[co-author: Beth Khinchuk]

On June 26, the Supreme Court granted the Trump Administration’s petitions for certiorari and agreed to review next term the Fourth and Ninth Circuits’ decisions that affirmed broad injunctions against enforcement of the President’s second Executive Order on U.S. entry by foreign nationals. In the meantime, in a per curiam decision, the Court granted in part the Administration’s request to lift the lower courts’ injunctions against the travel ban affecting nationals of six predominantly Muslim countries, the 50,000-person refugee cap, and the suspension of the refugee program “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” The Court will hear argument on these consolidated cases in October 2017.

The Supreme Court left in place the lower courts’ injunctions “only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that §2(c) [of the second Executive Order] 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. All other foreign nationals are subject to the provisions of EO-2.”

The Court defined “bona fide relationship” as including individuals with a “close familial relationship,” including a wife or a mother-in-law. For entities, the relationship “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.”  This category includes a student who has been admitted to a U.S. university, a person who accepted a job offer with a U.S. employer, and a lecturer invited to address an American audience. The Court stated that the same “bona fide relationship” test will apply to a foreign national who seeks entry to the U.S. as a refugee, regardless of the 50,000- person cap.

Justices Thomas, Alito, and Gorsuch concurred in part and dissented in part. Justice Thomas stated that he would “grant the government’s applications for a stay in their entirety” and agreed “with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.” The Administration can therefore rely on at least three solid votes to overturn the injunctions in their entirety next fall.