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Supreme Court Decides to Hear Travel and Refugee Ban Case and Clarifies Enforcement of Executive Orders Pending Hearing

June 27, 2017

On June 26, 2017, the Supreme Court consolidated the two key cases in the travel and refugee ban litigation sparked by President Trump’s executive orders and decided that the case will be heard during the first session of the October 2017 term.  In the meantime, the Court will allow the administration to implement parts of President Trump’s second executive order (EO-2), which bans the entry of nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen from the United States for at least 90 days and suspends the admission of all refugees for 120 days.

In a narrow decision, the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have a “credible claim of a bona fide relationship with a person or entity in the United States.”

Essentially, what this means is that individuals from the six countries already listed will be permitted to enter the United States if they have a “close familial relationship” with someone already here or if they have a “formal, documented” relationship with an American entity formed “in the ordinary course” of business.  However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban.

The government is likely to begin applying the travel ban in the limited fashion permitted by the Supreme Court very soon. In fact, the Department of Homeland Security (DHS) issued a statement on June 26th confirming that it would provide details on implementation of the Court’s decision after consultation with the Department of Justice and the State Department. DHS stated that the implementation would be “done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”

Who is likely to be allowed to enter the United States?

  • Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017
  • Individuals with visas coming to live or visit with family members
  • Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience. It remains to be seen whether students admitted to U.S. public or independent secondary schools will also be allowed to enter.
  • Other types of business travelers - It is still unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity
  • Refugees - A refugee with a credible claim of a bona fide relationship with an U.S. person or entity may not be excluded even if the 50,000 cap on refugees has been reached or exceeded. Most refugees processed overseas have family or other connections to the United States, including with refugee resettlement agencies. However, it is unclear from the Court’s ruling whether a relationship with a refugee resettlement agency constitutes a “formal, documented [relationship] formed in the ordinary course of [business].” Consequently, it remains to be seen whether or not the government will take the position that refugees without family connections in the United States are not protected by the narrowed injunction.

Who may experience difficulties entering the United States?

  • Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017
  • Tourists - Nationals of the six designated countries who are not planning to visit family in the United States and who are coming for other reasons, including sightseeing, may be denied entry

It remains to be seen how implementation of the order will proceed, and there will no doubt be intense scrutiny by the media, as well as by Muslim, immigrant and refugee rights organizations.  We will update you as developments warrant.

© Shipman & Goodwin LLP, 2017. All Rights Reserved.