Executive Order Entry Ban Litigation Updates

March 24, 2017

 

This page provides updates on litigation arising from the 90-day bar on certain nationals from the six countries of Iran, Libya, Somalia, Sudan, Syria, and Yemen, created by Section 2(c) of Executive Order 13780, entitled "Protecting the Nation from Terrorist Entry into the United States," that was signed by President Trump on March 6, 2017 with an effective date of March 16, 2017.

Court orders from two U.S. District Courts (Maryland and Hawai'i) temporarily prevent the Government from enforcing the Section 2(c) 90-day entry bar and the Section 6 refugee admissions bar of Executive Order 13780. The Government has already appealed the Maryland order, and is expected to appeal the Hawai'i order as well. Meanwhile, litigation on the executive order continues in the U.S. District Courts in Hawai'i, Maryland, Washington, and Virginia. Other suits may follow. Executive Order 13780 provisions other than Section 2(c) and Section 6 are not included in the lawsuits or court orders, and took effect as planned on March 16, 2017.

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Litigation Quick-Reference


Hawai'i Case

A March 15, 2017 nationwide temporary restraining order from the U.S. District Court in Hawai'i prevents enforcement of Executive Order 13780's Section 2(c) 90-day entry bar and Section 6 120-day refugee entry bar. The Government has stated it will appeal the TRO to the Ninth Circuit Court of Appeals, but has not yet done so.

Maryland Case

A March 16, 2017 nationwide preliminary injunction from the U.S. District Court in Maryland prevents enforcement of section 2(c) 90-day entry ban. The Government has appealed the preliminary injunction to the Fourth Circuit Court of Appeals, located in Richmond, Virginia.

Washington Case

The U.S. District Court in Seattle, Washington has not issued a court order blocking enforcement of any part of Executive Order 13780. On March 17, 2017, the Seattle Court placed a stay on a State of Washington temporary restraining order motion, pending the outcome of any Government appeal of the TRO issued by the court in Hawai'i, as both courts are in the Ninth Circuit.

Virginia Case

On March 24, 2017, the U.S. District Court in Virginia denied the plaintiffs' motion for a temporary restraining order on Executive Order 13780, finding the executive order's entry bars to be within the authority of a president. The orders issued by the Maryland and Hawai'i, however, continue to block enforcement nationwide of the section 2(c) 90-day entry bar and the section 6 120-day refugee admissions bar. Read the Virginia court's TRO denial order and memorandum.

Litigation Chronology
The latest ...

March 24, 2017 - Virginia lawsuit. The U.S. District Court in Virginia denied plaintiffs' motion for a temporary restraining order on Executive Order 13780, finding the executive order's entry bars to be within the authority of a president. The orders issued by the Maryland and Hawai'i, however, continue to block enforcement nationwide of the section 2(c) 90-day entry bar and the section 6 120-day refugee admissions bar. Read the Virginia court's TRO denial order and memorandum.

March 23, 2017 - Maryland lawsuit. Responding to the Government's March 22, 2017 motion to expedite appeal and briefing schedules, the Fourth Circuit Court of Appeals issued a March 23, 2017 order that sets an expedited briefing schedule and oral argument date of May 8, 2017. At that time the Court will consider two aspects of the preliminary injunction on the Section 2(c) travel ban issued on March 16 by the U.S. District Court in Maryland:

  • The Government's opening brief in its appeal of that preliminary injunction, and the State of Maryland's response; and
  • A Government motion to stay the preliminary injunction while the appeal is pending

The Government plans to file its opening brief and motion to stay on March 24, 2017.

March 17, 2017 - Maryland lawsuit. On March 17, 2017, the Government appealed the U.S. District Court of Maryland's March 16 preliminary injunction order to the U.S. Court of Appeals for the Fourth Circuit, located in Richmond, Virginia.

March 17, 2017 - Washington lawsuit. On March 16, 2017, the U.S. District Court in Seattle, Washington, denied the States' emergency motion to apply the preliminary injunction issued against the first executive order (EO 13769) to the second executive order (EO 13780). The States also filed a standard (non-emergency) motion for a temporary restraining order to enjoin EO 13780, but on March 17, 2016, the Seattle court placed a stay on that TRO motion, pending the outcome of any Government appeal of the TRO issued by the court in Hawai'i, as both courts are in the Ninth Circuit.

March 16, 2017 - Maryland lawsuit. On March 16, 2017, the U.S. District Court in Maryland issued a nationwide preliminary injunction, preventing the Government from enforcing Executive Order 13780's 90-day entry bar, which had been scheduled to go into effect on March 16, 2017. Also read the court opinion supporting the preliminary injunction order. This order enjoins enforcement of the Section 2(c) 90-day entry bar, but not the Section 6 bar on refugee admissions. On March 17, 2017, the Government appealed the preliminary injunction order to the U.S. Court of Appeals for the Fourth Circuit, located in Richmond, Virginia.

March 15, 2017 - Hawai'i lawsuit. On March 15, 2017, the U.S. District Court in Hawai'i issued a nationwide temporary restraining order, preventing the Government from enforcing Executive Order 13780's Section 2(c) 90-day entry bar and Section 6 120-day refugee entry bar, which had been scheduled to go into effect on March 16, 2017.

March 15, 2017 - Washington lawsuit. On March 15, 2017, the State of Washington filed an emergency motion asking the District Court to issue a 14-day temporary restraining order (TRO) to halt enforcement of the travel bar in Executive Order 13780, in the event the Court denies (or intends to defer a ruling until after 12:01am EDT on March 16) the State's March 13 motions. On March 16, 2017, the U.S. District Court in Seattle, Washington, denied that emergency motion. The States have also filed a standard motion for a temporary restraining order to enjoin EO 13780. That motion is currently pending before the court, and the court will issue a separate order with respect to that motion

March 14, 2017 - Washington lawsuit. On March 14, 2017, the Government filed a response to the State of Washington's motions that the preliminary injunction issued on the first executive order be applied to the second executive order. As expected, the Government argues that Executive Order 13780 is "substantially different" than Executive Order 13769, is a valid exercise of presidential authority, and that the District Court should not halt enforcement of the new entry bar scheduled to go into effect on March 16, 2017. The District Court must now rule on the motions and response.

March 13, 2017 - Washington lawsuit. On March 13, 2017, the State of Washington filed an emergency motion asking the Seattle District Court to extend the preliminary injunction issued on the first executive order (13769) to the second executive order (13780). If the court does so, enforcement of the 90-day entry ban in the second order would be enjoined as well. Washington State bases its argument on the strong similarity of the two executive orders. Washington also moved for permission to amend the complaint that had been filed on the first executive order, including adding the states of California, Maryland, Massachusetts, New York, and Oregon as plaintiffs (the Court subsequently granted Oregon's petition to intervene, but the motion relating to the other states is still pending). The District Court must now consider these motions in the context of any response filed by the Government. In a subsequent order issued the same day, the Court directed the Government to file a response to Washington State's emergency motion, requiring the Government to respond no later than 4:30 p.m., Pacific Daylight Time, on March 14, 2017. In its order the Court stated it will defer scheduling a hearing, if any, on the emergency motion until after it has reviewed the Government's response.

March 10, 2017 - Washington lawsuit. The Government's March 6, 2017 notice to the District Court of Executive Order 13780 does not constitute a formal motion to modify the preliminary injunction. The States' March 9, 2017 response to that notice constitutes neither a motion to enforce the preliminary injunction nor an amended complaint. And so, on March 10, 2017, the District Court issued an order stating that it will not "resolve the apparent dispute between the parties concerning the applicability of the court’s injunctive order to the New Executive Order" until it has received a properly briefed motion from one of the parties, or until it receives an amended complaint from the States. The order notes that the plaintiff States indicated their intention to file an amended complaint with the Court "no later than March 15, 2017."

Summary litigation timeline until March 10, 2017

Here is a summary of the main litigation points arising out of Executive Orders 13769 (27 Jan 2017) and 13780 (6 Mar 2017), as a point of reference. See the top of this page for more recent updates.

January 27, 2017 – President Trump signs Executive Order 13769. Section 3 establishes a 90-day entry bar on immigrants and nonimmigrants” from 7 countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Sections 5(a), 5(b), 5(c), and 5(e) establish a 120-day suspension of admissions of refugees to the United States. These provisions went into effect on the day and hour the Executive Order 13769 was signed, creating confusion for individuals impacted by the bars.

January 30, 2017 – States of Washington and Minnesota file a complaint in the U.S. District Court for the Western District of Washington in Seattle (the “District Court”). The states ask the District Court for a preliminary injunction to prevent continued enforcement of the Section 3(c) 90-day bar and the Section 5 refugee admissions bar. The states also ask the District Court for a temporary restraining order (TRO) to immediately halt enforcement of the bars, while the Court considers the request for a preliminary injunction. Read the States' complaint. Read the Government's response to the motion for a TRO.

February 3, 2017 – The District Court grants the States’ motion for a TRO, and rules that the TRO must be applied nationwide. Enforcement of the Section 3(c) and Section 5 entry bars is halted. The Department of Homeland Security and the Department of State instruct their field offices to implement the TRO, and travel and entry rules are temporarily set back to pre-January 27, 2017 status quo. Read the TRO.

February 4, 2017 – The government appeals District Court's TRO to the Ninth Circuit Court of Appeals in San Franciso (the “Appeals Court”), and asks the Appeals Court to stay the Circuit Court's TRO.

February 9, 2017 – A three-judge panel of the Appeals Court denies the government's request for an immediate administrative stay of the TRO, and then on February 9, 2017, denies the government's emergency motion for a stay.

February 14, 2017 - District Court’s temporary restraining order now construed to constitute a preliminary injunction.

February 24, 2017 - The government requests the Appeals Court to "hold all proceedings on appeal in abeyance pending further order of the Court," including briefing deadlines that had been set for the underlying appeal. In its request, the government reasoned that since they are not seeking en banc review due to the planned issuance of a new executive order, the appeals court should likewise put on hold the entire underlying appeal.

February 27, 2017- The Appeals Court denies the Government's motion to hold appeal proceedings and briefing schedules in abeyance due to the government’s announcement that a new executive order would soon be issued.

March 3, 2017 – The District Court grants a government motion to extend by two weeks a deadline to respond to the states’ motion to certify the District Court suit as a class action.

March 6, 2017 – President Trump signs new Executive Order 13780, that includes a revised entry ban on nationals of 6 countries, rather than 7 (Iran, Libya, Somalia, Sudan, Syria, and Yemen), and as well as a 120-day bar on refugee admissions. The new order states that it revokes and replaces Executive Order 13769 in its entirety, effective March 16, 2017. The administration hopes that the new order will address the legal challenges that barred enforcement of the prior 90-day entry bar on citizens of the same six countries plus Iraq. The same day, the Government asserts to the District Court that “This Court’s injunctive order does not limit the Government’s ability to immediately begin enforcing the New Executive Order,” on March 16, 2017.

March 8, 2017 – On March 7, 2017, the government moves to withdraw its appeal to the Ninth Circuit Court of Appeals. On March 8, 2017, the Appeals Court grants the government's motion, and dismisses the appeal. The District Court's preliminary injunction continues in effect, and the underlying suit filed in District Court by the States of Washington and Minnesota continues to proceed.

March 9, 2017 – The States of Washington and Minnesota file a response contesting the Government’s assertion that it can begin enforcing Executive Order 13780 on March 16, 2017, and asks the court to “confirm that its preliminary injunction continues to restrain Defendants from implementing sections 2(c) and 6(a) of the Second Executive Order, which purport to reinstate provisions of the First Executive Order already enjoined by the Court.”

March 10, 2017 - The Government's March 6, 2017 notice to the District Court of Executive Order 13780 does not constitute a formal motion to modify the preliminary injunction. The States' March 9, 2017 response to that notice constitutes neither a motion to enforce the preliminary injunction nor an amended complaint. And so, on March 10, 2017, the District Court issued an order stating that it will not "resolve the apparent dispute between the parties concerning the applicability of the court’s injunctive order to the New Executive Order" until it has received a properly briefed motion from one of the parties, or until it receives an amended complaint from the States. The order notes that the plaintiff States indicated their intention to file an amended complaint with the Court "no later than March 15, 2017."

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