The third time is not the charm for President Trump, as a U.S. District Judge in Hawaii has blocked the latest attempt by the White House to implement a controversial travel ban. The third travel ban was issued by way of Presidential Proclamation on Sept. 24, 2017 and placed country-specific restrictions on both immigrants and nonimmigrants from eight nations — Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia.
Similar to its predecessors, the new ban was almost immediately challenged. The state of Hawaii, the International Refugee Assistance Project and others brought suit arguing that President Trump again exceeded his legal authority to set immigration policy, and that the new ban was another attempt to fulfill his campaign promise of a Muslim ban. On Oct. 17, just hours before the ban was to take effect, the courts responded. U.S. District Judge Derrick K. Watson issued a temporary restraining order enjoining the implementation and enforcement of Section 2 of the proclamation, and a U.S. District Judge in Maryland issued a nationwide preliminary injunction in the case of IRAP v. Trump, also prohibiting enforcement of Section 2.
In a 40-page decision, Judge Watson stated that the latest ban “suffers from precisely the same maladies as its predecessor.” It treats an individual’s nationality as an indicator of the threat that person poses, and it does so without providing evidence of any connection between the two. Judge Watson also asserted that although the Proclamation outlines the President’s national security concerns, it fails to reveal why existing law is insufficient to protect the nation from the threat of terrorism.
A Long Road Ahead
The fight over President Trump’s travel ban is far from over. The Supreme Court recently dismissed one of the two government appeals concerning the previous ban, but the issue is a little more complicated this time around. The new ban was put into effect following a comprehensive investigation by the DHS. This investigation was a component of the executive order that issued the March travel ban, and it examined the information-sharing and identity-management protocols and practices of roughly 200 countries. In coordination with the Department of State (DOS), the DHS was able to collect performance data from foreign governments and assess that data against a baseline criteria. Sixteen countries were eventually deemed inadequate and 31 others were classified as being “at risk.”
Following the initial assessment, the DOS conducted a 50-day engagement period with all foreign governments to improve their performance with respect to the baseline criteria. The Secretary of DHS then submitted a report to the President which detailed seven countries that were unwilling and/or unable to meet the baseline criteria. All seven countries, plus Somalia, were included in the Presidential Proclamation. Presumably, the fact that travel restrictions were announced following a detailed analysis by the DHS would help the government defeat opposition arguments that the President has not made appropriate findings to justify the travel ban, but whether or not the courts buy into that argument is yet to be determined.
For now, the latest Trump travel ban has been sidelined. Individuals from six of the eight countries identified in the Presidential Proclamation will be allowed to travel to the U.S., and the DOS has confirmed that officials will resume regular processing of visas for nationals of Chad, Iran, Libya, Somalia, Syria and Yemen. It is important to note that North Korea and Venezuela were not included in the Proclamation challenges. This means that all immigrants and nonimmigrants from North Korea and certain government officials from Venezuela are restricted from traveling to the U.S. despite the temporary restraining order and preliminary injunction issued by the District Courts.
Berardi Immigration Law will continue to closely monitor the travel ban and inform our clients of any further changes. Be sure to subscribe to our blog for the most up-to-date information!
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