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March 17, 2017

U.S. District Court In Hawaii Issues TRO to Block Second Travel Ban the Day Before it is Set to Take Effect

On March 15th, the day before President Trump's second travel ban was set to take effect, a U.S. District Judge in Hawaii issued a temporary restraining order to block its implementation. Judge Derrick K. Watson found that the purpose of the ban was meant to discriminate against Muslims and that there was a "strong likelihood of success" that the plaintiffs would ultimately be able to prove a Constitutional violation.

The action in Hawaii was filed on the heels of the issuance of the Executive Order entitled "Protecting the Nation from Foreign Terrorist Entry to the United States", that was signed on March 6th and intended to take effect on March 16th. Although more narrow in scope than the first travel ban that had been issued on January 27, 2017, this was the second Executive Order that temporarily suspended travel to the United States for certain individuals for a period of 90 days.

As background, the January 27th ban had been challenged in the courts and was temporarily blocked by a restraining order issued by a federal judge in the state of Washington. That decision subsequently was affirmed by the 9th Circuit Court of Appeals. Rather than challenge the 9th Circuit ruling, the Administration chose to issue a revised Executive Order on travel. The revised Executive Order applied to certain individuals who were outside the United States and did not possess valid U.S. visas. This time, the Executive Order focused on individuals from a list of six designated countries - Sudan, Syria, Iran, Libya, Somalia and Yemen – and again temporarily suspended the Refugee Admissions Program.

The Hawaii lawsuit cited the circumstances of Dr. Ismail Elshikh, an Imam of the Muslim Association of Hawaii, whose mother-in-law, a citizen of Syria, currently is an applicant for an immigrant visa. The lawsuit stated that Dr. Elshikh had standing to challenge the new ban because he was afraid his mother-in-law's application would be denied based on her religious faith. The lawsuit alleged that implementation of the ban not only would harm Dr. Elshikh and members of his immediate family, but that it also would hurt Hawaii's tourism industry overall, as well as the university system that recruits foreign students and faculty from around the world.

Following the ruling, the Department of Justice issued a statement indicating that it "strongly disagrees" with the decision and that it will defend the second Executive Order in the courts. The statement went on to state that the Executive Order "falls squarely within [the President's] lawful authority in seeking to protect our Nation's security."

Since the ruling in Hawaii was related only to a request for a temporary restraining order, the battle is far from over. The Department of Justice may now appeal the ruling to a higher court, which would land in the 9th Circuit, the same Court that affirmed the restraining order issued on the first travel ban. Depending on the outcome of an appeal, the case may head to the Supreme Court of the United States.

If you have any questions with respect to the information in this alert, please contact Jill Apa at (716) 844-7070 or or our Immigration Practice Area Chair Eileen Martin at (716) 566-1421 or


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