Travel Ban Update: Ninth Circuit Ruling and What’s Next

February 10, 2017 (Updated February 13, 2017)

US Appeals Court affirms injunction of travel ban; interior enforcement begins.

US President Donald Trump’s executive order (EO)—which included directives to ban the entry of individuals from seven Muslim-majority countries for 90 days—remains on hold after the US Court of Appeals for the Ninth Circuit rejected the administration’s request to stay a temporary restraining order (TRO) issued by US Judge James Robart on February 3. Following an emergency hearing, a three-judge circuit panel ruled on February 11 that the government’s motion to stay the TRO (i.e., to reinstate the EO pending further litigation on the merits) failed to show sufficient likelihood of ultimate success and failed to demonstrate irreparable injury to the public interest absent a stay of the TRO.

The litigation relating to the EO is still in its early stages, a fact the appeals court recognized in its decision when it stated that it weighed the relevant factors “in light of the limited evidence put forward by both parties at this very preliminary stage.” Following the ruling, the Ninth Circuit has asked the parties to brief whether the full Ninth Circuit should hear the case. Depending on the outcome of that process, either party can seek review in the US Supreme Court. Because the Supreme Court currently has only eight justices, a 4–4 tie would affirm the judgment of the Ninth Circuit without an opinion from the high court, thereby leaving Judge Robart’s TRO in place.

The appellate process is not the Trump administration’s only outlet to press the agenda expressed by the EO. The president could, for example, issue a modified EO that would seek to cure some of the perceived constitutional deficiencies in the original. This might include a travel ban carve-out for legal permanent residents or removal of references to religious minorities in the refugee provisions. In addition, because aspects of the current order are only valid for 90 days, a modified version of the EO could be of longer duration than the original.

Thus, the situation remains somewhat fluid. As of now, the issuance of nonimmigrant and immigrant visas and the admission of foreign nationals at ports of entry are “business as usual,” as if the EO had never been issued.

We are monitoring the situation and will provide updates as new developments occur.

Increase in ICE Raids Reported Nationwide

As of February 13, there have been widespread reports of increased raid and removal activity by Immigration and Customs Enforcement (ICE) nationwide. This is not wholly unexpected and is in accordance with Mr. Trump enforcement priorities as announced in his January 25 executive order, “Enhancing Public Safety in the Interior of the United States.”

We anticipate increased activity by ICE at worksites as well. In this environment of increased ICE enforcement, it is advisable to ensure corporate compliance with all federal immigration rules, including those relating to employment eligibility verification and recordkeeping, use of e-Verify (if applicable), and compliance with recordkeeping obligations related to H-1B visas and Program Electronic Review Management (PERM) labor certifications.


If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Eleanor Pelta
Eric S. Bord

San Francisco
A. James Vázquez-Azpiri

Lisa Stephanian Burton

Tracy Evlogidis