On Thursday, February 9th, a three judge panel of the Ninth Circuit Court of Appeals denied the U.S. Department of Justice’s (DOJ) emergency motion for a stay in a case that suspended implementation of a number of sections of Executive Order (EO)13769 issued by President Donald Trump restricting entrance to the United States for foreign nationals from seven designated countries and certain refugees. State of Washington, et al. v. Donald J. Trump, et al., No. 17-35105 (9th Cir., February 9, 2017). As a result of this decision, foreign nationals can continue to apply for admission to the United States and eligibility for entry is not restricted by country of nationality.

The Court took on the case after a district court determined that significant and ongoing harm was being inflicted on substantial numbers of people by the Executive Order. The district court enjoined and restrained the nationwide enforcement of several sections of the Executive Order. The Appeals Court considered several factors, including whether the Government had shown that it would succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. The Court assessed the case in light of the limited evidence put forward by both parties in the preliminary stage and at the same time the Court was thoughtful of the hardships and public interest in this case. The Appeals Court held that the Government did not show a likelihood of success on the merits of its appeal, nor did it show that failure to enter a stay would cause irreparable injury. The Court denied the emergency motion for a stay.

President Trump will issue a revised Executive Order on refugees next week that addresses the issues posed by the Ninth Circuit’s decision.  The revised EO will possibly exempt lawful permanent residents and previously admitted nonimmigrant visa-holders, such as students. The government filed a brief with the Ninth Circuit asking for a stay of proceedings in that court pending issuance of the revised EO.  The Ninth Circuit granted that request.