UNITED STATES – Second judge rules against letting travel restrictions take effect

Foreign nationals can travel to the United States whether or not applicants have claims of “bona fide” ties to the U.S., because the Hawaii ruling, which is broader in scope, applies throughout the country.

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A second federal judge has ruled to stop the implementation of President Donald Trump’s new travel restrictions, though he did so by different legal reasoning than the first and crafted an order that is more limited in scope.

Key points:

  • Judge Theodore D. Chuang, a judge for the U.S. District Court for the District of Maryland, relied on statements Trump made as a presidential candidate and while in office in determining that the travel restrictions violate the Establishment Clause of the First Amendment. The judge determined the primary purpose of the restrictions was to bar Muslims from entering the country. He concluded that the national security justifications the government provided were not sufficient to support the scope of the ban.
  • Wednesday’s ruling followed a ruling Tuesday by Judge Derrick K. Watson, a judge for the U.S. District Court for the District of Hawaii, to halt the travel restrictions a day before they would have taken effect. Judge Watson relied primarily on federal statutory law rather than the Establishment Clause, determining that the travel ban was outside the scope of the authority provided by the Immigration and Nationality Act (INA). Watson said the restrictions ran afoul of the law’s prohibition on discriminating on the basis of nationality in the issuance of immigrant visas.
  • The Maryland ruling also differed from the Hawaii ruling in that it was more limited in scope, such that it only enjoined the government from enforcing the travel restrictions on applicants who have a credible claim of a bona fide relationship with a person or entity in the United States. This put the Maryland ruling in line with the U.S. Supreme Court’s ruling on an earlier version of the travel ban.
  • Trump’s latest executive order on travel would have placed new restrictions on certain foreign nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. Neither of the two rulings this week will affect the restrictions on Venezuela (which only apply to specific government officials and their families) or North Korea.

BAL Analysis: Foreign nationals can travel to the United States whether or not applicants have claims of “bona fide” ties to the U.S., because the Hawaii ruling, which is broader in scope, applies throughout the country. Appellate courts may yet reverse the decisions or could adopt a narrower scope than the Hawaii ruling did. If implemented, the new restrictions would not dramatically expand the number of employees subject to travel restrictions for most companies. BAL prepared an FAQ on the restrictions when they were released in September. The full analysis is available here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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