Overview of “Travel Ban” Litigation and Recent Developments

Overview of “Travel Ban” Litigation and Recent Developments

Legal Sidebari

Overview of “Travel Ban” Litigation and
Recent Developments
Updated April 23, 2018
This Sidebar provides an overview of the series of three executive actions (the first two taking the form of
executive orders, and the third issued as a presidential proclamation) commonly referred to as the “Travel
Ban,” which restrict the entry of specified categories of non-U.S. nationals (aliens) into the United States,
and the litigation related to those executive actions. The Sidebar also addresses a fourth executive
action—an executive order issued on October 24, 2017—which announced the general resumption of
refugee admissions into the United States (subject to certain restrictions) following the expiration of a
temporary suspension on such admissions.
The Sidebar will be updated to reflect ongoing developments.
Entry Restrictions Currently in Effect
A September 24, 2017 presidential proclamation currently bars entry indefinitely to the following groups
of aliens (subject to certain waivers and exceptions described in the proclamation) seeking entry as
immigrants or nonimmigrants:
 Nationals of five countries (Iran, Libya, Somalia, Syria, and Yemen) who are traveling on
specified categories of visas (see the September 24 entry in the Table below for full details by
country);
 Nationals of North Korea; and
 Certain Venezuelan government officials and their immediate family members seeking entry on
temporary visitor visas (see the September 24 entry in the Table for additional details).
The Supreme Court will hear oral arguments in a case about the lawfulness of these restrictions on April
25, 2018.
Congressional Research Service
https://crsreports.congress.gov
LSB10017
CRS INSIGHT

Prepared for Members and
Committees of Congress

Congressional Research Service
2
Background on Executive Actions and Related Litigation
Several federal district courts enjoined the implementation of the first two executive orders establishing
the Travel Ban (referred to here as “EO-1” and “EO-2,” respectively, and summarized in the January 27
and March 6 entries of the Table) on statutory and constitutional grounds. These executive orders
imposed restrictions on foreign nationals from specified countries traveling to the United States and aliens
seeking to enter the United States as refugees. After the U.S. Courts of Appeals for the Fourth and Ninth
Circuits upheld nationwide injunctions against EO-2, which contained provisions barring the entry of
nationals of six Muslim-majority countries for 90 days and suspending the entry of refugees for 120 days,
the federal government petitioned for Supreme Court review. The Court granted certiorari to review the
injunctions against EO-2 and partially stayed their effect pending the Court’s consolidated review of the
Fourth and Ninth Circuit decisions. While those cases were pending before the Supreme Court, President
Trump issued a presidential proclamation (summarized in the September 24 entry of the Table), the most
recent of the three “Travel Ban” orders. In short, the proclamation modified the scope and duration of
travel restrictions on foreign nationals from five countries covered by earlier versions of the Travel Ban
(Iran, Libya, Somalia, Syria, and Yemen) and imposed new travel restrictions on certain aliens from three
additional countries (Chad, North Korea, and Venezuela). The Trump Administration subsequently lifted
the restrictions applicable to aliens from Chad, effective April 13, 2018.
On October 10, 2017, after having canceled oral argument in the pending EO-2 litigation, the Supreme
Court ruled that the government’s appeal of the Fourth Circuit’s decision was moot because EO-2’s 90-
day entry restrictions had expired on September 24, 2017, and the Court vacated the Fourth Circuit’s
decision with instructions to dismiss the plaintiffs’ EO-2 challenge. Two weeks later, on October 24,
2017, the day that EO-2’s 120-day refugee suspension expired and hours before a new executive order
announced the general resumption of refugee admissions, the Supreme Court dismissed as moot the
government’s appeal of the Ninth Circuit’s decision (which involved a challenge to both EO-2’s 90-day
entry restrictions on aliens from certain countries and the 120-day refugee suspension) and vacated the
Ninth Circuit decision.
Plaintiffs in Hawaii, Washington, and Maryland filed lawsuits challenging the presidential proclamation
on constitutional and statutory grounds, raising largely the same issues that they raised regarding EO-2
(these issues are analyzed in CRS Report R44969). Subsequently, federal district courts in Hawaii and
Maryland preliminarily enjoined the implementation of most aspects of the presidential proclamation. In
late December 2017, the Ninth Circuit affirmed in significant part the Hawaii district court injunction, and
about a month later, on January 19, 2018, the Supreme Court granted the government’s petition for
review of the Ninth Circuit decision. Oral arguments are scheduled to take place on April 25, 2018. With
regard to the Maryland district court injunction, which the Fourth Circuit affirmed in significant part on
February 15, 2018, the parties have agreed that the Supreme Court should hold the government’s petition
for review in that case pending the Court’s decision in the Hawaii case.
Under orders that the Supreme Court has issued in both the Ninth and Fourth Circuit cases, the Hawaii
and Maryland injunctions are to remain stayed until resolution of the government’s appeals to the
Supreme Court. Thus, pending an eventual decision from the High Court or its issuance of a new order to
the contrary, the government is allowed to continue enforcing the proclamation in full.

Congressional Research Service
3
Note about Refugee Admissions
The October 24, 2017 executive order announced the resumption of the refugee admissions program
under an “improved” vetting process, subject to additional “special measures” for the vetting of certain,
unidentified categories of refugees “whose entry continues to pose potential threats and subject also to
periodic agency review of the refugee admission process.” A memorandum to the President from three
executive agencies (the Department of State, the Department of Homeland Security (DHS), and the Office
of the Director of National Intelligence)—dated October 23, 2017 and referenced with approval in the
October 24 executive order—specified that the ongoing “special measures” included two restrictions on
refugee admissions: (1) an indefinite pause on the admission of “derivative” refugees (i.e., spouses and
unmarried children “who are ‘following-to-join’ principal refugees that have already been resettled in the
United States—regardless of nationality”); and (2) a 90-day pause on the admission of refugees from
eleven unlisted countries, subject to certain waivers. On January 29, 2018, DHS made a new
announcement concerning “enhanced security procedures for refugees” which introduced the following
“new measures”: (1) “additional screening for certain nationals of high-risk countries”; (2)
“administering the [refugee program] in a more risk-based manner”; and (3) “periodic review and update
of the refugee high-risk country list and selection criteria.” The new announcement did not state whether
the two “special measures” from the October 23, 2017 agency memorandum would be discontinued.
On December 23, 2017, a federal district court in Seattle issued a nationwide preliminary injunction
against the application of the “special measures” from the October 23, 2017 agency memorandum to any
alien with a bona fide relationship to a person or entity within the United States. The district court
reasoned that the restrictions likely violated the Immigration and Nationality Act and the Administrative
Procedure Act. Whether the January 29, 2018 DHS announcement concerning “enhanced security
procedures for refugees” means that DHS has decided to discontinue the restrictions set forth in the
October 23, 2017 agency memorandum, and whether the preliminary injunction against those restrictions
should therefore be vacated as moot, are questions that the parties continue to litigate before the district
court.
Timeline
The following Table provides a timeline of the Travel Ban orders and the course of litigation concerning
those orders. In addition, EO-1 and EO-2 and their related litigation are discussed in detail in CRS Report
R44969 and in these earlier Sidebars.
Travel Ban Timeline (all dates 2017 unless otherwise noted)
January 27
Issuance of EO-1

Barred entry to the following classes of aliens: (1) persons from seven
countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) for 90 days; (2)
refugees from any country other than Syria for 120 days; and (3) refugees from
Syria, indefinitely.

Lowered cap for refugee admissions for fiscal year 2017 from 110,000 to
50,000.

For future refugee applications, instructed the State Department and the
Department of Homeland Security (DHS) to prioritize claims of religious

Congressional Research Service
4
persecution “provided that the religion of the individual is a minority religion in
the individual’s country of nationality.”

Did not, by its terms, exempt lawful permanent residents (LPRs) or dual
nationals who also held a passport issued by a nonlisted country.

Provided for case-by-case waivers “in the national interest,” including for
refugee adherents of minority religions fleeing religious persecution.
February 3
A federal district court in Washington issues temporary restraining order (TRO) barring
implementation nationwide of all EO-1 entry restrictions.
February 3
A Massachusetts federal district court rules for the government in denying a motion to
extend a TRO against EO-1 entry restrictions.
February 9
Ninth Circuit affirms the Washington district court’s TRO on due process grounds.
March 6
Issuance of EO-2 (with effective date of March 16)

Removed Iraq from the list of restricted countries.

Removed the indefinite restriction on Syrian refugees, placing them into the
general 120-day bar for all refugees.

Removed instruction to prioritize future refugee claims of religious persecution
for adherents of minority religions. Also removed reference to minority
religions in waiver provisions.

Exempted from entry restrictions, inter alia, LPRs, dual nationals traveling on
the passport of a nonrestricted country, and aliens already in the U.S. or
already in possession of valid U.S. visa.

Expanded waiver provisions for persons from the six countries to include
numerous bases, including “significant contacts” with the United States and
prevention of “undue hardship” from familial separation.
March 15
The Hawaii federal district court issues preliminary injunction barring implementation
nationwide of all EO-2 entry restrictions.
March 16
The Maryland federal district court issues preliminary injunction barring implementation
nationwide of entry restrictions against citizens of the six listed countries.
March 24
A Virginia federal district court rules for the government in declining to enjoin EO-2
entry restrictions.
May 25
Fourth Circuit affirms Maryland district court injunction on constitutional grounds
(Establishment Clause).
June 12
Ninth Circuit affirms Hawaii district court injunction on statutory grounds.
June 26
Supreme Court issues per curiam opinion (1) agreeing to hear Fourth and Ninth Circuit
cases in 2017 October Term; and (2) granting partial stay of injunctions, allowing the
government to apply EO-2 to aliens who do not have a “bona fide relationship” with a
U.S. person or entity.
July 13
The Hawaii federal district court rules that “bona fide relationship” includes (1) extended
family members and (2) refugees covered by a formal assurance from a U.S. resettlement
agency.
July 19
Supreme Court, in one-paragraph order, leaves part (1) of the July 13 Hawaii district
court decision in place but stays part (2) pending the government’s appeal to the Ninth
Circuit.
September 7
Ninth Circuit affirms both parts of the July 13 Hawaii district court decision.
September 12
Supreme Court, in a one-paragraph order, stays the September 7 Ninth Circuit decision
with respect to refugees covered by a formal assurance from a U.S. resettlement agency,
thus allowing the government to apply EO-2 to exclude such refugees but not extended
family members during the pendency of the litigation.

Congressional Research Service
5
September 24
Presidential Proclamation 9645, issued on the day that EO-2’s 90-day entry restriction on
persons from the six listed countries was set to expire, extends the entry restrictions on
some persons from each of the six countries identified in E0-2 except Sudan. The
proclamation also adds certain entry restrictions, effective October 18, 2017, against
persons from North Korea, Chad, and Venezuela. The proclamation contains
substantially the same waiver and exemption provisions as EO-2. All of the entry
restrictions in the proclamation are indefinite, subject to periodic reassessment
procedures.
The restrictions in the proclamation bar entry of the following specific categories of
persons:

Yemen, Libya, Chad: all immigrants; nonimmigrants seeking entry on B-1, B-2,
and B-1/B-2 temporary visitor visas.

Syria, North Korea: all immigrants and nonimmigrants.

Somalia: all immigrants.

Iran: all immigrants and nonimmigrants, except nonimmigrants seeking entry on
valid student (F and M) or exchange (J) visas.

Venezuela: officials of certain government agencies, and the immediate family
members of such officials, seeking entry on B-1, B-2, and B-1/B-2 temporary
visitor visas.

Sudan: no continuing restrictions.
September 25
Supreme Court cancels oral argument, which was previously scheduled for October 10,

2017, and orders parties to submit supplemental briefings on mootness issue in light of
the September 24 proclamation and the impending expiration of EO-2’s refugee
restrictions.
October 10
Supreme Court rules in Fourth Circuit case (No. 16-1436) that the challenge to EO-2’s
90-day entry bar provision is moot because it expired on September 24, and the Court
directs the Fourth Circuit to dismiss case as moot. Ninth Circuit case (No. 16-1540)
remains pending before Supreme Court.
October 17
A Hawaii federal district court issues a TRO (converted to a preliminary injunction three
days later) enjoining the implementation of the presidential proclamation’s entry
restrictions except with respect to nationals of North Korea and Venezuela.
October 17
A Maryland federal district court grants a preliminary injunction enjoining implementation
of the presidential proclamation’s entry restrictions except for nationals of North Korea
and Venezuela, and other aliens covered by the proclamation who have no credible claim
of a bona fide relationship with a person or entity in the United States.
October 23
Three executive agencies (the Department of State, the Department of Homeland
Security, and the Office of the Director of National Intelligence) send a memorandum to
the President recommending the resumption of refugee admissions, provided, however,
that two restrictions remain in place: (1) an additional 90-day pause on the admission of
refugees from eleven countries, which the memorandum does not identify, subject to
case-by-case waivers; and (2) a pause on the admission of “following-to-join” refugees
until the agencies implement new security measures to vet them.
October 24
Supreme Court rules in Ninth Circuit case (No. 16-1540) that the challenge to EO-2’s
90-day entry bar and 120-day refugee suspension provisions is moot because those
provisions expired on September 24 and October 24. The Court vacates the Ninth
Circuit decision and directs the Ninth Circuit to dismiss the case as moot.
October 24
Executive Order 13815, issued on the day that EO-2’s 120-day refugee suspension
expired, announces the resumption of the refugee admissions program under an
“improved” vetting process to include additional “special measures” for certain,
unidentified categories of refugees “whose entry continues to pose potential threats.”
The order does not describe the “special measures” other than to reference the
determinations made in the October 23 agency memorandum. Under the order, the
refugee admission process will be subject to periodic agency review.

Congressional Research Service
6
November 13
Pending resolution of the government’s appeal of the Hawaii district court injunction, the
Ninth Circuit issues a partial stay of the injunction to allow the government to apply the
presidential proclamation against nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen
who lack a bona fide relationship with a U.S. person or entity.
December 4
Supreme Court grants stay of injunctions issued by Hawaii and Maryland district courts
pending disposition of appeals in the Fourth and Ninth Circuits and ensuing review in the
Supreme Court, allowing the government to implement presidential proclamation in its
entirety.
December 22
Ninth Circuit holds that the presidential proclamation likely violates the Immigration and
Nationality Act (INA) and the Administrative Procedure Act (APA), and affirms the
Hawaii federal district court preliminary injunction against enforcement of the
proclamation with respect to any alien from Chad, Iran, Libya, Somalia, Syria, and Yemen
with a bona fide relationship with the United States. In light of the December 4 Supreme
Court order, however, the injunction remains stayed pending resolution of a likely appeal
to the Supreme Court, meaning that the government may continue to enforce the
proclamation in its entirety.
December 23
A Washington federal district court issues a nationwide preliminary injunction against
enforcement of the restrictions on refugee entry in the October 23 agency
memorandum, reasoning that the refugee restrictions likely violate the INA and APA.
The injunction only protects aliens with a bona fide relationship to a person or entity
within the United States.
January 19, 2018
The Supreme Court grants the government’s petition for review of the Ninth Circuit’s
December 22, 2017 order. Oral arguments are scheduled to take place on April 25. The
October 17, 2017 Maryland district court injunction remains before the Fourth Circuit,
and under the December 4, 2017 Supreme Court orders, the government may continue
enforcing the proclamation in full while litigation continues in the Supreme Court.
January 29, 2018
DHS issues a new announcement concerning “enhanced security procedures for
refugees” that introduces the following “new measures”: (1) “additional screening for
certain nationals of high-risk countries”; (2) “administering the [refugee program] in a
more risk-based manner”; and (3) “periodic review and update of the refugee high-risk
country list and selection criteria.” The announcement does not clarify whether it
terminates the restrictions established in the October 23, 2017 agency memorandum.
February 15, 2018
Fourth Circuit holds that the presidential proclamation likely violates the Establishment
Clause, affirming the Maryland federal district court injunction in almost all respects.
However, the injunction remains stayed pending resolution of a likely appeal to the
Supreme Court, meaning that the government may continue to enforce the proclamation
in its entirety.
April 10, 2018
President Trump issues a new presidential proclamation that terminates, effective April
13, 2018, the travel restrictions imposed on nationals of Chad under the September 24,
2017 proclamation.

Congressional Research Service
7

Author Information

Hillel R. Smith
Ben Harrington
Legislative Attorney
Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10017 · VERSION 10 · UPDATED