November 30, 2021

Volume XI, Number 334

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November 29, 2021

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Travel Ban: Déjà Vu All Over Again, Again

On September 24, President Trump issued a “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” Most people know it better as Travel Ban 3.0 or EO3 (for “Executive Order #3”), the President’s third attempt to impose travel restrictions on nationals of certain countries who seek to enter the United States. If it feels like you’ve seen this movie before, that’s because you have.

The advent of EO3 has been quickly followed by one court effectively ending a lawsuit, and two others validating new lawsuits. The first was the Supreme Court’s decision on October 10 not to hear its pending case relating to the second travel ban order (“EO2”), because the order had been rendered moot by its own terms when it expired this fall. The second and third rulings both came down on October 17, when two district courts stopped EO3 from taking effect the next day.

All of this means that, for now, U.S. gates are open again to nationals of six of the eight countries – or at least as open as they have been in the recent past – but that may be temporary, and even with these rulings, travelers should remain wary. Ad hoc enforcement of the authority to bar entry has risen in the past year. In addition, two of the countries listed in EO3 – N. Korea and Venezuela – are not covered by the court orders. EO3’s narrower restrictions regarding these two countries remain in place.

What EO3 Says

The President’s Proclamation departed in several ways from the provisions of his earlier executive orders. First, the roster of affected countries has changed. It once again applies to six majority-Muslim countries, but this time it has added Chad and removed Sudan, in addition to listing Iran, Libya, Syria, Yemen and Somalia. Moreover, this time the President has added two non-majority-Muslim countries to the list: North Korea and Venezuela, though the number of North Korean travelers to the United States is negligible and EO3 only applies to a small number of Venezuelan government officials and their families, not the general population.

Second, EO3 contains more robust findings, spelling out in greater detail the purported detriment to national security resulting from travel by nationals of the listed countries. It documents the failures of the listed governments to cooperate sufficiently in providing security information to assist the U.S. in vetting the countries’ nationals who seek to enter the U.S.

What the District Courts Said

On October 17, Judge Derrick Watson in the District of Hawaii issued an opinion finding EO3 in violation of the Immigration and Nationality Act (“INA”), and ordering a stop to its implementation. Judge Watson, who had previously enjoined EO2, first ruled that EO3 (like its predecessor) “lacks sufficient findings” that the entry of individuals from the affected countries is detrimental to the U.S. and that the findings it does contain do not logically justify the restrictions contained in EO3. Second, he ruled that the proclamation violates the section of the INA that prohibits discrimination on the basis of nationality. As a result, Judge Watson issued a temporary restraining order prohibiting the Government from implementing EO3 as to the six Muslim-majority countries.

Later that same day, Judge Chuang in the District of Maryland issued his own opinion in a different challenge to EO3. Unlike Judge Watson, he found that EO3 violates not only the INA, but also the Constitution’s Establishment Clause, which prohibits discrimination based on religion. Judge Chuang, himself a former Deputy General Counsel of the Department of Homeland Security, found the same violation of the anti-discrimination clause of the INA that Judge Watson had highlighted. However, he went on to find that EO3 is rooted in the same unconstitutional intention to ban Muslims that the President has repeatedly expressed both during the Presidential campaign and after, and which courts found to be behind EO1 and EO2.

What Does It All Mean?

If your head is spinning from either the intricate legal dance taking place from coast to coast or the feeling that you’ve already seen this movie, you are not be alone. But here are the key takeaways from the latest developments:

  1. For now, EO3 is on hold. Judge Watson’s order, which is broader than Judge Chuang’s, is in effect. The travel ban as to Chad, Iran, Libya, Syria, Yemen and Somalia is on hold. Its narrower provisions as to North Korea and Venezuela are not.
  2. We’ve only just begun. Round 3 of the travel ban wars is just getting started. Both rulings are likely to be appealed – to the Ninth and Fourth Circuits respectively, each of which has previously ruled against EO2. Whichever way the appellate courts rule, this case is likely headed to the Supreme Court, and this time the Court will have to address the merits of the issues, after avoiding full engagement with EO2. That should happen within the year.
  3. While EO3 remains in place as to Venezuela, it only applies to very few people. Only officials of 5 named ministries in the government of Venezuela, and their families, are covered by the order.
  4. Nationals of the listed Muslim-majority countries should still exercise caution in traveling to the U.S. U.S. border authorities have stepped up their screening of travelers to the U.S. in the past year, particularly from countries in this region. The U.S. has the authority, on an individual ad hoc basis, to turn travelers away, even if the travel ban has been enjoined. While rare, that has occurred in a small minority of cases. So, travelers should be cautious, and should be prepared for the unexpected, unlikely though it may be.

In the meantime, as we watch the courts grapple with yet another travel ban, we will continue to experience déjà vu. Again.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VII, Number 296
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About this Author

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

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,...

202-747-1920
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