On Feb. 9, 2017, the U.S. Court of Appeals for the Ninth Circuit
ruled in State
of Washington v. Trump to uphold a lower court’s order to stay the Administration’s executive
barring entry into the United States of foreign nationals from
The decision by a three-judge panel
(appointees of Presidents Jimmy Carter, George W. Bush and Barack Obama,
respectively) was unanimous. The court did not decide whether President Trump’s
travel ban, formally titled “Protecting the Nation From
Foreign Terrorist Entry Into the United States,” violated
the Constitution. Instead, the court ruled only that, in its analysis, there
was enough evidence to support claims by the plaintiff-appellees to leave the
lower court’s order in place and bar enforcement of the EO until those claims
could be resolved. The court rejected the Assistant Attorney General’s argument
that the Executive Branch, the President of the United States, determinations
on immigration and the safety of the country, are beyond review of courts.
“[A]lthough the Government points to the fact
that Congress and the Executive identified the seven countries named in the
Executive Order as countries of concern in 2015 and 2016,” the court stated in
part, “[t]he Government has not offered any evidence or even an explanation of
how the national security concerns that justified those designations, which
triggered visa requirements, can be extrapolated to justify an urgent need for
the Executive Order to be immediately reinstated.” The court also held that the
states had legal standing to challenge the alleged “religious discrimination”
under the Establishment Clause of the First Amendment.
President Trump’s order was issued on Jan.
27, suspending the issuance of visas and other immigration benefits to citizens
of seven countries. Despite a court-ordered halt to President
Donald Trump’s Jan. 27 EO banning citizens from seven predominantly Muslim
countries from entering the United States, the impact on thousands of
international students pursuing education in the United States remains
substantial. (See ADEA Washington
Update, February 2017, for a detailed
discussion of the EO itself.)
the Institute of International Education (IIE), there are
roughly 1 million international students studying in the United States. USA Today, citing 2015 Department of Homeland Security data, reported that
almost 24,000 students from Iran, Iraq, Libya, Somalia, Sudan, Syria and
Yemen—the seven countries named, were affected by the EO travel ban. The vast
majority of students impacted are from Iran. These students outnumber those
from the other six countries combined, according to IIE figures.
conferences have also been affected by the ban, with citizens of the nations
named in the order hesitant to travel to the United States for fear that their
travel will be disrupted or that they will not gain entry when they arrive.
Likewise, U.S.-based nationals or dual nationals from the seven named countries
are shelving plans to travel to conferences abroad to avoid the possibility
that they might not be able to re-enter the United States.
indications that the Trump Administration is revising the EO to address the
legal challenges raised by the court; all eyes are on the Trump Administration,
waiting the next iteration of the immigration EO. ADEA will provide an update
if a new EO is issued.