On June 26, the U.S. Supreme Court granted certiorari and consolidated two key cases in the travel and refugee ban litigation: Trump v. IRAP and Trump v. Hawaii. The case will be heard during the first session of the October 2017 term.
In addition to granting certiorari, the Supreme Court granted a partial stay of the injunctions that had been preventing implementation of the travel ban [Section 2(c)], the refugee ban [Section 6(a)], and the refugee cap [Section 6(b)].
It likely will not be clear until the case is heard by the Court in October when the government’s self-imposed time frame for reviewing the vetting procedures began, expired or was arguably tolled.
The Court ruled as follows:
- Travel and Refugee Ban: The Court left in place the injunctions with respect to the plaintiffs in both cases and others in similar situations. It explained that, “[i]n practical terms, this means that [the travel and refugee bans] 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.” (emphasis added). However, all other foreign nationals are subject to the EO.
- Refugee Cap: The Court held that a refugee with a credible claim of a bona fide relationship with a U.S. person or entity may not be excluded, even if the 50,000 cap on refugees has been reached or exceeded.
-Bona Fide Relationship with a Person in the United States: The Court noted that the facts of the cases at hand illustrate the type of relationships that would qualify as bona fide, stating, “For individuals, a close familial relationship is required.” The Court stated that an individual who seeks to enter the United States to live with or visit a family member, such as a spouse or mother- in-law, “clearly has such a relationship.”
-Bona Fide Relationship with an Entity in the United States: With regard to entities, the Court stated, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” The Court specifically stated that students who have been admitted to a U.S. university, a worker who has accepted an offer of employment from a U.S. company, or a lecturer invited to address a U.S. audience would have such a relationship. The Court stated that a relationship with a U.S. entity or individual that was entered into for the purpose of avoiding the travel ban will not be recognized as bona fide.
It appears the government will implement the permitted parts of the ban within 72 hours of the Court ruling.
DHS states that implementation “will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”
On Wednesday, June 28, a cable from the Department of State was issued to embassies and consulates providing guidance in response to the Supreme Court decision. The following individuals will be excluded from the travel ban:
- U.S. citizens
- Green card holders (LPRs)
- Current visa holders
- Any visa applicant who was in the U.S. as of June 26
- Dual nationals
- Anyone granted asylum
- Any refugee already admitted to the U.S
- Foreign nationals with a “bona fide” family, educational, or employment/business tie to the U.S. What qualifies as a “bona fide” familial relationship:
- Adult son or daughter
- Son-in-law, daughter-in-law
***The cable indicates the following relationships do NOT constitute a “bona fide” familial relationship: grandparent, fiancée, grandchild, aunt, uncle, niece, nephew, cousin, brother-inlaw/sister-in-law, or other “extended family.”
*The same criteria apply to refugees awaiting approval for admission
*Visas that have already been approved will not be revoked (it has been confirmed the EO will not affect persons who arrive at ports of entry with legitimate travel documents)
*The EO also permits the issuance of a visa to anyone who would otherwise be excluded on a case-by-case basis at the discretion of DHS and Dept. of State.