Updated June 27, 11:04: On Monday, the Supreme Court announced that it would rule on the lawfulness of President Donald Trump’s executive order that instituted a de facto travel ban. In the meantime, it will let portions of the order go into effect. The New York Times quoted the ruling, writing:
“We grant the government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement of” Mr. Trump’s executive order, the ruling said, “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”
The justices said the distinction should be easy to administer. “In practical terms, this means that” the executive order “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
Justice Clarence Thomas disagreed, writing:
“I fear that the court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding—on peril of contempt—whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country.
The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a ‘bona fide relationship,’ who precisely has a ‘credible claim’ to that relationship, and whether the claimed relationship was formed ‘simply to avoid.’”
In some cases, those relationships will be obvious—foreign nationals with family, work or school in the United States—but in other cases, the question could be thornier. Vox.com’s Dara Lind and Tara Golshan wondered how it would apply to refugees.
Refugees don’t already have jobs before they’re allowed to settle in the US, and many of them don’t already have close family here. However, they do have a relationship with a US-based organization: US-based “refugee resettlement agencies” are responsible for settling refugees in the United States, and every refugee entering the US has already been placed with an agency.
The Supreme Court didn’t clarify whether simply being a client of a resettlement agency counts as a “bona fide” relationship. The organizations that have fought the ban are arguing it does. But it’s not clear whether the Trump administration will agree.
What constitutes a "bona fide" relationship will clearly be the question going forward. At this point, we know that individuals from the six affected countries who currently hold a valid, unexpired visa may use it to travel to the United States. Lawful Permanent Residents, individuals who have been granted asylum, those already admitted as refugees, individuals traveling on advance parole, and those granted withholding of removal and/or protection under the Convention Against Torture will not be affected either. Individuals traveling on diplomatic and related visas [NATO, C-2, G-1, G-2, G-3, or G-4] and dual nationals traveling on a passport issued by a non-designated country will also be excluded from the ban.
Aaron Reichlin-Melnick summarized who will and won't be affected at ImmigrationImpact.com:
Who is likely to be allowed to enter the United States?
- Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017.
These individuals are not included in the travel ban.
Individuals with visas coming to live or visit with family members.
The Court’s order is clear that individuals who “wish [] to enter the United States to live with or visit a family member” have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
- Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience.
The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
- Other types of business travelers.
It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
- Refugees.
Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies. The Court ruled that such individuals may not be excluded even if the 50,000 cap on refugees has been reached or exceeded.
Who may have trouble entering the United States?
-Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017.
The Court’s decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.
- Tourists.
- Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering.
Monday's decision to allow partial implementation of the travel ban was unanimous, though Thomas, Neil Gorsuch, and Samuel Alito argued that the ban should have been allowed in all cases. It will take place some time this summer.
The ruling was not on the constitutionality of the ban. That question will be taken up when the Supreme Court hears the case in the fall.
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