On 26th June 2017, the Supreme Court of the United States (SCOTUS) partially lifted the injunction and agreed to hear arguments on President Trump’s 6th March 2017 executive order (EO) entitled Protecting the Nation from Foreign Terrorist Entry into the United States.
While the Supreme Court announced that it will hear the full case in October, in the meantime, it issued a limited order (or decision) which will allow the Administration to ban those nationals from six predominantly Muslim countries (Iran Libya, Somalia, Sudan, Syria, and Yemen) and refugees, who cannot show “a credible claim to a bona fide relationship with a person or entity in the United States.”
The Department of Homeland Security (DHS) issued a statement concerning its intention to provide “clear and sufficient public notice … to affected travelers and … partners in the travel industry”.
It is possible that many travelers will face delays at consulates and/or airports due to increased questioning about their ties to the United States, as government officials seek to determine whether their ties to family, employers and/or other institutions are sufficiently close to allow them to obtain visas or admission to the United States.
The actual impact of the Court’s ruling may be quite small as most individuals who seek admission to the United States will be able to demonstrate either a “close familial relationship” or a connection with a U.S. entity (e.g., employer or other institution) that is “formal, documented, and formed in the ordinary course” rather than one made merely to evade the travel ban.
For example, individuals who seek reunification with close family will not be banned. Nor will those who are sponsored by U.S. employers, accepted for admission to U.S. schools, or otherwise invited by U.S. institutions. The same requirements will apply to refugees. Thus, only those individuals who lack such a close connection will feel the impact of the travel ban and be prevented from entering the United States, at least until the “travel ban” case is decided on the merits.
The EO prohibits the issuance of visas and admission to the United States for 90 days of nationals from six predominantly Muslim countries: Iran Libya, Somalia, Sudan, Syria, and Yemen. It also halts the entry of refugees from around the world.
The “travel ban” case came to the Supreme Court from two lower federal court rulings (International Refugee Assistance Project v. Trump, and Hawaii v. Trump) which had effectively stopped the Administration from implementing its travel ban while waiting for the lower courts to hear the law suits brought by individuals and the State of Hawaii.
Those cases asked the courts to address the question of whether the travel ban violates the U.S. constitution’s First Amendment in that the ban is based primarily on an impermissible religious ground (expressly banning those from predominantly Muslim countries) rather than the Administration’s claim that the ban is intended to protect national security.
The lower courts both issued injunctions against the Administration’s implementation of the ban until the courts could hear the cases in full and make decisions. The Administration then sought review before the Supreme Court, asking the Supreme Court to lift these injunctions and to allow the government to ban these individuals now, rather than awaiting lower court decisions on the merits of the cases, a process that would have surely taken many months.
- Nationals of the six affected countries who intend to apply for visas at US consulates and/or who intend to travel to the US should be prepared to provide evidence of their existing relationships to US citizens, employers or other institutions;
- Those affected are advised to consult with an immigration attorney prior to any travel.
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