As reported in Mayer Brown’s January 28 Legal Update, US President Donald Trump signed an Executive Order on Friday, January 27, 2017, that included a travel ban on foreign nationals from seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen—the “affected countries”), a suspension of the US Refugee Admissions Program (“USRAP”) and an indefinite ban from the United States of new Syrian refugees.
The US Department of Homeland Security (“DHS”) immediately took enforcement steps, including detention of individuals from the affected countries upon their arrival in the United States at multiple airports across the nation and refusal of admission to approved refugees, nonimmigrant (temporary) visa holders and immigrant visa (green card) holders who are US permanent residents. In many cases, officials removed these individuals to their countries of origin. The media also reported instances in which air carriers refused boarding to such individuals at airports worldwide.
On the same day, the Department of State issued an “Urgent Notice,” advising that visa issuance for affected individuals had been suspended, effective immediately, until further notification and instructing those scheduled for visa interviews to not attend their visa appointments.
In response to these government actions, several legal actions were filed in federal court with decisions coming down this weekend in New York, Massachusetts, Virginia and Washington state.
- New York. In response to an Emergency Motion for Stay of Removal tied to the Petition for Writ of Habeas Corpus and Complaint filed as a class action by petitioners denied entry to the United States solely because of the Executive Order, a US district judge for the Eastern District of New York granted a stay on January 28, 2017, that enjoined officials from removing individuals with approved refugee applications, valid immigrant and non-immigrant visas, and other individuals from the affected countries solely on the basis of the Executive Order. The stay is effective as of the date of the order through the completion of a hearing before the court on the merits of the Petition.
- Massachusetts. A US district judge for the District of Massachusetts issued a Temporary Restraining Order (“TRO”) on January 29, 2017, that prevents the detention or removal of individuals with approved refugee applications or valid immigrant and non-immigrant visas, and other individuals from the affected countries who are legally authorized to enter the United States but for the Executive Order. The TRO, scheduled to last seven days from January 29, also instructs US Customs and Border Protection (“CBP”) to “notify airlines that have flights arriving at Logan Airport of this order [the TRO] and the fact that individuals on these flights will not be detained or returned based solely on the basis of the Executive Order.”
- Virginia. In a five-line decision issued on January 28, 2017, a US district judge for the Eastern District of Virginia barred the removal of three named petitioners and the petitioners—an estimated 50 to 60 permanent residents—who had been detained at Dulles International Airport, and required officials to allow all detained permanent residents to speak with lawyers.
- Washington. On January 28, 2017, a US district judge for the Western District of Washington temporarily stayed the removal from the United States of two petitioners at Seattle-Tacoma International Airport, with a hearing scheduled for February 3 to determine whether to lift the stay.
As a result of the legal actions over the weekend, following is a list of additional FAQs regarding the travel ban.
Question 1. Is the Executive Order’s travel ban still in effect?
Yes. On January 29, 2017, DHS issued a press release confirming the agency “will continue to enforce all of President Trump’s Executive Orders” and that “President Trump’s Executive Orders remain in place—prohibited travel will remain prohibited, and the US government retains its right to revoke visas at any time if required for national security or public safety.”
Question 2. Are US permanent residents still encompassed within the Executive Order’s travel ban?
Not necessarily. At the time of the writing of this Legal Update, the Secretary of Homeland Security issued a further announcement by which green card holders (i.e., lawful permanent residents) are presumptively exempt from the travel ban on the ground that their entry is deemed in the “national interest,” absent significant “derogatory” information indicative of a threat to security. DHS has posted the news of the implementation of the presumption on its website.
Question 3. To what extent do the decisions of the district courts protect affected individuals?
The interpretation is still fluid as of the time of this writing, but the decisions of the US District Court for the Eastern District of New York and the US District Court of Massachusetts appear to have nationwide effect, and most reports currently confirm this interpretation. The courts’ temporary stays therefore appear to protect affected individuals who had arrived in the United States or were in transit at the time the Executive Order was signed, and who have approved refugee applications or valid immigrant or non-immigrant visas, from detention (Massachusetts) and removal (Massachusetts and New York) solely on the basis of the Executive Order.
The decision by the US District Court of Massachusetts also includes specific guidance regarding CBP guidance to flights inbound to Boston’s Logan International Airport. The decision of the US District Court for the Eastern District of Virginia mandates the provision of counsel to, and bars the removal of, affected inbound passengers at Dulles International Airport only. The decision of the US District Court for the Western District of Washington is limited to staying the removal of two petitioners at Seattle Tacoma International Airport.
At the time of the writing of this Legal Update, it appears that officials are not consistently carrying out the orders contained in these decisions.
Question 4. What about affected individuals who were still overseas at the time the Executive Order was signed?
Based on the January 29, 2017 announcements from the Department of Homeland Security, unless they are US green card holders benefiting from the presumption discussed above, affected individuals will not be permitted to board international flights to the United States.
Question 5. Should employers take different actions than those recommended by Mayer Brown’s January 28, 2017, Legal Update?
A variety of questions remain, including whether persons born in one of the seven countries but who are citizens of and carry passports from a different, non-US country are banned from admission. UK and Canadian leaders have reported that their citizens are not covered, regardless of birth in one of the seven countries. There are reports of administration affirmation of non-application to dual nationals in at least certain instances, but no formal issuance of guidance as of the time of the writing of this alert.
Our guidance remains largely the same as in our prior alert of January 28, but note that in view of the fluidity of the situation, employers should ensure that any affected individuals in their work corps seek counsel in advance of any trip or planned travel.