It’s probably safe to assume that President Donald Trump isn’t happy about what’s been happening since he issued his January travel ban. Shortly after his inauguration, he signed an Executive Order barring entry into the U.S. for foreigners from seven primarily Muslim countries. The President cited the terrorist threat from these countries as being very high, stating, “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001.”
Chaos ensued, with protests filling major airports and lower courts blocking inaction of the Donald Trump travel ban. The most recent ruling, from the 9th Circuit Court of Appeals, stated, "The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”
Most are viewing this as a significant setback for the Trump administration. As the court battle continues, what countermoves should we expect from the President and how can you prepare for what comes next?
Breaking Down the Donald Trump Travel Ban
Executive Order 13769 was entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” The Order enacted three significant and immediate changes to current immigration policy:
- It placed a 90-day suspension on the entry of foreigners from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.
- It suspended for 120 the United States Refugee Admissions Program.
- It indefinitely suspended the entry of all Syrian refugees into the United States.
The Donald Trump travel ban did allow the Secretaries of State and Homeland Security to make case-specific exceptions when “in the national interest.” The Order also authorized the Secretaries of State and Homeland Security and the Director of National Intelligence to evaluate the refugee, visa, and overall admissions programs during the suspension period.
The impact was immediate and severe:
- Thousands of visas were cancelled with no warning;
- Hundreds of travelers with these visas were stopped at airports or at the border;
- Some travelers were detained.
The problem stemmed, in part, due to the rushed, abrupt nature of the ban; most pundits suggested the roll out was haphazard. The New York Times stated:
More than any of the myriad moves Mr. Trump has made in his frenetic opening days in office, the immigration order has quickly come to define his emerging presidency as one driven by a desire for decisive action even at the expense of deliberate process or coalition building.
Within a few hours, protestors’ flooded American airports to contest what they viewed as a ban on one particular religion. They called the Donald Trump travel ban discriminatory and cited the fact that the list of countries the ban affected did not include countries—like Saudi Arabia—where high profile attacks (like September 11, 2001) were born. The Washington Post documented 10 fatal attacks in the United States related to Islamic extremism since September 11, 2001. None of the perpetrators came from the seven countries named in the Donald Trump travel ban.
As the protests escalated, Washington and Minnesota filed suit, stating the Order unconstitutionally and illegally stranded residents overseas, split families, restricted travel, and damaged the state economies and public universities.
On February 3, the U.S. District Court for the Western District of Washington enacted a temporary restraining order on the Donald Trump travel ban. On February 9, the U.S. 9th Circuit Appeals Court ruled unanimously to uphold that restraining order. The ruling read, “Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, or has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.”
Here’s a timeline of events to date for the Donald Trump travel ban:
- January 21 – President Trump Inauguration
- January 27 – Donald Trump travel ban issued
- January 30 – State of Washington filed lawsuit to stop the ban
- January 30 – Federal Government countersued
- February 1 – State of Minnesota joined the State of Washington as plaintiffs
- February 3 – The U.S. District Court for the Western District of Washington enacted a temporary restraining order which halted the travel immigration ban
- February 4 – The U.S. Government appealed
- February 9 – The 9th Circuit Appeals Court upheld the blockage of the Donald Trump travel ban
Legal Options for the Donald Trump Travel Ban
CNN pointed out that the U.S. Supreme Court currently lacks its ninth Judge, which increases the likelihood of a 4-4 tie following ideological conservative/liberal lines. This would kick the Donald Trump travel ban back to the 9th Circuit ruling – which has already been established. In fact, the vote was unanimous, at 3-0 against the travel ban.
The options for the current administration include a high visibility battle at the U.S. Supreme Court, which many expect based on prior statements from President Trump. However, it would require five votes to overturn the lower court’s ruling; with a lengthy confirmation process expected for the next U.S. Supreme Court nominee, the court could decide not to hear the government’s appeal.
Or, the U.S. government could seek an “en banc” appeal, which would open the case to the full 11 members of the full U.S. Court of Appeals for the 9th Circuit. Interestingly, USA Today suggests this as a risky move, because this is a notoriously liberal court located in San Francisco. The administration has until February 23 to file.
The government could also go back to the original judge in Washington State. Remember, the original ruling from that judge was just a temporary restraining order, which typically lasts around 14 days. The next step would be a preliminary injunction, which is designed to stay in place indefinitely. It appears this process has begun, with the U.S. District Court for the Western District of Washington allowing both sides until February 17 to file. That decision would again start the appeals process again.
Here’s a final option: the Trump administration could write a new executive order. In fact, the 9th Circuit Appeals Court suggested that rewriting the order to allow those with legal status in the United States to be exempt from the ban.
How to Prepare for What’s Next?
These unprecedented actions caused a great deal of fear and uncertainty in the immigrant community currently residing in the United States. Those pursuing visas are uncertain about what is the next step in the immigration process.
Indeed, the Donald Trump travel ban has signaled an unprecedented shift in policy that seems to disregard the fine line between keeping Americans safe and alienating Muslim nations in a way that hurts innocent Muslim people and could potentially foster terrorism.
Currently, there are legal injunctions against the ban, which has temporarily halted its inaction. However, this is widely viewed as only the first step in a series of suits and countersuits which could make their way to the U.S. Supreme Court. In addition to the court battle against the executive order, there are a number of lawsuits pending by individuals directly affected by the ban. However, it is clear that the Trump administration is not backing down, despite losing in the lower courts.
In the meantime, the Republican Congress is shifting their attention to the H-1B visa program. They are expected to potentially change laws governing everything from the lottery system to how it is audited and monitored. It is likely that the new administration will make changes to these or other programs impacting immigration. The Trump administration could enact “extreme vetting,” as he proposed during the campaign. While no one seems to know exactly what that means, it would likely add additional hurdles to the immigration process, including additional security screening that could increase the processing time for visas. The Executive Director of the American Civil Liberties Union called extreme vetting “a euphemism for discriminating against Muslims.”
If you’re considering applying for a visa, do it as soon as possible; the odds are not high that restrictions will lessen in the next four years. It is important to remember that the President said during his campaign that he would shut off immigration entirely for anyone of the Muslim faith. The Donald Trump travel ban certainly seems to be a step toward fulfilling that promise.
Many of our clients have been profoundly and negatively affected by the Donald Trump travel ban. We will continue to work closely with our friends and colleagues to provide you with the most expert council during a stressful and challenging time in our country's history. Consider our firm when you are seeking strong advocates within the American legal system. Our skilled, experienced attorneys work in most facets of immigration law and can assist you with residency visa applications, business visas, waivers of immigration violations and deportation defense. We have successfully litigated in both state and federal courts.
Katz Law Office, Ltd. is committed to helping you down the legal pathway toward citizenship. Contact us today for a free 30-minute consultation.