On February 9, 2017 a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously upheld a Federal District Court judge’s decision (TRO) to temporarily block the President’s Executive Order (EO) entitled Protecting the Nation from Foreign Terrorist Entry Into the United States.

Our previous update regarding the TRO, the current state of the EO and the respective travel ban can be found here.  Essentially, the travel ban on immigrants and nonimmigrants from the 7 designated countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) and restrictions to the refugee program remain suspended.

The Ninth Circuit’s decision spanned 29 pages and focused on the procedural aspects of the litigation. Specifically, whether the legal standards have been met to uphold the TRO and temporarily block the government from enforcing the EO while the broader legal questions are more fully considered by the lower court. The Ninth Circuit found that the plaintiffs (States of Washington and Minnesota) had standing to sue and were likely to win on the claim that the EO deprives persons “of life, liberty, or property, without due process of law.” The decision referenced prior Supreme Court cases and touched on Constitutional issues that will surely arise in later hearings. For example, “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” It continued, “[t]hese rights also apply to certain aliens attempting to reenter the United States after travelling abroad.”

What happens next? The government can ask the Supreme Court to review the Ninth Circuit decision or, before that, request a larger, en banc panel of the Ninth Circuit consider the case. The Ninth Circuit or the Supreme Court could grant or deny such a request.

In parallel, the trial court has set a schedule to hear the plaintiffs’ request for a preliminary injunction which, if granted, would likely have the same impact as the TRO and remain in place until the case is concluded. That could be several months.