Supreme Court allows travel ban

The US Supreme Court partially lifted preliminary injunctions that had blocked President Trump’s revised executive order suspending US entry by foreign nationals from six, rather than the previous seven, mostly Muslim countries. However, the Court carved out an exception for foreign nationals who have a “bona fide relationship” with a person or entity in the United States,” raising such questions as “What is a bona fide relationship?” and “What is an entity in the US?” that will likely be the subject of further court action.

Supreme Court allows travel ban

The US Supreme Court partially lifted preliminary injunctions that had blocked Executive Order No. 13780, signed by President Donald J. Trump in March 2017 (EO-2), banning travel to the US for citizens of six countries. The Supreme Court scheduled a full hearing of the case for October 2017.

“Bona fide relationship” exception

The Supreme Court found that the preliminary injunction shall remain in place and the travel ban will not impact foreign nationals who have a “bona fide relationship with a person or entity in the United States.” Further, refugees will continue to be allowed to enter the US, subject to the 50,000 person cap on refugee admissions, except that the cap cannot be used as a means to bar an individual with a bona fide relationship with the US.

The Supreme Court defined “bona fide relationship” as either (with respect to individuals) “a close familial relationship” or (with respect to entities), a relationship that is “formal, documented, and formed in the ordinary course.” What constitutes a sufficiently close familial relationship is likely to be the subject of further court action.

As for what constitutes a sufficiently established relationship with an entity, the Supreme Court provided three examples:

• Students admitted to attend university in the US
• Workers who have accepted an offer of employment from a US company
• Lecturers invited to the US for a speaking engagement

The travel ban will apply to individuals whose relationship with an entity was formed to purposefully circumvent the ban.

It is worth noting that EO-2 in its original form applies only to the new issuance of visas, and not the US entry of individuals who have already been issued visas, green cards or asylum/refugee status.

Also, there is a chance that the Supreme Court will not have to hear the case in its entirety in October. If EO-2 goes into effect as scheduled by the Trump administration, the 90 day temporary ban will conclude at the end of September, several days before the Supreme Court begins its term. This would, then, remove any controversy over the legality of that piece of the order.

Citizens from these countries impacted

Citizens from the following countries are detrimentally impacted:

• Iran
• Libya
• Somalia
• Sudan
• Syria
• Yemen

EO-2 does not apply to citizens of other countries who merely visited the listed countries. Further, it does not apply to citizens of these six countries who are dual citizens and use the passport of a non-affected country to apply for a visa and enter the US.

When does the ban start?

In a June 14 memorandum, President Trump directed the Department of Homeland Security (DHS), the Department of State and other relevant agencies to wait 72 hours from the release of the Supreme Court decision before banning refugees and travelers from the six affected countries to “ensure an orderly and proper implementation” of the changes.

Background

During his first six months in office, President Trump signed two travel ban executive orders. The first, Executive Order 13797 (EO-1), issued on January 27, 2017, took a number of steps, including:

• Suspending for 90 days the entry of foreign nationals from seven mostly Muslim countries identified as presenting heightened concerns about terrorism and travel in the US [1]
• Suspending for 120 days the United States Refugee Admissions Program (USRAP), during which an adequacy review is to be undertaken
• Reducing to 50,000 per year the total number of refugees that could be admitted to the United States, starting in fiscal year 2017
• Suspending indefinitely admission of refugees from Syria

EO-1 was quickly blocked  by the US District Court for the Western District of Washington, which issued a nationwide temporary restraining order. The US Court of Appeals for the Ninth Circuit denied an emergency motion by the US government to stay the district court order pending appeal. In response, the government rescinded EO-1 and went back to the drawing board.

On March 6, 2017, President Trump signed EO-2, which closely mirrored the directives in EO-1, but was intended to correct some its perceived errors, including:

• Reducing the reach of the 90-day temporary suspension of entry to foreign nationals from six (rather than seven) mostly Muslim countries, with Iraq no longer included [2] and with a case-by-case waiver of the entry bar.
• Directing the Secretary of DHS to undertake a 20-day global review of whether foreign governments provide sufficient information about nationals applying for visas.

EO-2 was immediately challenged in court, which challenges led to prompt nationwide preliminary injunctions by the US District Court for the District of Maryland and (as stated above) the Western District of Washington, which were then appealed to the US Courts of Appeal for the Fourth and Ninth Circuits, respectively.

The Fourth Circuit concluded that the EO-2 ban on entry from the six named countries was primarily motivated by religious considerations and, as such, violated the First Amendment. In that case, the preliminary injunction only applied to the suspension of entry of foreign nationals from particular countries. The 120-day ban on USRAP and the quota on total refugee immigration would still be in force.

The Ninth Circuit, meanwhile, found that EO-2 exceeded the president’s authority under the Immigration and Nationality Act (INA) and, on that basis, upheld the injunction with regard to the entirety of EO-2.

The federal government appealed both decision to the Supreme Court, certiorari was granted, and the two cases were consolidated and oral argument scheduled for October Term 2017. The Supreme Court, meanwhile, heard the government’s application to stay the aforementioned injunctions.

Dentons will continue to issue further information as it becomes available.

[1] Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

[2] Iran, Libya, Somalia, Sudan, Syria and Yemen