The saga of court challenges to President Trump’s revised travel ban continued after the preliminary ruling by the U.S. Supreme Court on June 26, which gave the Administration a partial victory. The Administration received another partial victory on Monday, when the Supreme Court, disagreeing with the U.S. Court of Appeals for the Ninth Circuit, temporarily allowed part of the refugee ban to continue. Oral argument on the merits of the March 2017 “revised” travel ban will take place on October 10.
In our Immigration Dispatch on the Supreme Court’s June decision, we wrote that lower court injunctions against the revised travel ban would remain in place (meaning that the travel ban will not be enforced) where the foreign national from one of the six designated countries has ‘a credible claim of a bona fide relationship with a person or entity in the United States.’ Personal relationships could include family members in the United States. Relationships with entities could include employment, or acceptance or enrollment at a university, in the United States. According to the Court, relationships with entities “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the revised travel ban].”
This requirement of a bona fide relationship also applied to the refugee cap in the revised travel ban.
After the Supreme Court’s June 26 ruling, the State of Hawaii challenged the Trump Administration’s interpretation of the ruling – in particular, that most refugees would be excluded and that only certain relatives of American residents could enter – parents, children, spouses, siblings, parents-in-law, sons-in-law and daughters-in-law, and people engaged to marry. A federal judge in Hawaii issued an order preventing the Government from enforcing the revised travel ban against “(1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program....” Last week, the Ninth Circuit affirmed the district court’s decision, and the Trump Administration asked the Supreme Court to stay the Ninth Circuit ruling, as it related to refugees covered by a formal assurance from a resettlement agency. The Government argued in its brief,
The absence of a formal connection between a resettlement agency and a refugee subject to an assurance stands in stark contrast to the sort of relationships this court identified as sufficient in its June 26 stay ruling. Unlike students who have been admitted to study at an American university, workers who have accepted jobs at an American company, and lecturers who come to speak to an American audience, refugees do not have any freestanding connection to resettlement agencies, separate and apart from the refugee-admissions process itself, by virtue of the agencies’ assurance agreement with the government.
In its order issued Monday, the Supreme Court temporarily blocked the portion of the Ninth Circuit’s decision that related to refugees covered by a formal assurance from a resettlement agency.
As a result of the Supreme Court’s order, certain refugees – those who have received formal assurances from resettlement agencies – will not be allowed entry to the United States until the Supreme Court hears arguments and issues a decision on the merits. In addition, non-refugee foreign nationals from the six designated countries in the revised travel ban – Iran, Libya, Somalia, Sudan, Syria and Yemen – can come to the United States if they meet the requirements of a “bona fide relationship,” per the Supreme Court’s June 26 ruling.