On June 26, 2017, the Supreme Court decided to hear the Travel Ban cases when the Court reconvenes this fall. In the meantime, the Court will allow the administration to implement parts of President Trump’s second executive order, which bans the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen from the United States and suspends the admission of all refugees for 120 days.
The Court ruled that the government can only enforce the travel ban against foreign nationals who do not have “a credible claim of a bona fide relationship with a person or entity in the United States.”
A demonstrator holds a placard during a march against U.S. President Donald Trump and his temporary ban on refugees and nationals from seven Muslim-majority countries from entering the United States, in London, Britain, February 4, 2017. Photo by Neil Hall/Reuters
The controversial travel ban has been the subject of litigation in federal courts in both Maryland and Hawaii. The lower courts had imposed a stay on the travel ban, effectively halting its implementation. This recent decision from SCOTUS has allowed parts of the ban originally imposed in March to take effect immediately. The justices narrowed the scope of lower court rulings that had completely blocked key parts of the ban that Trump had said was needed to prevent terrorism attacks.
There is no doubt this standard will create confusion and that, despite the narrowness of the Court’s decision, the administration will attempt to go further than permitted by the Court. However, the American Immigration Council (AIC) has stated that it, along with attorneys and advocates around the nation, will carefully monitor the implementation and prepare to respond to any government overreach.
The AIC has just posted an explainer of who is and isn’t likely impacted by the Supreme Court’s decision this morning. Please read and share.
It is important to note that the Supreme Court has not reinstated the original travel ban in totality, rather it has simply narrowed the stays that remain in effect due to prior lower court decisions. Green card holders from the 6 Muslim countries are not affected.
The White House argues that this executive order, like the previous version the president signed in January, is necessary to protect national security. The initial version caused chaos at airports across the country until it was blocked by a federal judge in Washington, prompting the administration to craft a revised version that omitted references to religion and specifically exempted green card holders. But that order, too, was challenged by lawsuits, and was blocked by lower courts before it ever went into effect.
The recent decision will enforce the travel ban against those who do not have any “bona-fide” relationship with either a person or an entity in the United States. This means potential travelers will need to be able to prove they have a bona fide reason for being allowed into the country which could be family connections, job commitments or educational reasons. Lack of such evidence will make successful visa applications nearly impossible.
This is not as harsh as the President’s original executive order, which would have blocked any new visas for 90 days for all travelers from 6 countries with a Muslim majority population, while at the same time suspending the U.S. refugee program for 120 days. Those who originally challenged this decision believed that such a ban would have a negative impact on anyone who has good reason to be in the United States, which includes those with work commitments, family ties, and courses of study.
The current situation for refugees
Refugees are to face a similar ban, which means anyone applying for refugee status will be denied entry into the United States unless they have suitable connections in the country which fall into the same categories as a traveler. This ban is in force for 120 days.
Who is happy with this change and who is not?
President Trump sees the ruling by the Supreme Court as a win on his part. He sees his role as Commander in Chief of the country is to ensure that America is safe from those who may want to do it harm. Some Justices in the Supreme Court supported his controversial and much opposed original March ban.
Justice Clarence Thomas agreed with the Supreme Court’s decision, and wrote a three-page opinion stating that the stay should have been fully granted, and noting that officials who are delegated the responsibility to decide who has a genuine “bona fide relationship” with either a person or organization in the country will have a difficult decision to make.
However, the American Civil Liberty Union’s Immigrants’ Rights Project director, Omar Jadwat, considers the travel ban unconstitutional. The Court of Appeals for the Fourth Circuit looked at the travel ban to see if it contradicted the Constitution by using religion as a way to discriminate. The challengers were led by the International Refugee Assistance Project which is a nonprofit organization.
The Supreme Court will look at other elements of the original travel ban and whether they are unconstitutional as early as October this year. This could affect travel arrangements for at least some of those who have been exempted from the ban by the recent decision by the Supreme Court.
As a practical matter, there is little – if anything – the 6 countries can do with regards to providing background information that will satisfy this administration.
For non-immigrant visas, the current scheme will prove problematic since substantial family ties in the U.S. can sometimes be viewed as a risk factor by counselor officials. This can be a factor in denying those visa applications.
It is likely that the travel ban will expand, either officially or unofficially, to other predominantly Muslim countries.
It must be noted that the ban is temporary for 90 days until a more permanent regulation is set up. It also appears that there would be more litigation to come and an array of policies that will complicate things further after the 90 days pass. Forcing those nations to set a system to confirm for U.S. consulates the identity of visa applicants and provide background checks.
Some of the countries subject to the travel ban might be forced to issue travel documents and accept their citizens with deportation orders before a visa can be issued. It is unlikely that those countries, including Iran, will change course to comply with these policies anytime soon, further causing delays in visas.
The partial stay will impact people in our community and around the world. Here are some resources that have been developed/updated in the last 24 hours (the first 2 by Muslim Advocates and Penn State Law’s Center for Immigrants’ Rights Clinic), and could be shared with individuals who have questions about the impact of the ruling on travel. Any person from the six designated countries should consult with an immigration attorney before travel.
Post-Election Immigration Page: As a reminder, Penn State Law’s Center for Immigrants’ Rights hosts a page that is updated regularly and includes accurate but easy-to-digest summaries and fact sheets about each of the Executive Orders and other immigration policies post-election. It also includes Powerpoints from many of its presentations to varied audiences including but not limited to Postdocs, graduate students, the school district, and the municipality.