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DOJ asks SCOTUS to consider travel ban

As we mentioned last week, the revised executive order signed by President Donald Trump, which would prohibit individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the U.S. for 90 days over national security concerns, was handed its most recent defeat two weeks ago by the Richmond-based U.S. Court of Appeals for the Fourth Circuit.

In a 10-3 decision, the majority ruled that the aforementioned national security justification for what has become known as the "travel ban" was merely a pretext for religious discrimination and a thinly veiled attempt to fulfill pledges made during the course of the presidential campaign.   

Specifically, the harshly worded opinion indicated that executive order "speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination."

In recent developments, the Department of Justice filed a petition for a writ of certiorari last Thursday, meaning it has now formally petitioned the Supreme Court of the United States to hear oral arguments and decide the matter.

Specifically, the DOJ is asking the nation's high court to reverse not just the ruling of the Fourth Circuit, which covers only the entry program, but also the ruling of a federal district court judge in Hawaii, who issued a broader injunction covering both the entry program and the proposed 120-day stop to the refugee program. (This latter case was appealed to the U.S. Court of Appeals for the Ninth Circuit, which has heard oral arguments, but has yet to make a ruling).

"[SCOTUS] has never invalidated religion-neutral government action based on speculation about officials' subjective motivations drawn from campaign-trail statements by a political candidate," reads the Justice Department's memo in part.

Experts indicate that the timing of the filing could present complications. That's because the process of bringing a case before SCOTUS takes months -- including filings, oral arguments, time for the nine justices to decide, etc. -- and the current session is slated to end in just a few weeks.

Indeed, in the event the court even elected to stay one or both of the injunctions, meaning permitting one or both travel bans to proceed, there's a considerable likelihood that their respective 90- and 120-day periods would expire before it reconvenes in the fall.  

It remains to be seen what will transpire. Thus far, SCOTUS has informed challengers that they have until next Monday to file responses to the DOJ's petition for cert.

Stay tuned for updates …

If you have questions or concerns relating to any aspect of U.S. immigration law, consider speaking with an experienced legal professional who can answer your questions and pursue solutions.

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