Trump “Travel Ban” Partially in Place After Supreme Court Rules

Trump “Travel Ban” Partially in Place After Supreme Court Rules

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Supreme Court Will Hear Trump Travel Ban Challenge

(Updated Sunday, July 1, 2018: The U.S. Supreme Court has upheld the final version of Trump’s “travel ban.” It’s potential impact on those wishing to enter the U.S. is discussed in this New York Times story.)

(Updated at 5:15 p.m., PDT, Sunday, April 22, 2018: On Wednesday, April 25, 2018, the U.S. Supreme Court will hear oral argument in the case that challenged the third iteration of the ban against entry to the U.S. by travelers. Presumably the Court will issue its final ruling in the case before its October 2018 term ends near the end of June. See this TravelWire News story and this one in the New York Times for more details on the upcoming hearing.)

In an unsigned order issued today, the U.S. Supreme Court agreed to review lower court rulings which had blocked enforcement of an executive order signed by Donald Trump in March that block entry into the U.S. by travelers from six predominantly-Muslim countries.

As The New York Times said in a story published today that reviews the Court’s action:

“Mr. Trump’s revised executive order, issued in March, limited travel from six mostly Muslim countries for 90 days and suspended the nation’s refugee program for 120 days. The time was needed, the order said, to address gaps in the government’s screening and vetting procedures.” (Trump signed a more sweeping travel ban on January 27, 2017.)

Injunctions Against Travel Ban Partially Stayed Pending High Court Review

More importantly, the Court stayed the injunctions issued by the lower courts that prevented the government from suspending travel to the U.S. by citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days, “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”

However, the Court left those injunctions in place with respect to persons, such as those who were involved in challenging the travel ban in the lower courses, and others who are “similarly situated.” The Court said the 90-ban travel ban “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.”

As to who might have such a relationship the Court said that:

 “For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member,like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the revised travel ban]. The students from the designated countries who have been admit-ted to the University of Hawaii have such a relationship with an American entity. So too would a worker whoaccepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid [the travel ban]: For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

Supreme Court Hearing and Decision Timeline

The government, apparently confident that the injunctions against the travel ban would be stayed by the Supreme Court, did not press the Court for any early hearing in the case.

As a result, the Court, which is about to begin its summer recess will not hear oral arguments until sometime after it begins its next session in October of 2017.

It is not unusual for the Court to put off announcing decisions in cases of significant national importance until the end of the term in which arguments were held. That could mean that a final ruling on the revised Trump travel ban might not be issued for another twelve months.

In the meantime, the 90-days suspension of travel to the U.S. by foreign nationals from the six countries in question who do not have a “credible claim of a bona fide relationship with a person or entity in the United States” will presumably remain in effect.

Which Justices Will Hear and Decide the Case?

Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, agreed that the lower court injunctions should have been stayed pending review of the case by the Supreme Court, but would have stayed the injunctions in their entirety and not permitted any citizen of the six nations to evade the 90-day entry ban.

Thomas, Alito and Gorsuch may ultimately vote to support the travel ban when the Court issues its decision. Although the Court’s order granting review is unsigned, since, it only takes four justices to grant review, so one presumes that those three were in favor of hearing the case.

A minimum of five justices most agree in order for the Court to issue a majority opinion. But who might join Thomas, Alito and Gorsuch in voting to uphold the travel ban?

If the speculation that Justice Anthony Kennedy may soon announce his retirement proves true, Donald Trump may well have an opportunity to appoint a new justice before the Supreme Court hears oral arguments.

However, in its story on the Court’s decision to review the travel ban, CNN said that it’s senior legal analyst, Jeffrey Toobin, “suggested how the court handled the case means Kennedy will stick around.”

If so, that new member of the Court would participate in the decision in the travel ban case and could join Thomas, Alito and Gorsuch in siding with the government.

And in any event, who might be the other two justices who would join that trio?

Over the next few months, Supreme Court pundits will no doubt offer many opinions on what action the Court will take.

How Will The Ban Affect Travel?

Finally, it is unclear at this point in time whether the Court’s decision to grant review in the travel ban case will have any measureable impact on visits to the U.S. by travelers from countries other than those covered by the ban.

However, CNN’s report said: “How officials implement the ban could cause chaos at airports, similar to what happened when Trump’s first travel ban executive order was written in January (it was later blocked).

How long the travel ban remains in force could be problematic for the Trump Administration.

The Washington Post pointed out that by the time the Court hears the case sometime next fall, the 90-day suspension period could have expired, something that would have happened on June 14th if Trump had not issue a memo extending the effective date of the travel ban until after the court injunctions against it had been lifted or stayed.

The newspaper quoted Leon Fresco, deputy assistant attorney general for the Office of Immigration Litigation in President Barack Obama’s Justice Department, as saying:

“If there is not an answer to the question [of whether the 90-day suspension period had already expired] on the first day of oral arguments about why this ban is still in place, that is going to make the court much more skeptical about the government’s reasons for having this ban.”

And in its commentary on the Supreme Court’s order, The Economist agreed that the travel ban could help expire before the Court reconvenes in October and that

“despite granting Mr Trump’s plea to hear his case and largely lifting the lower-court stays on the travel ban, Chief Justice John Roberts apparently worked out an ingenious compromise with his liberal brethren and the swing justice, Anthony Kennedy, that injects the Supreme Court only minimally into a big question on the scope of executive power in the Trump era. The chief justice has avoided making politically volatile judicial pronouncements on presidential immigration powers, anti-Muslim bias and the justiciability of tweets, and has positioned himself somewhere to the left of the court’s new conservative triumvirate.”

In a New York Times op-ed piece published the day after the Court’s action,

Who Gets in, Who Doesn’t?

(Updated, 9:00 a.m., PDT, June 29, 2017) The New York Times reports that the U.S. State Department has provided American embassies and consulates with new guidelines, effective at 8:00 p.m. EDT today, on who should or should not be granted a visa under the Trump travel ban that applies to six predominantly Muslim countries.

As reported above, the Supreme Court said that “For individuals, a close familial relationship is required” in order to avoid the travel ban. Today’s Times story indicates that the State Department has defined “close familial relationship,” noting that

“According to a diplomatic cable obtained by The New York Times, ‘close family’ is ‘defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships.’

“But it went on to state that ‘close family” does not include ‘grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, fiancés and any other “extended’ family members”.'”

The Times reported that in line with the Court’s ruling on what a visitor must show vis-a-vis a relationship with a U.S. entity, that a person accepting

“a job offer from a company in the United States or an invitation to deliver a lecture at an American university may enter, but that a nonprofit group may not seek out citizens of the affected countries and count them as clients for the purpose of getting around the ban.”

According to the newspaper, ordinary tourists from those six countries, who had no close relatives living in the U.S. or an invitation to work or speak in the country, would not be able to claim that a paid or unpaid hotel reservation establishes the type of “bona fide relationship” that the Supreme Court said would be required in order to be exempted from the 90-days suspension on travel to the U.S.

 The LawFare blog published in-full the State Department cable referred to in The New York Times story.

The cable states:

“The suspension of entry in the E.O. [Executive Order creating the travel ban] does not apply to individuals who are inside the United States on June 29, 2017, who have a valid visa on June 29, 2017, or who had a valid visa at 8:00 p.m. EDT January 29, 2017, even after their visas expire or they leave the United States.  The suspension of entry also does not apply to other categories of individuals, as detailed below.  No visas will be revoked based on the E.O., even if issued during the period in which Section 2(c) was enjoined by court order or during the 72-hour implementation period.  New applicants will be reviewed on a case-by-case basis, with consular officers taking into account the scope and exemption provisions in the E.O. and the applicant’s qualification for a discretionary waiver.”

The State Department guidelines also state that the 90-day suspension from entry to the U.S. does not apply to:

“a.) Any applicant who has a credible claim of a bona fide relationship with a person or entity in the United States.

b.) Any applicant who was in the United States on June 26, 2017;

c.) Any applicant who had a valid visa at 5:00 p.m. EST on January 27, 2017, the day E.O. 13769 was signed;

d.) Any applicant who had a valid visa on June 29, 2017;

e.) Any lawful permanent resident of the United States;

f.) Any applicant who is admitted to or paroled into the United States on or after June 26, 2017;

g.) Any applicant who has a document other than a visa, valid on June 29, 2017,  or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole;

h.) Any dual national of a country designated under the order when traveling on a passport issued by a non-designated country;

i.) Any applicant travelling on an A-1, A-2, NATO-1 through NATO-6 visa, C-2 for travel to the United Nations, C-3, G-1, G-2, G-3, or G-4 visa, or a diplomatic-type visa of any classification;

j.) Any applicant who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.”

In its reporting on the new State Department guidelines on visa issuance, CNN said “these guidelines have not yet been posted by the State Department or the Department of Homeland Security and could be subject to change.”

(Updated, 9:00 a.m., PDT, June 29, 2017) Reuters reported that the State of Hawaii has asked a federal judge in Honolulu to review the State Department guidelines to determine if the government was

“improperly excluding from the United States people who actually have a close family relationship to U.S. persons, echoing criticism from immigrant and refugee groups.

“Hawaii called the refusal to recognize grandparents and other relatives as an acceptable family relationship ‘a plain violation of the Supreme Court’s command.'”

Reuters also reported that

“Hawaii said in its court filing that it was ‘preposterous’ to not consider a formal link with a resettlement agency a qualifying relationship. Refugee resettlement agencies had expected that their formal links with would-be refugees would qualify as ‘bona fide.'”

The news service said that

“[a] spokesman for the Department of Homeland Security, who requested anonymity, said it would be updating its guidance to state that fiancés will not be barred from obtaining visas while the ban is in place.”

Today The New York Times reported that

“Critics immediately denounced the administration, accusing the White House of violating the Supreme Court’s directive to exempt anyone with a ‘bona fide’ family connection to the United States. Civil rights groups vowed to challenge what they said was a renewed attempt by Mr. Trump to keep Muslims out of the country.”

(Updated 5:15 p.m., PDT, Wednesday, July 19, 2017): In an unsigned order today, the U.S. Supreme Court allowed the Trump Administration to continue to block re-settlement of refugees into the U.S. pending a full hearing by the Court to be held sometime in its next session which begins in October.

But as the BBC and other news sources reported, the Court did not act to overturn a recent ruling by a federal district judge in Hawaii that

“grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, and siblings-in-law of those legally residing in the US are not covered by the current 90-day bar on the entry of people from from six Muslim-majority nations: Iran, Libya, Somalia, Sudan, Syria and Yemen.”

(Tales Told From The Road publisher, Dick Jordan, is a graduate of Hastings College of the Law in San Francisco. He practiced law for over thirty years before becoming a travel writer.)

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