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EB-5 Insights Where Government Policies and Business Realities Converge

Court Issues Temporary Restraining Order Against Enforcement of January 27, 2017 Executive Order; Agencies Cooperating

Posted in Executive Order, Temporary Restraining Order, U.S. Customs and Border Protections

On February 3, 2017,  U.S. District Judge James L. Robart of the U.S. District Court for the Western District of Washington at Seattle issued a Temporary Restraining Order (“TRO”) halting the enforcement of the Executive Order (“EO”) “Protecting the Nation from Foreign Terrorist Entry into the United States,” signed by President Trump on January 27th, 2017.  The TRO was issued in connection with State of Washington, et al v. Donald Trump, et al (C17-0141JLR), filed with the Court earlier this week.

The TRO is effective nationwide and prohibits the enforcement of the ban on entry of nationals of the impacted countries with nonimmigrant (temporary) and immigrant (permanent) visas, refugees, and the permanent ban on Syrian refugees.

In granting the TRO, the Court found the State of Washington, and the other States in the U.S. have shown that the litigation against the EO is likely to be successful, that the States will suffer irreparable harm with respect to familial relationships, employment, travel, business, and education due to the enforcement of the EO.

It has been reported that U.S. Customs and Border Protections (CBP) has informed the airlines that they may board foreign nationals of the impacted countries who have visas and that they will be allowed entry to the U.S. in compliance with the TRO.  It has also been reported that the State Department has reversed its prior provisional revocation of valid visas of the impacted foreign nationals, allowing them to utilize these visas for entry to the U.S.

On February 4, 2017, the White House released a statement that they intend to seek a Stay of the TRO immediately and consider the provisions of the EO to be lawful and within the President’s authority.

Update:  On February 4, 2017, subsequent to the filing with the court of a notice of its intent to appeal the TRO, the U.S. Department of Justice (DOJ) filed an Emergency Motion to stay (or stop) the TRO with the U.S. Court of Appeals for the Ninth Circuit, pending a full hearing in connection with the lower court’s decision to grant the TRO.  The Ninth Circuit denied DOJ’s Emergency Motion and ordered briefing from both parties in connection with the lower court’s decision.  DOJ’s brief is set to be due at 11:59 pm on February 5, 2017, with the State of Minnesota et al having to file their reply brief by 3 pm on February 6, 2017.

GT will continue to monitor this constantly changing situation and provide updates.