Travel Ban Update

The President’s third attempt at preventing certain foreign nationals from entering the United States has hit another speed bump. On December 22, 2017, the 9th Circuit Court of Appeals issued a unanimous decision to partially block the latest Trump travel ban, which was issued via Presidential Proclamation on September 24, 2017. The three-judge panel determined that the President exceeded his power in issuing the directive that established country-specific travel restrictions for nationals of Chad, Iran, Libya, Somalia, Syria and Yemen. This ruling, however, will not have an immediate effect. Earlier this month, the Supreme Court issued a stay that will allow the government to continue fully implementing the travel ban despite the 9th Circuit ruling.

Authority to Issue Travel Ban

The President’s power to issue a travel ban is derived from federal statute and delegated to him by Congress. According to the Immigration and Nationality Act (INA), if the President determines that the entry of “any aliens or of any class of aliens” would be detrimental to the interests of the U.S., he may “suspend the entry of all aliens … or impose on the entry of aliens any restrictions he may deem appropriate.” In addition, the President is authorized to exercise this power and impose travel restrictions “for such period as he shall deem necessary.”

On paper, the President’s power to issue a travel ban seems fairly straightforward. If he can show that it would be detrimental to admit a group of aliens into the U.S., that group can be denied admission. Well, isn’t that exactly what the latest travel ban does? The President has determined that allowing foreign nationals from six designated countries to enter the U.S. would be detrimental to the security and safety of the American people. So, why does the 9th Circuit disagree?

9th Circuit Reasoning

In the 71-page joint opinion, the 9th Circuit concludes that the President’s issuance of the Proclamation exceeds the scope of his congressionally delegated authority. According to the court, “the Proclamation conflicts with the statutory framework of the INA by indefinitely nullifying Congress’s considered judgments on matters of immigration.” The stated purposes of the travel ban are to prevent entry of terrorists and persons posing a threat to public safety, but, as the court points out, Congress has already acted to effectuate those purposes in other sections of the INA by creating numerous inadmissibility grounds.

Keep in mind, the 9th Circuit has determined that the travel ban is illegal, but the judges did not say that it should be completely halted. Rather, the court stated that it should only be enforced against individuals that cannot demonstrate a bona fide relationship to a person or entity in the U.S.

What to Expect

At this point, it is almost inevitable that this case makes it to the Supreme Court, and it could even happen this term. Many legal experts believe the justices will agree to speed the case onto their docket in 2018, which means a ruling would be issued by the end of June. Until then, the travel ban remains in effect and will continue to impact the travel of foreign nationals from the six designated countries.

Berardi Immigration Law is committed to providing our clients with the most accurate and up-to-date information. We will continue to monitor the travel ban closely. Be sure to check back frequently for more updates!