On June 26, 2017, the Supreme Court of the United States (the “Supreme Court”) issued an order (the “Order”) granting certiorari to hear the Administration’s appeal of several lower court injunctions against President Trump’s revised Executive Order (the “Executive Order”) that was originally to go into effect on March 16, 2017. The Executive Order (which replaced an earlier Executive Order also blocked by the Federal courts), sought to: (a) institute a 90-day travel ban to prevent nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen (the “Six Affected Countries”) from entering the U.S. (the “Travel Ban”), and (b) both suspend the U.S. Refugee Admissions Program (“USRAP”) for 120 days and then cap the number of refugees admitted to the United States to 50,000 for the Government’s fiscal year 2017 (the “Refugee Ban”).
The Executive Order was blocked by the lower courts, and the above provisions were prohibited in their entirety. Two Circuit Courts of Appeals upheld the lower courts’ rulings and the Trump Administration appealed to the Supreme Court.
The Supreme Court’s Order states that it will hear arguments during its first session in October.
Additionally, the Order removes the injunctions of the lower courts in part. Specifically, the Supreme Court finds that the lower courts’ injunctions will be lifted and limited versions of the Travel Ban and Refugee Ban will apply only for individuals “who lack any bona fide relationship with a person or entity in the United States.” In contrast, the injunctions by the lower courts on the Executive Order will remain in place for individuals “who have a credible claim of a bona fide relationship with a person or entity in the United States” – in other words, this group of individuals will not be subject to the Travel Ban. This same standard will apply to the Refugee Ban, so the Government can in theory allow more than 50,000 refugees to enter the United States before the fiscal year ends provided that these refugees have a credible claim of a bona fide relationship with an individual or entity in the United States.
The Supreme Court’s Order also defines what it means by a “bona fide relationship with a person or entity in the United States.” In order for an otherwise affected foreign national to claim a bona fide relationship with a person, it must be a close family relationship (e.g. entering the U.S. to live with or visit a family member such as a spouse or mother-in-law). Where an otherwise affected foreign national is claiming a bona fide relationship with an entity, it must be a formal, documented relationship that was formed in the ordinary course (e.g. students who are coming to attend University, workers who have accepted offers of employment, or lecturers who have been invited to address an American audience).
Note that the Trump Administration issued a Memorandum on June 14th which clarified that if the injunctions preventing the Travel Ban or Refugee Ban were lifted, the Bans will go into effect three days after the injunction is lifted, i.e. June 29, 2017.
The Supreme Court’s Order is clearly a win in part for President Trump. Under the Order he can ban the subset of individuals from the Six Affected Countries who do not have the right kinds of connections with U.S. persons or entities from entering the United States until September 27, 2017. Similarly, President Trump can prevent certain refugees who do not have any connections to the United States from entering the U.S. until October 27, 2017. But the Order does acknowledge that the Federal government’s interest in securing our borders may not necessarily extend to persons from the Six Affected Countries who have a bona fide relationship or basis for traveling to the United States. It is also important to note that this Order applies only until the Supreme Court reaches a final decision on the injunctions sometime after October 1st.
In a concurrence that was issued along with the Order, three of the Justices have already signaled that they will side with the Trump Administration’s argument that it has close to plenary authority to block the entry of foreign nationals to the United States. The other six Justices have not expressed which position they support.
Lastly, a final decision by the Supreme Court on the legality of the Executive Order may depend on whether the Trump Administration seeks to extend or make permanent the provisions contained in the Executive Order. One of the stated reasons for the Executive Order was to give various Administration agencies the opportunity to investigate the risk to U.S. security of allowing people from the Six Affected Countries to travel to the U.S. as well as the USRAP. The Supreme Court’s Order notes specifically that this partial lifting of the injunction should allow the Administrative the time that it originally said it needed to make these assessments. In the event that the Administration, after performing its assessment, concludes that some or all of the provisions contained in the Executive Order should not be extended, it would arguably render moot the legal fight at the Supreme Court over the validity of the injunctions by the lower courts.
Please contact any of the immigration attorneys at Parker Gallini LLP to discuss questions you have concerning this important Supreme Court Order and the future of President Trump’s Travel and Refugee Ban Executive Order.