The U.S. Court of Appeals for the Ninth Circuit has upheld a lower court injunction and declined to reinstate an executive order that sought to suspend the entry of nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen and all refugees to the United States. The Ninth Circuit explained that though federal immigration law vests the president with broad authority to make national security judgments concerning immigration, in this instance, the executive order did not provide a sufficient national security justification for the entry ban. The court vacated a portion of the lower court injunction that prohibited the government from conducting a worldwide review of visa security policies. The case is State of Hawaii v. Trump.

The ruling comes one month after the Fourth Circuit Court of Appeals affirmed a Maryland district court judge's decision to stop the entry ban from taking effect on constitutional grounds. The Fourth Circuit ruled in International Refugee Assistance Project (IRAP) v. Trump that the entry ban violated the First Amendment's prohibition on religious discrimination.

The Trump Administration has already asked the Supreme Court to lift the two federal court injunctions against enforcement of the entry ban, and to grant review of the Fourth Circuit's decision to consider whether the president has the power under the Constitution to implement the entry ban. The State of Hawaii and IRAP submitted briefs in opposition to the Administration's requests on Monday. The Supreme Court is expected to rule on those requests in the coming days.  

What This Means for Foreign Nationals

The two injunctions against enforcement of the entry ban remain in place. Unless and until the Supreme Court agrees to the Administration's request to lift the injunctions, foreign nationals who would be subject to the executive order may continue to apply for visas and enter the United States, provided they are otherwise admissible. However, nationals of restricted countries should contact their immigration counsel for updates before traveling abroad or returning to the United States. 

The Ninth Circuit's decision to vacate part of the lower court's injunction means that the Trump Administration can go forward with a planned worldwide review of the visa security policies of foreign countries.  Nationals of countries that do not cooperate in the review could be subject to U.S. visa restrictions. Fragomen is closely monitoring the status of the executive order and will issue updates as developments occur. This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.

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