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Legal Update

US Supreme Court Agrees to Hear Travel Ban Case, Partially Lifts Injunctions Ordered by Lower Courts

26 June 2017
Mayer Brown Legal Update

On June 26, 2017, the Supreme Court announced that it will hear the US government’s appeal from lower court orders enjoining Executive Order No. 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States,” also known as the “Travel Ban,” next term. The Court also granted the government’s application to stay the injunctions “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States,” thus allowing the Travel Ban to proceed with respect to such individuals. Importantly, the Supreme Court left in place the injunction barring implementation of the Travel Ban as it relates to individuals who do have a “bona fide relationship” with any individual or entity in the United States; as a result, the Travel Ban remains inoperative for the significant majority of affected individuals.

“Bona Fide” Relationship

The Court is leaving the injunctions entered by the lower courts in place as they relate to the respondents, a lawful permanent resident whose Iranian wife is seeking entry to the US, the state of Hawaii and Dr. Ismail Elshikh, an American citizen and imam whose Syrian mother-in-law is seeking to enter the United States, as well as those who are similarly situated:

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relation­ship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The stu­dents from the designated countries who have been admit­ted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American com­pany or a lecturer invited to address an American audi­ence. Not so someone who enters into a relationship simply to avoid §2(c): 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 Court refers to Executive Order No. 13780, issued in March 2017, as EO-2 to distinguish it from the initial Executive Order (EO 13769) issued on January 27, 2017. Section 2(c) of EO-2 directs that entry of nationals from six countries—Iran, Libya, Somalia, Sudan, Syria and Yemen —be suspended for 90 days from March 16, 2017. As reported in our earlier Legal Updates,1 EO-2 was enjoined by the lower courts, and the injunctions were upheld by the Ninth and Fourth Circuit Courts of Appeals.

The Rationale

The Supreme Court discussed its rationale for partially staying those injunctions as follows:

[T]he 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. Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system pri­marily for the benefit of individuals in the former category. See, e.g., §§3(c)(i)–(vi). The interest in preserving national security is “an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.

The Court drew the same distinction with respect to EO-2’s lowering of the refugee cap:

The Hawaii injunction extends beyond §2(c) to bar enforcement of the §6(a) suspension of refugee admissions and the §6(b) refugee cap. In our view, the equitable balance struck above applies in this context as well. An American individual or entity that has a bona fide rela­tionship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hard­ship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to pro­vide for the Nation’s security. See supra, at 9–11; Haig v. Agee, 453 U. S. 280, 307 (1981).The Government’s application to stay the injunction with respect to §§6(a) and (b) is accordingly granted in part. Section 6(a) may not be enforced against an individ­ual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000­ person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

The opinion/order can be found at https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf. (Note that Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch would have stayed the injunctions entirely and would have allowed the executive order to take full effect.)

Visa Applicants

As all immigrant visa applicants and many nonimmigrant visa applicants will be able to demonstrate a bona fide relationship (family, employment, business, prearranged medical care, etc.) to an individual or entity in the United States, most visa applicants likely will be found to fall within the scope of the injunction blocking partial implementation of the Travel Ban. Tourists and others with only attenuated or no connections to the United States will not be within the scope of this partial injunction and thus will be denied visas under the Travel Ban. The consulates likely will make a judgment concerning visa eligibility and whether there is a bona fide relationship during the visa interview.

*****

1Ninth Circuit Panel Upholds Temporary Suspension of Executive Order Travel Restrictions” (February 9, 2017) and “Court of Appeals Upholds Preliminary Injunction against Second Trump Travel Ban” (May 25, 2017)

Authors

  • Elizabeth (Liz) Espín Stern
    T +1 202 263 3825
  • Paul Virtue
    T +1 202 263 3875
  • Grace Shie
    Partner
    T +1 202 263 3845
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