President Donald Trump signed a new immigration “travel ban” executive order on March 6, 2017, effective March 16. The new order, which has been temporarily blocked, revokes a previous executive order signed on January 27, 2017, and reduces to six, from the previous seven, countries whose nationals are suspended from entry under a “temporary pause.” The order exempts permanent residents and valid visa holders as of certain dates and times, and provides for case-by-case discretionary waivers. The order also suspends refugee travel to the United States for 120 days for those not previously admitted, subject to waivers in certain circumstances. The new order includes explanations of President Trump’s rationale for the order’s provisions.

Hawaii and Maryland Decisions

On March 15, a federal district court in Hawaii blocked the new executive order, granting a motion for a temporary restraining order. The court’s injunction applies nationwide. The government is expected to appeal, but in the meantime the executive order cannot take effect as planned. The federal court held that the plaintiffs had a strong case that the President’s March 6 executive order, like his earlier order, violated the Constitution’s First Amendment freedom of religion clause by disfavoring Muslims. In reaching that conclusion, the court looked beyond the text of the executive order to statements made by President Trump and his advisors in favor of a Muslim immigration ban.

On March 16, this decision was reinforced by a separate preliminary injunction issued by a federal district court in Maryland. The court in this separate case also looked to the campaign statements of President Trump, as well as statements by President Trump and other individuals within his administration after the first executive order was blocked by the Ninth Circuit. This court also found that the plaintiffs have a strong chance of success on the merits of the case, including discrimination on the basis of nationality under the immigration laws and discrimination on the basis of religion under the Constitution. The Maryland decision limited its nationwide injunction to the portion of the executive order addressing visa issuance to the six identified countries.

Several other states also filed or joined legal challenges against the new travel ban order, including Washington, Wisconsin, Virginia, California, New York, Oregon, and Massachusetts. Decisions on those filings were pending as of press time.

Details of the New “Travel Ban”

The new list of countries on a “temporary pause” for entry of their nationals to the United States under the executive order included Iran, Libya, Somalia, Sudan, Syria, and Yemen, but did not include Iraq, which the new order says “presents a special case.” The March 6 executive order noted that “[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.” The new list of countries is “subject to categorical exceptions and case-by-case waivers,” the order stated. The new order made an exception for nationals of the countries on the banned list who had a valid visa at certain specified times and dates; are permanent residents; have other valid travel documents; are dual nationals who are traveling on a passport issued by a non-designated country; are traveling on a diplomatic visa; have been granted asylum; are in refugee status and have already been admitted to the United States; or have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The March 6 executive order also listed examples of possible discretionary waiver cases, such as returning students in an ongoing program of study, and called for a review of all nonimmigrant visa reciprocity agreements and arrangements, among other things.

President Trump’s previous “travel ban” executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” was signed on January 27, 2017. Among the most controversial aspects of the order were a ban on entry to the United States for a period of 90 days for people from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; suspension of the U.S. Refugee Admissions Program for 120 days (with indefinite suspension for refugees from Syria); and prioritizing refugee claims based on religion. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on February 9, 2017, issued a temporary restraining order against key provisions of the travel ban. Among other things, the panel rejected the government’s argument that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable.

The March 6 executive order is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states. The Hawaii decision temporarily blocking the executive order is at https://docs.justia.com/cases/federal/district-courts/hawaii/hidce/1:2017cv00050/132721/219.

The Maryland decision temporarily blocking the executive order is at https://assets.documentcloud.org/documents/3518169/Read-the-federal-judge-s-ruling-in-Md-on-Trump-s.pdf