Yesterday, the Supreme Court scheduled to hear arguments regarding President Trump’s travel ban in October, but has allowed the White House to reinstate portions of the ban until then. The arguments will center on Trump’s second executive order, which banned entry from Iran, Libya, Somalia, Sudan, Syria, and Yemen (and refused admission of any refugees for 120 days).
However, the Court set a limit on how the ban may be implemented: it cannot be applied to travelers and immigrants who have “a credible claim of a bona fide relationship with a person or entity in the United States.”
The White House has promised to implement the ban as early as Thursday this week.
Who Is or Isn’t Affected by the Travel Ban [Updated]?
Individuals with valid visas (both immigrant and otherwise) that were issued prior to June 26th will likely be able to enter the U.S., as they are not included in the travel ban’s scope. Per the Court’s limit on how the ban may be applied, people who have visas to visit or live with family members are also likely to be able to enter. The Supreme Court used spouses and mothers-in-law as examples of close family ties, but they didn’t specify how distant a relative could be and still qualify for protection from the ban.
The Court also provided other examples of “credible claim of a bona fide relationship”:
- Foreign students admitted to a university
- Employees who have accepted employment
- Lecturers invited to speak to an American audience
- Refugees with ties to U.S. relatives or other connections
The Court ruled that refugees with U.S. ties may not be excluded even if the 50,000 refugee cap is exceeded.
However, there are some parts of the decision that are left unclear:
What happens to travelers who form bona fide relationships after June 26? If the court’s decision is retrospective only, then any qualifying protection from relationships formed yesterday onward won’t apply. The only reason this would be the case is if the Court wanted to prevent immigrants from claiming connections solely to avoid being barred by the travel ban.
Also, it’s likely that tourists will be unable to enter the U.S. from the 6 listed nations.
The true battle here is between the implementation of the travel ban and the Muslim, immigrant, and refugee rights advocates who will be looking for every potential abuse/misuse of the ban. As long as there are thousands of informed eyes watching the Department of Homeland Security and the other agencies responsible for enforcing the ban, then overreach will be much harder to get away with.
One of the groups who will be watching the closest is the American Immigration Lawyers Association.
Annaluisa Padilla, AILA President, said, "We are encouraged that the Supreme Court will take up the case in October because the Muslim and refugee bans were based on discrimination, not national security threats, which undermines our Constitution. But we are concerned that allowing the government to block entry for certain travelers from these six countries will once again cause confusion at airports and other ports of entry.”
“Based on our experiences from earlier this year, I fully expect that we will see people with valid travel documents detained for hours and questioned as to whether they have certain relationships to people or institutions in the U.S. Visitors from the six countries and refugees who don't have such connections will be blocked. Not only will our economy feel the effects, our reputation in the world will suffer."
AILA Executive Director Benjamin Johnson agreed: "What the Supreme Court has done today is to limit the stay of the Muslim travel ban to those who do not have a credible claim to a bona fide relationship with a person or entity in the United States. This decision must be narrowly construed and properly implemented. Customs and Border Protection (CBP) and the State Department must establish clear guidance for officers and the public to understand exactly how the Supreme Court's narrow ruling will be interpreted.”
“We have real concern that CBP officers may implement this far more broadly than the court's ruling allows and our members and partners will be watching carefully to see what transpires. Vagueness and lack of consistency in our immigration laws benefit no one. AILA members and our partners stand ready to mobilize once again to defend the rights of individuals caught up in this terrible policy, which undermines both our country's foundational commitment to due process and our shared prosperity."
Our law firm will be among the lawyers and advocates who will be keeping a close eye on how this order is implemented—and will fight relentlessly to ensure that innocent travelers will have their rights protected under the fullest extent of the law.