Supreme Court allows Trump Administration to Partially Enforce Travel Ban

by Burr & Forman
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The U.S. Supreme Court issued an order today that granted the Trump Administration’s petitions for certiorari and partially granted the Administration’s motions to stay injunctions of the so-called “travel ban.”  This means that the Supreme Court will hear arguments about whether or not the travel ban is constitutional in October, and that the U.S. government can start enforcing portions of the travel ban immediately.

You may recall that President Trump signed an order preventing citizens of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, from entering the U.S. for at least 90 days while the U.S. government analyzed the integrity of mandatory screening and vetting necessary for these citizens to travel to the U.S.  The order was signed just days after President Trump took office in January, and it was in effect barely a week before it was enjoined by federal district courts in several jurisdictions.

Flash-forward to June 26, when the Supreme Court accepted President Trump’s petition to review additional orders from the Fourth and Ninth Circuit Courts of Appeals, which also upheld most aspects of the injunctions.  While the Court will fully consider the legal issues surrounding the travel ban later on this year, it did issue a preliminary order allowing the Trump Administration to partially enforce the travel ban.

The Supreme Court’s order will not allow the Administration to enforce the travel ban against citizens of these countries when they have “a credible bona fide relationship with a person or entity in the United States.”  So, if a citizen from one of these countries can demonstrate that he/she is visiting or joining a relative who is a U.S. citizen or legal permanent resident, that he/she is the employee of or has a job offer from a U.S. company, that he/she is enrolled as a student at a U.S. institution of education, or that he/she has been invited to speak at a conference held in a U.S. city, then that citizen probably has the necessary relationship to be granted admission to the U.S.  Anyone who can’t demonstrate such a relationship is subject to the ban.  Seems fairly straight-forward, right?

That remains to be seen.  Ultimately, the Administration is going to have to interpret this guidance and then filter that interpretation to the thousands of Customs and Consular officers who process foreign nationals at the U.S. border and process applications for visas.  Those officers already have volumes of regulations to consider during the hundreds, if not thousands, of applications they process on a given day.  And to make things even more interesting, the Supreme Court threw in this additional statement to explain what a bona fide relationship is:  “Not so someone who enters into a relationship simply to avoid §2(c) [the travel ban].  For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

The example is clear enough, but doesn’t this guidance open the door to assume that any relationship entered into after this guidance was issued was contrived to avoid the travel ban?  Again, there will be no real clarity on this issue until there are some specific anecdotes on how Customs and Department of State are interpreting this guidance.  Which brings me to my ultimate point.

Regardless of how strong one’s ties to the U.S. are, any citizens of these countries who are already present in the U.S. are strongly encouraged to seek legal counsel and weigh options carefully before making the decision to leave the U.S., even for a brief trip abroad.  If that citizen will have a need to get back into the U.S. any time in the near future, he/she cannot assume that Customs will grant entry or that Department of State will grant a visa until we know more about how this guidance will be interpreted by those agencies.   These agencies likely will be under significant pressure to reinstitute the ban quickly, similar circumstances that led to a lot of confusion and mistakes the last time this ban was implemented.

Citizens of these countries who are outside the U.S. seeking entry should prepare for delays and possible refusal.  Documentation of bona fide relationships should be presented at every opportunity while seeking entry.  Here are some examples of what may be helpful:

– For employment relationships, employees should carry offer letters, updated letters confirming continuing employment, recent pay statements, and notices from Immigration approving employer petitions for employees’ visas;

– For family relationships, try carrying civil certificates (birth, marriage, adoption, family books, etc.) social media updates (if you don’t mind offering your social media account for inspection) or photographs showing family members together, letters from U.S. citizen family members stating the length of the visit, the address where the foreign national will stay, etc.;

– For business and conference visitors, e-mails or other written correspondence discussing the meeting, letters of invitation, agendas, web material advertising the conference, etc.

Carrying these documents will not guarantee admission to the U.S., but it hopefully will improve the odds.  Of course, circumstances and advice are subject to change overnight depending on what happens next, so stay tuned.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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