On Monday June 26th, the Supreme Court weighed in on Executive Order 13780, better known as the travel ban. While a full hearing is scheduled when the court reconvenes in October, a partial implementation of the ban has been sanctioned for the interim. This decision goes against several lower court rulings that prevented the ban’s execution.
However, the Supreme Court’s ruling came with a stipulation: “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States” could not be denied entry.
At this time, the current administration has defined a ‘bona fide relationship’ in these terms:
- An individual with a:
- parent or parent in-law
- spouse or fiancée
- adult son or daughter (in-law)
- sibling (whole or half)
- aunt or uncle
- niece or nephew
- cousin Updated 7.14.17 – see below
in the United States. Step relations are also included.
- An individual with connections to educational or business organizations in the U.S.
On Wednesday, June 28th, the administration communicated its new restrictions and corresponding criteria to global diplomatic posts. The partial travel ban went into effect the next evening, Thursday June 29th.
Six countries are singled out by the travel ban: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Citizens of these nations will be held to the constraints of the ‘bona fide relationship’ stipulation. Visitors seeking travel visas who do not meet the qualifications will be subject to a 90-day ban.
The travel ban impacts these nations’ refugees as well, with a 120-day ban for those who do not meet requirements. In addition, the administration has declared that refugee resettlement organizations do not meet the criteria of bona fide entity relationship. The decision is rooted in an interpretation of the court’s specification that entity relationships must be “formal, documented, and formed in the ordinary course, rather than for the purpose of evading Executive Order 13780”.
In addition to those with a bona fide relationship to the U.S, individuals who meet one of the following criteria are also exempt:
- Full U.S and U.S dual national citizens
- Legal permanent residents, AKA green card holders
- Individuals granted asylum
- Diplomats and their family members traveling with A-1 or A-2 visas
- NATO officials and their family members traveling with North Atlantic Treaty Organization visas
- International representatives traveling on G-1, G-2, G-3, or G-4 visas
- United Nations travelers
- Individuals traveling to the United Nations with C-2 visas
- UN officials traveling with C-3 visas
- Current visa holders
- Visa applicants within the U.S as of June 26th
- Refugees previously admitted into the U.S
- Refugees cleared by the State Department through July 6th
Individuals who have already received approval for a new visa will not have approval revoked. In addition, previously scheduled appointments for visa applications will be honored.
Visitors and refugees who do not meet current requirements, but have a strong case for exemption, may be granted admission. The Department of Homeland Security (DHS) and the State Department will review such cases on an individual basis.
With the partial travel ban in place, the administration can begin the work the executive order was meant to enable: a thorough review of vetting procedures.
Twenty days after the travel ban’s implementation, DHS Secretary John Kelly will submit a report to the President. This report will outline the information foreign countries need to provide in order for the U.S to approve entry applications. In addition, the DHS Secretary will provide a list of countries that do not currently provide such information.
Once submitted to the President, countries on the second list will be given fifty days to provide the necessary information. Countries that do not comply may be subject to travel restrictions. After this point, the administration may choose to revise or revoke the current travel ban.
The six nations currently singled out by the travel ban were selected due to the ‘heightened threat,’ the countries posed. Executive Order 13780 asserts that “each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones”. Despite the heightened threat these nations pose, no visitor or refugee from any of the six nations has been arrested in connection to terrorist attacks in the U.S. The vetting procedure review will help determine what information the banned nations need to provide in order to assure their citizen’s admission.
Contestation to Partial Travel Ban Implementation
The same day it was implemented, the revised travel ban received a challenge in court. The state of Hawaii filed a motion to a federal judge, requesting that the government revoke ban enforcement.
Lawyers for the state have requested clarification on what constitutes a bona fide relationship; they argue that individuals with a grandparent, grandchild, brother or sister-in-law, aunt, uncle, niece, nephew or cousin in the U.S should not be barred. In addition, they argue that refugees with a documented agreement, local sponsor, and a place to live should not be denied entry.
Immigration law experts and human rights organizations anticipate more legal challenges due to the administration’s interpretation of the ruling. How these challenges will impact the current implementation is uncertain, as the Supreme Court will not reconvene on the issue until October.
7.13 UPDATE: On Thursday, July 13th, a federal judge in Hawaii ruled against the administration’s definition of bona fide relationships.
U.S District Judge Derrick Watson determined that grandparents, grandchildren, aunts, uncles, nieces, nephews, and cousins should be considered close family, and thus bona fide relations. Watson also overturned the administration’s ruling on refugee resettlement organizations, asserting that such organizational ties meet the Supreme Court’s standards. The federal judge noted that assurances from resettlement organizations are formal, documented agreements granted only when individuals received DHS approval.
Attorney General Jeffrey Sessions, upon hearing Judge Watson’s ruling, has promised to appeal Watson’s decision to the Supreme Court.
7.19 UPDATE: Supreme Court upholds administration’s ruling on refugees
The Supreme Court issued a two-part short order in response to the administration’s motion for clarification. In it, the Justices upheld District Judge Derrick Watson’s ruling expanding bona fide familial relationships. However, the Justices also upheld the administration’s original decision to prohibit refugee admission based on assurances from resettlement organizations.
With a six-justice majority, the Supreme Court has ruled that the administrations appeal proceed through the lower courts. As a result, the U.S Court of Appeals for the 9th Circuit will hear the appeal.