‘See You in Court’—9th Circuit Refuses DOJ Request to Reinstate Trump Travel Restrictions

A three-judge panel of the U.S Court of Appeals for the 9th Circuit has unanimously upheld the freeze on President Donald Trump’s controversial immigration Executive Order. This means that enforcement of the order, which bars U.S. entry of foreign nationals from seven countries, will not be reinstated—at least not until further judicial review occurs.

Immigration

The Executive Order, issued January 27, included several provisions to investigate, tighten, and suspend immigration activity and benefits from nationals of “countries of particular concern.” Key among these was the 90-day suspension of entry to the U.S. for foreign nationals from Iran, Sudan, Libya, Somalia, Syria, Iraq, and Yemen.

An immediate source of both controversy and confusion, the order initially blocked nearly all immigrant and nonimmigrant entry from these countries—including holders of work visas such as the H-1B and lawful permanent residents (or green card holders).

Though White House and Department of Homeland Security officials since amended and clarified how the order would be interpreted and enforced for certain immigration categories, inconsistency and uncertainty remained—for example, whether green card holders could be admitted at all, whether they would be subject to additional case-by-case scrutiny, or whether they were completely exempt from the order’s restrictions.

The effect of the order rapidly hit the business community, particularly in the tech and science sectors and throughout Silicon Valley, where the ability to recruit and retain the most highly skilled workers across a globally competitive landscape is simply part of successful business.

Google employees who were traveling overseas—and who could—were directed to return to the U.S. immediately. Outgoing travel, whether for business or pleasure, had to be delayed or suspended for workers whose nationality and immigration status could subject them to scrutiny or restriction upon their return.

Meanwhile, attorneys general for two states—Washington and Minnesota—filed suit challenging the constitutionality of the order and requesting a stay on the implementation and enforcement of the order nationwide. More than 100 high profile companies, including big tech players such as Apple, Google, Facebook, Intel, Microsoft, and Twitter, joined the suit via a friends-of-the-court brief denouncing the Executive Order and its restrictions upon and disruption to their businesses.

The requested temporary restraining order was granted by Seattle Federal Judge James Robart on the basis that the continued enforcement of the Executive Order would adversely and irreparably affect residents of those (and all other) states in areas of employment, education, business, family relations, and freedom to travel.

The Department of Justice (DOJ) then appealed to the 9th Circuit—which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington—and asked that Judge Robart’s stay be reversed and the travel restrictions reinstated.

In its review, the 9th Circuit panel focused on the preliminary and narrow matter of Judge Robart’s temporary restraining order itself—specifically, in whether the granting of that order was proper. The court panel unanimously upheld the stay.

Next steps remain to be seen, as the DOJ may ask a still-divided 4-4 Supreme Court to weigh in on the reinstatement of the Executive Order and/or the underlying case—and its questions on the constitutionality of the Executive Order itself—may proceed. Alternatively, the Trump administration could return to the drawing board entirely and issue a new, more narrowly tailored Executive Order.

Until more information and developments arise, employers with workers who may be affected by these or similar travel restrictions should remain on alert and may wish to delay operations that would send workers across U.S. borders.

HollyHolly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.

She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.

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Questions? Comments? Contact Holly at hjones@blr.com for more information on this topic

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Author: Holly Jones