UPDATE: Supreme Court Upholds Portion of Trump's "Travel Ban"

June 26, 2017

Earlier this morning, on June 26, 2017, the U.S. Supreme Court granted the Trump Administration’s request for review (certiorari) of the 4th Circuit and 9th Circuit Court of Appeals decisions which upheld injunctions on certain provisions of the Administration’s "Travel Ban" Executive Order. The Executive Order bars entry of certain foreign nationals from six designated predominately Muslim countries – Iran, Libya, Somalia, Sudan, Syria and Yemen –  for 90 days. Until the Court considers the merits of the case, which will take place during its next term in October, it has stayed a portion of the lower courts’ temporary injunctions. This means that the Court has in effect resurrected a modified version of the Travel Ban for a new 90-day period, starting 72 hours from the time of the Court’s decision. The Court-modified version of the 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.” The per curiam decision provided specific examples of persons to whom the Ban would not apply:

  • A person coming to live with or visit a family member

  • A student admitted to an American University

  • A foreign worker who accepted an offer of employment from an American company

  • A lecturer invited to address an American audience

The Court cautioned that a U.S. entity may not create a relationship for the purpose of evading the Travel Ban, using the example of an immigrants rights organization claiming a relationship with foreign nationals.
 
Although it is unclear at this stage how the Department of State and Department of Homeland Security will implement the Supreme Court’s partial Travel Ban, temporary visitors who are citizens of one of the six designated countries are advised to bring clear documentation showing a bona fide relationship with a U.S. person or entity when applying for a visa or admission to the United States. For persons employed by a U.S. employer, this documentation should include an employment verification letter and pay records. Note that the Travel Ban restriction only applies to temporary visitors who are from one of the designated countries. It does not apply to United States permanent residents from those countries.
 
While the Supreme Court has agreed to review the lower courts’ injunction, it may never actually decide the merits of the court of appeals decisions. The plaintiffs in the 4th Circuit case argued that the Supreme Court should not grant certiorari because the 90-day period of the Travel Ban had already been reached on June 14th, and the issues were therefore already moot. In order to avoid the mootness issue, the Trump Administration issued a memorandum on June 14, 2017 stating that the Executive Order would take effect for a new 90-day period,  72 hours after the injunction is stayed. Citing this memorandum, the Court granted certiorari and stated that it would deal with the mootness issue when it decides the case on its merits during its next term in October. Because the new 90-day period will likely have run by that point, the mootness issue, will likely be moot at that point.  
 
The Court also resurrected the refugee ban for a new 120 days, with the same modification as applies to the Travel Ban. Only refugees with bona fide relationships to American persons or entities will be admitted to the U.S. during the 120-day ban period. The Court’s modification is unlikely to help most refugees, who would not normally have pre-established relationships in the United States.   

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