Supreme Court Definition of “Bona-Fide” Causing Confusion

The Trump administration’s travel ban affecting citizens of six majority Muslim countries and refugees from anywhere has been allowed to go ahead in revised form, at least temporarily, by the U.S. Supreme Court, but the decision has not only caused confusion but has also provoked unrest, protests, and court actions, albeit in more muted form compared to what happened when the original travel ban was first announced. The Supreme Court is expected to hear oral arguments on the travel ban this fall.

The original ban affected all citizens from Iran, Libya, Somalia, Syria, Sudan and Yemen for 90 days and all refugees from anywhere for 120 days. The new temporary revised ban which went into effect at the end of June allows only citizens from these six countries and refugees who have a genuine “bona-fide” relationship with an American citizen or entity to enter the United States.

The problem is that the definition of the term “bona-fide” is unclear. The lack of clarity is already causing distress and confusion.

The “bona-fide” definition currently includes “close relatives” of U.S. residents or citizens, those who already have a job lined up, or those who will enroll in a course of study at a college or university. Refugees who arrived in the United States before July 6th were allowed to enter the country. Both definitions leave a lot to be desired.

Government officials contend that the definition of “close relatives” comes from the 1965 Immigration and Nationality Act. Opponents of the ban argue that the administration’s new definition of “bona-fide” relationships does not seem to be in step with the Act. Parents-in-law, for example, were not regarded as “close relatives” under the Act, but they are considered as “close relatives” under the travel ban. However, fiancés and fiancées are “close relatives” under both the Act and the travel ban.

Commentators say that the lack of clarity means that there is likely to be chaos again at the airports when travelers, immigrants and refugees arrive, as border agencies will be struggling to interpret the rules as they stand.

The new version of the ban states that siblings, parents, children, sons and daughters in law, parents in law, fiancés, and fiancées of legal U.S. residents and citizens will be allowed to enter the United States. Grandparents, grandchildren, brothers or sisters-in-law, cousins, aunts, uncles, nephews and nieces will not be considered “close relatives.”

Lawyers for Hawaii challenged the government’s definition of “close relatives” by asking a federal district court judge to clarify the Supreme Court ruling. The judge, however, declined to do so, stating that such clarifications should be obtained from the Supreme Court.

As for the refugees, there is doubt about the fate of those refugees who have already been accepted for travel to the U.S., but who could not meet the July 6th deadline.

According to the Trump administration, any citizen of one of the six affected countries or refugee is encouraged to contact consular officials in the country of origin. These consular officials will be given the authority to make decisions about the validity of entry, notwithstanding the ban, on a case by case basis.

EXPERTS IN IMMIGRATION LAW