Travel Ban Partially Reinstated by SCOTUS, Modified by Hawaii Judge: What We Know So Far
On June 26, 2017, the US Supreme Court (SCOTUS) reinstated some aspects of President Trump’s “travel ban” Executive Order (EO) until the Court can hear full oral argument and decide the merits of the case, sometime this fall. The EO at issue, titled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States” and signed on March 6, is the President’s second attempt at temporarily barring some foreign nationals and refugees from entry into the U.S. and was issued after Courts around the country universally rejected both his first and second travel ban EO’s (the earlier one was January 27).
Notably, SCOTUS did not fully reinstate the EO. It merely lifted the permanent injunction against its terms during the pendency of litigation, and only for foreign nationals of the six banned countries (Iran, Syria, Libya, Somalia, Sudan, and Yemen) and refugees who can’t demonstrate “a credible claim of a bona fide relationship with a person or entity in the United States”. Thus, individuals subject to the ban may still travel if they have a close familial relationship to someone in the U.S., or if they can establish a formal, documented relationship to an entity in the U.S. which is not an attempt to circumvent the ban.
Both DHS and the Department of State have issued guidance that a relationship with a person must qualify as a “close family relationship,” which they define as:
· a parent (including parent-in-law), spouse, fiance(e), child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members.
The Department of State has issued a cable that a “bona fide relationship to an entity” can be satisfied by showing:
· An I visa applicant employed by foreign media that has a news office based in the U.S.;
· Students from designated countries who have been admitted to U.S. educational institutions;
· A worker who has accepted an offer of employment from a company in the U.S.; or
· Lecturer invited to address an audience in the U.S.
· However, a bona fide relationship does not include:
o A nonprofit group who seeks out clients from the designated countries, adds them to their client list, and then claims injury from their inclusion in the EO.
o An individual whose only tie to the United States is a hotel reservation, whether paid or not.
Subsequent guidance from DHS and DOS also indicates that visas issued prior to June 29, 2017 will not be revoked, and visa applications and interviews will continue, but officers will be trained on making case-by-case determinations as to whether applicants are exempted from the EO or qualify for a waiver.
On July 13, 2017, District Court Judge Derrick K. Watson in Honolulu, HI found the DHS & DOS implementation guidelines “unduly restrictive”, and ordered that the SCOTUS decision compelled DHS to include as “close family”: grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the U.S. Moreover, the same decision ordered that the U.S. government cannot exclude refugees individually covered by a formal assurance with a U.S. refugee resettlement agency.
Remember, the EO on its face does not apply to:
· permanent residents of the U.S.;
· any foreign national who is admitted to or paroled into the United States on or after the effective date of the EO;
· any foreign national 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;
· any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa;
· any dual national of a banned country when the individual is traveling on a passport issued by a non-designated country; or
· any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document.
Finally, notwithstanding the SCOTUS decision, the EO itself provides for waivers for banned foreign nationals or refugees on a case-by-case basis, as determined by a consular officer or Customs and Border Protection (CBP) official. There has been no official guidance yet on the waiver process, but the EO states that waivers may be appropriate in the following instances:
· the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity;
· the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;
· the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;
· the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
· the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
· the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;
· the foreign national is traveling for purposes related to a designated international organization, traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization;
· the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or
· the foreign national is traveling as a United States Government-sponsored exchange visitor.
Note that most waivers would be unnecessary and moot if the relevant government agencies follow SCOTUS ruling to the letter, ie, persons with a “bona fide relationship” to a U.S. person or entity are not included in the ban.
The Executive Order, with the limitations as outlined by the Court, went into effect on July 1, and will remain in place for 90 days (for nationals of the six banned countries) and 120 days (for refugees). We will provide updates as more details become available.