November 30th, 2018
Partial Implementation of President Trump’s Travel Ban Allowed by U.S. Supreme Court
In a per curiam decision, the Supreme Court of the United States allowed partial implementation of Executive Order No. 13780, also known as President Trump’s travel ban. The decision granted both of the government’s petitions for certiorari, consolidated the circuit court cases, and set the case for argument before the court in October 2017.
At the center of the decision are sections 2(c) and sections 6(a) – (b) of the Executive Order. These sections direct the Secretary of Homeland Security to suspend entry of nationals from six Muslim majority countries for ninety days and suspend decisions on applications for refugee status and travel of refugees into the United States under the United States Refugee Admission Program for 120 days.
The decision partially lifts the injunctions put in place by the circuit courts, allowing the administration to implement a limited version of the Executive Order. The decision noted that the sections mentioned above “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 . . . [and] . . . against an individual seeking admission as a refugee . . . even if the 50,000 person cap has been reached or exceeded.”
For individuals, a bona fide relationship refers to a close familial relationship. For a U.S. entity, an offer of employment or admission to an American university would also qualify an individual for an exception to enforcement of the Executive Order under the Supreme Court decision.
The U.S. State Department further clarified the definition of “close familial relationship” for the purposes of determining if someone is subject to the Executive Order in an announcement:
A close familial relationship is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members.
The decision reflects a “balancing of equities” by the Court in that it recognizes the government has a compelling interest in keeping the country safe, but also recognizes the harm caused to individuals if they are denied entry. Until a final decision is made by the Supreme Court, individuals from the countries affected will have to demonstrate that they have ties to a bona fide relationship with a U.S. citizen or entity, or otherwise qualify for a waiver.