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Presidential Proclamation Indefinitely Restricting Entry of Individuals from Designated Countries Is Fully Implemented Amid Ongoing Legal Challenges

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On December 4, 2017, the U.S. Supreme Court permitted the most recent version of President Trump's executive action restricting the entry of nationals from certain countries to take effect. The decision stayed nationwide injunctions granted by two federal district courts on constitutional and statutory grounds. This version of Trump's “travel ban,” (EO-3), issued on September 24, 2017, restricts the entry of nationals from Iran, Libya, Somalia, Syria, and Yemen—all of whom had been restricted under previous orders—as well as North Korea, Venezuela, and Chad. While litigation continues in the Courts of Appeals for the Fourth and Ninth Circuits, the Trump administration fully implemented EO-3 by December 8.

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1 Trump v. Hawaii, No. 17A550, 2017 WL 5987406, at *1 (S. Ct. Dec. 4, 2017); Trump v. Int'l Refugee Assistance Project, No. 17A560, 2017 WL 5987435, at *1 (S. Ct. Dec. 4, 2017).

2 Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017) [hereinafter EO-3].

3 U.S. Dep't of State Press Release, Presidential Proclamation Fully Implemented Today (Dec. 8, 2017), at https://www.state.gov/r/pa/prs/ps/2017/12/276376.htm [https://perma.cc/QAX4-QVRC].

4 For a more detailed account, see Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States, 111 AJIL 764 (2017).

5 Exec. Order No. 13,769, 82 Fed. Reg. 8977, 8978–79 (Jan. 27, 2017).

6 Id.; see U.S. Citizenship & Immigr. Servs., The United States Refugee Admissions Program (USRAP) Consultation & Worldwide Processing Priorities, at https://www.uscis.gov/humanitarian/refugees-asylum/refugees/united-states-refugee-admissions-program-usrap-consultation-worldwide-processing-priorities [https://perma.cc/MR7G-DBBZ] (outlining the requirements that executive officials “review the refugee situation,” “project the extent of possible participation of the United States in resettling refugees,” and “discuss the reasons for believing that the proposed admission of refugees is justified by humanitarian concerns, grave humanitarian concerns or is otherwise in the national interest”).

7 Johnson, Jenna, Trump Calls for ‘Total and Complete Shutdown of Muslims Entering the United States ,’ Wash. Post (Dec. 7, 2015), at https://www.washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslims-entering-the-united-states/?utm_term=.cc4b910b1b50.

8 See, e.g., Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (upholding a nationwide temporary restraining order); Aziz v. Trump, 234 F. Supp. 3d 724, 726, 737 (E.D. Va. 2017) (issuing a preliminary injunction).

9 Washington v. Trump, 847 F.3d at 1164–69.

10 Exec. Order No. 13,780, 82 Fed. Reg. 13,209, 13,211 (Mar. 6, 2017) [hereinafter EO-2].

11 Id. at 13,211, 13,213, 13,215.

12 Id. at 13,215–16 (allowing for case-by-case exceptions under certain conditions).

13 Hawaii v. Trump, 241 F. Supp. 3d 1119, 1123 (D. Haw. 2017); Int'l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 544 (D. Md. 2017).

14 Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017), vacated as moot by No. 16-1540, 2017 WL 4782860 (S. Ct. 2017); Int'l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc), vacated as moot by 138 S. Ct. 353 (2017).

15 137 S. Ct. 2080 (2017).

16 Id. at 2088. For coverage of how the U.S. State Department initially interpreted the scope of the June 26 decision, see Daugirdas & Mortenson, supra note 4, at 774–75.

17 E.g., Hawaii v. Trump, 871 F.3d 646, 654–59 (9th Cir. 2017) (upholding the district court's determination that individuals could have “bona fide relationships” with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins in the United States).

18 Trump v. Hawaii, 138 S. Ct. 1 (2017) (temporarily lifting the lower court injunction that blocked E0-2 from applying to refugees who had received such formal assurances).

19 Shear, Michael D., Nixon, Ron & Liptak, Adam, Supreme Court Cancels Hearing on Previous Trump Travel Ban , N.Y. Times (Sept. 25, 2017), at https://www.nytimes.com/2017/09/25/us/politics/trump-travel-ban-supreme-court.html?rref=collection%2Fsectioncollection%2Fmiddleeast.

20 Trump v. Hawaii, No. 16-1540, 2017 WL 4782860, at *1 (S. Ct. Oct. 24, 2017).

21 EO-3, supra note 2.

22 Id. at 45,162.

23 Id. at 45,161.

24 Id.

25 Id. at 45,162.

26 Id. at 45,163.

27 Id.

28 Id. at 45,164.

29 Id. at 45,165–67.

30 Id. at 45,165 (further providing for enhanced screening for these visa holders).

31 Id. at 45,166.

32 Id.

33 Id. at 45,163.

34 Id. at 45,165, 45,167.

35 Id. at 45,167–68.

36 Id. at 45,168.

37 Id. at 45,169.

38 Shear, Nixon & Liptak, supra note 19.

39 EO-3, supra note 2, at 45,171.

40 White House Press Release, President Donald J. Trump is Taking a Responsible and Humanitarian Approach on Refugees (Sept. 29, 2017), at https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-taking-responsible-humanitarian-approach-refugees [https://perma.cc/H5SV-VHLR].

41 Davis, Julie Hirschfeld & Jordan, Miriam, Trump Plans 45,000 Limit on Refugees Admitted to U.S. , N.Y. Times (Sept. 26, 2017), at https://www.nytimes.com/2017/09/26/us/politics/trump-plans-45000-limit-on-refugees-admitted-to-us.html?_r=0.

42 EO-2, supra note 10, at 13,216.

43 Exec. Order No. 13,815, 82 Fed. Reg. 50,055, 50,056 (Oct. 24, 2017).

45 Hawaii v. Trump, No. 17-00050-DKW-KSC, 2017 WL 4639560, at *1, 4 n.10 (D. Haw. Oct. 17, 2017) [hereinafter Hawaii Oct. 17 Opinion].

46 Id. at *4–8.

47 8 U.S.C. § 1182(f) (2012).

48 8 U.S.C. § 1185(a)(1) (2012).

49 Hawaii Oct. 17 Opinion, supra note 45, at *9.

50 Id. at *10–11.

51 8 U.S.C. § 1152(a)(1)(A) (2012).

52 Hawaii Oct. 17 Opinion, supra note 45, at *13. This opinion was issued before the Ninth Circuit's EO-2 decision had been vacated by the Supreme Court.

53 See id. at *3 n.9 (listing examples of comments made by Trump as president, from June–September 2017).

54 White House Press Release, Statement Regarding Court Action Affecting the President's Proclamation Regarding Travel to the United States by Nationals of Certain Countries (Oct. 17, 2017), at https://www.whitehouse.gov/briefings-statements/statement-regarding-court-action-affecting-presidents-proclamation-regarding-travel-united-states-nationals-certain-countries [https://perma.cc/EMN5-CVVX].

55 Hawaii v. Trump, No. 17-17168, 2017 WL 5343014, at *1 (9th Cir. Nov. 13, 2017) (quoting 137 S. Ct. 2080, 2088 (2017)).

56 Int'l Refugee Assistance Project v. Trump, No. TDC-17-0361, 2017 WL 4674314, at *39, 41 (D. Md. Oct. 17, 2017), appeal filed, No. 17-2231 (4th Cir. Oct. 23, 2017).

57 Id. at *19–22.

58 Id. at *23 (internal citations omitted).

59 Id. at *24–27.

60 Id. at *28–29 (citations omitted).

61 Id. at *29 (citing Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971)).

62 Id. at *30–31, 34–35.

63 Brief of Amici Curiae International Law Scholars and Nongovernmental Organizations in Support of Appellees at 9, 11,14–16, Hawaii v. Trump, No. 1:17-cv-00050-DKW-KSC (9th Cir. 2017) (No. 17-17168).

64 Trump v. Hawaii, No. 17A550, 2017 WL 5987406, at *1 (S. Ct. Dec. 4, 2017); Trump v. Int'l Refugee Assistance Project, No. 17A560, 2017 WL 5987435, at *1 (S. Ct. Dec. 4, 2017).

65 Supra note 64.

66 Hawaii v. Trump, No. 17-17168, 2017 WL 6554184 at *3, 24–25 (9th Cir. Dec. 22, 2017) (per curiam).

67 Id. at *25.

68 Id. at *1.

69 Id. at *11, 15.

70 Id. at *15.

71 Id. at *10 n.9; 25.

74 Id.

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