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The Latest Turn in the Travel Ban Road

A few weeks ago, we wrote about the latest district court decisions involving the President’s so-called travel ban, in which a Hawaii court fully enjoined the proclamation, while a Maryland court allowed it to stand as to travelers without bona fide ties to the U.S. The Hawaii court’s order meant that Travel Ban 3.0 was put on hold.

The New Ruling

On November 13, a panel of the Ninth Circuit Court of Appeals partially and temporarily overturned the Hawaii court’s ruling. It granted a partial stay, agreeing with the Maryland court that, for now at least, the ban can go into effect as to travelers from Chad, Iran, Libya, Somalia, Syria and Yemen without bona fide connections to the U.S.

What It Means

The new ruling applies the bona fide test articulated by the Supreme Court last summer. It means that travelers from the six countries who have a “close familial relationship” with a person in the U.S. may travel here. Such a relationship includes grandparents, grandchildren, brothers- and sisters-in-law, aunts and uncles, nieces and nephews, and cousins. The ruling also permits those who have a relationship with an entity in the U.S. that is formal, documented and formed in the ordinary course of business to travel here. This includes students and individuals with valid job offers, but not tourists or patients seeking medical care.

Practical Take-Away

As a practical matter, a large number – likely most – visa applicants from these countries will still qualify to come to the U.S., as they will have bona fide ties here. However, it bears recalling that the government still retains the authority to reject visas or entry on a case-by-case basis and anecdotal data indicate that more such rejections have taken place in the past year than in prior years.

What’s Next

As noted last month, we are nowhere near the end of this legal odyssey. The Fourth Circuit has yet to review the Maryland court’s order, and the Ninth Circuit’s new ruling is only a temporary stay, pending a more considered decision down the road. Oral arguments in the Ninth Circuit are scheduled for December 6, and in the Fourth Circuit on December 8. And virtually everyone expects this case to end up back in the Supreme Court sometime in the next year. So, there are more twists and turns in the road ahead. Stay tuned.

Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VII, Number 319

About this Author

Jonathan E. Meyer, Sheppard Mullin, International Trade Lawyer, Encryption Technology Attorney

Jon Meyer is a partner in the Government Contracts, Investigations & International Trade Practice Group in the firm's Washington, D.C. office.

Mr. Meyer was most recently Deputy General Counsel at the United States Department of Homeland Security, where he advised the Secretary, Deputy Secretary, General Counsel, Chief of Staff and other senior leaders on law and policy issues, such as cyber security, airline security, high technology, drones, immigration reform, encryption, and intelligence law. He also oversaw all litigation at DHS,...

Greg L. Berk Labor & Employment Attorney Sheppard Mullin Orange County, CA

Greg Berk is a partner in the firm’s Labor and Employment Practice Group. He leads the Firm’s immigration practice and is based in Orange County, California. He is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization. He is the author of Immigration Checklists and Practice Pointers – A  Desk Reference for Attorneys and HR managers. He has also taught immigration law at two college-level paralegal certification programs in California.

Areas of Practice

He has over 20 years of...