The U.S. Supreme Court issued a preliminary ruling yesterday in the Trump Administration’s challenges to lower court decisions on the “travel ban.” The Administration had sought to
- stay preliminary injunctions issued against the revised travel ban issued March 6 and upheld by U.S. Courts of Appeal for the Fourth and Ninth Circuits; and
- seek Supreme Court review on the merits of the Court of Appeals decisions.
In yesterday’s ruling, the Court granted the Administration’s request for a stay of the preliminary injunctions, but only in part. The Court also granted the Administration’s petition for certiorari and directed that the cases be consolidated and set for argument in the first session of its October 2017 term.
The revised travel ban applied to foreign nationals of six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – with certain exceptions, including ones for lawful permanent residents of the United States. The revised travel ban was a moderated version of the original ban, which was issued on January 27 and was almost immediately enjoined by a federal court in Washington State, which was affirmed by the Ninth Circuit. After the revised travel ban was issued in March, the revised ban was enjoined in part by a federal court in Maryland (affirmed by the Fourth Circuit) and in total by a federal court in Hawaii (affirmed in large part by the Ninth Circuit). The Government is seeking Supreme Court review of the Fourth Circuit decision and the Ninth Circuit decision related to the Hawaii case.
The Supreme Court said yesterday that the injunctions 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].”
To this extent, the majority on the Court agreed with the lower courts that the harm to the affected U.S. family members and entities resulting from enforcement of the revised travel ban arguably outweighed the Government’s national security interests.
On the other hand, with respect to foreign nationals who lack these bona fide relationships with persons or entities in the United States, the Court stayed the injunctions (meaning that the travel ban will be enforced), finding that “the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”
Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, dissented in part, arguing that the injunctions should have been stayed in their entirety.
What is the practical impact of the Court’s decision?
Until the Supreme Court issues a final decision after arguments in the fall, the revised travel ban will not be enforced with respect to foreign nationals from the six designated countries who are coming to the United States pursuant to a “close relationship” with a family member in the United States or a documented, pre-existing relationship with a U.S. entity.
The revised travel ban will be enforced with respect to foreign nationals from the six countries who do not have these relationships, including – for example – “a nonprofit group devoted to immigration issues” that “contact[s] foreign nationals from the designated countries, add[s] them to client lists, and then secure[s] their entry by claiming injury from their exclusion.”
These same distinctions will apply to the refugee cap in the revised travel ban.
There is some concern that U.S. Customs and Border Protection officials at the port of entry will be burdened with deciding in some cases whether the applicant (e.g., a person entering on a tourist visa) has a sufficiently documented connection to a U.S. source. That decisionmaking may slow the entry process and could lead to further litigation when entries are denied.
However, it does not appear that this will be a problem in clear cases, such as students with student visas, or individuals with family or employment-based visas.