Supreme Court Partially Reinstates Travel Ban

06/26/2017

Today, the United States Supreme Court ("the Court") partially reinstated President Trump's revised travel ban and will hear oral arguments on the related cases next term. In its order, the Court ruled that while the cases are pending, the government can enforce the travel ban against "foreign nationals who lack any bona fide relationship with a person or entity in the United States".

The Court defined "credible claim of a bona fide relationship" as a "close familial relationship" for individuals. For entities, the Court stated "the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2 [Executive Order 2]". The Court's order then lists three examples that would qualify as a bona fide relationship with a U.S. entity:

• A student admitted to an American university.
• A worker who has accepted an employment offer from an American company.
• A lecturer invited to address an American audience.

In outlining its reasoning for the order, the Court concluded the balance of hardship favors the government when the foreign national does not have a relationship with an individual or entity in the United States. "Denying entry to such a foreign national does not burden any American party... And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. ...So whatever burdens may result from enforcement of §2(c) [the travel ban section of the President's Executive Order] against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below. At the same time, the Government's interest in enforcing §2(c), and the Executive's authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States."

The Court's order also applies to the President's attempt to temporarily suspend, and ultimately limit, refugee admissions. Thus, refugees who do not have a "bona fide relationship" with an American individual or entity are no longer protected by lower court injunctions. Those who do, however, may still apply for admission as a refugee and are not subject to the cap of 50,000 refugee admissions per year mandated by President Trump's Executive Order.

Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, concurred in part and dissented in part. In his partial dissent, he wrote, "...I fear that that the Court's remedy will prove unworkable. Today's compromise will burden executive officials with the task of deciding - on peril of contempt - whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. ...The compromise will also invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a ‘bona fide relationship,' who precisely has a ‘credible claim' to that relationship, and whether the claimed relationship was formed ‘simply to avoid §2(c)' of Executive Order No. 13780..." He also noted that the lower courts likely to hear those cases had already ruled against the government unanimously and that "neither party asks for the scope of relief that the Court today provides."

Please contact your Goel & Anderson attorney if you have any questions.

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