "a credible claim of a bona fide relationship with a person or entity in the United States." The Hawaii order does not draw this distinction.

Like the Hawaii order, the Maryland order does not affect the ban on travel from North Korea or the more limited restrictions on travel for certain Venezuelan government officials. Otherwise, pending further proceedings, travel from the listed countries remains unimpeded.

On the Horizon

The Trump administration will almost certainly appeal to the respective courts of appeal.

Guidance for Employers

Although the latest travel ban has been enjoined, travelers can expect more scrutiny of their visa applications and more intense port of entry questioning. Accordingly, employers should:

  1. Provide clear and direct communications to their work corps, referring them to reliable sources for the specific parameters of the current vetting procedures;

  2. Make an employer hotline, such as an e-hotline, available for any urgent questions and ensure that travel reimbursement and authorization sources are linked into the hotline;

  3. Provide guidance to employees on port admission and customs clearance processes, including ensuring that they carry full paperwork on their visa status or, if they are business travelers, the propriety of their activity (e.g., a conference itinerary) and indication of its short-term duration (a round-trip ticket and employment/payroll obligations in the home country);

  4. Advise employees that because devices such as mobile phones, laptop computers, and tablets can be checked for social media activity and other data, archiving confidential data in advance of travel is wise; and

  5. Ensure that their leadership in HR, global mobility, legal, and security stay informed on further restrictions and port practice developments.

Authors

  • Elizabeth (Liz) Espín Stern
    T +1 202 263 3825
  • Paul Virtue
    T +1 202 263 3875
  • Grace Shie
    Partner
    T +1 202 263 3845
  • Maximillian L. Del Rey
    T +1 202 263 3350
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