Q&A on the Supreme Court “Travel Ban” Decision

Following the Supreme Court’s “travel ban” decision on June 26, Refugees International has assembled the following Q&A.

What do President Trump’s Executive Orders (the “travel bans”) seek to achieve, and how did the case come before the Supreme Court? 

Shortly after taking office, President Donald Trump issued an Executive Order (also commonly referred to as the “travel ban”) on January 27, 2017. With this Executive Order, the president sought to bar people from seven Muslim-majority countries from entering the United States. The president ordered a review the vetting process for refugees and others coming from Somalia, Yemen, Iran, Libya, Sudan, Syria, and Iraq, with the stated goal of protecting U.S. national security. Soon after it was issued, President Trump’s original Executive Order ran into several legal challenges, prompting the Trump administration to issue a second Executive Order in early March. The second Executive Order again sought to restrict the entry of people from certain Muslim-majority nations into the United States and to suspend for 120 days the U.S. Refugees Admissions Program (USRAP), with some modifications to the original Order (including the removal of Iraq from the original designated country list).

Among other things, the second Executive Order sought to:

  • Suspend the issuance of visas for most nationals of six predominantly Muslim countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen – Iraq was dropped from the first Executive Order’s country list) for 90 days as the administration established what the Order termed “adequate standards” to prevent potential infiltration by foreign terrorists into the United States.
  • Direct the Secretary of Homeland Security (DHS) to determine if the six foreign governments provide adequate information to the United States about individuals applying for U.S. visas. After DHS delivered the findings to the president (within 20 days of the Order’s effective date), the six designated countries would have 50 days to address the U.S. findings.
  • Suspend for 120 days decisions on applications for refugee status and the resettlement of such refugees under the U.S. Refugees Admissions Program (USRAP). There are no longer special provisions regarding refugees from Syria as contained in the first Executive Order, which suspended entry of Syrian refuges indefinitely until their resettlement was specifically reauthorized by the president.
  • Limit to no more than 50,000 the number of refugees resettled in the United States for FY 2017. Specifically President Trump declared in the second Executive Order: “I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any entries in excess of that number until such time as I determine that additional entries would be in the national interest.”
  • Establish March 16, 2017, as the effective date of the second Executive Order.

Prior to the Supreme Court’s review, the second Executive Order had not been implemented, as it faced numerous legal challenges resulting in several federal court injunctions barring enforcement of its provisions. 

So, what did the Supreme Court decide to do this week?  

On June 26, 2017, the Supreme Court agreed to hear a legal challenge to the travel ban during its upcoming fall term. The Court also decided that, pending its review of the cases, it would “stay” parts of the injunctions that barred enforcement of the Executive Order. This means that the Court allowed parts of the second Executive Order to be enforced immediately. The decision by the Court cleared the way for President Trump to prohibit the entry of some of those targeted in the Executive Order, but imposed limits on who would be prohibited entry as the Court takes the time to examine the legal questions presented in these cases.

In particular, entry would be continue to be permitted for refugee applicants or those otherwise seeking entry into the United States from the six countries in question if they could provide a credible claim of a ‘bona fide relationship’ to a person or entity within the United States. The Supreme Court cites three different examples that would constitute such bona fide relationships: a) close family members; b) students enrolled at a U.S. university; and c) a person who has accepted a letter of employment from a U.S. company or an invitation from a U.S. entity to give a lecture, etc. In addition, the Supreme Court ruling allows refugees with a “bona fide” U.S. relationship to enter the United States whether or not the FY2017 resettlement cap of 50,000 individuals has been reached.

Under the Court’s action, those without such relationships would be subject to the terms of the Executive Order. 

How many people are impacted
by the Supreme Court’s decision?

It is not clear at this point how many people will be impacted by the Supreme Court’s decision. There is still a high level of uncertainty in the wake of Court’s action. In particular, while the decision cites certain examples, the Supreme Court decision does not provide a clear and comprehensive definition of what constitutes a “bona fide” relationship.

On June 29th, the Administration clarified that it will interpret the requirement of a bona fide relationship with an individual in the United States to mean parents, spouses, children, adult son or daughters, sons and daughter-in-laws, and siblings. Regarding relationships with entities in the United States, they need to be formal, documented, and formed in the ordinary course of events.    

What happens when the Supreme Court returns in October and hears the travel ban challenges?
Any sense of what the justices are going to decide?

The Supreme Court agreed to hear arguments regarding the second Executive Order during its October term. The justices will consider the larger concerns regarding the provisions contained in the second Executive Order, including the specific question of whether the challenges to Section 2(c) of the second Executive Order became moot on June 14, 2017. (This question focuses on the provisions within the Executive Order that ban individuals form the six predominantly Muslim countries for 90 days. Section 2(c) specifically stated that the suspension of entries into the United States should last for 90 days “from the effective date of this Order” – which was March 16, 2017 – and one specific legal challenge to the second Executive Order claims that the 90-day ban already expired on June 14, 2017.)

What is Refugees International doing?

As an independent organization that for more than 38 years has carried out field missions and advocated for lifesaving assistance and protection for displaced persons and solutions to displacement crises, RI is deeply alarmed by recent changes in U.S. refugee policy.

The exceptions announced by the Court do not change the fact that there is no reasonable national security justification for these bans. Moreover, the suspension of refugee resettlement will impact the most vulnerable of the world’s populations, including women and girls at risk, survivors of violence and torture, and children at risk, among other groups. RI will continue to speak out against any U.S. policy that unfairly targets refugees.

The team at RI, with your support, is now more resolved than ever to be a fierce and independent advocate on behalf of innocent men, women and children fleeing war, persecution, and climate disasters around the globe. And we will continue to remind the U.S. political leaders of America’s rich history and commitments to assisting and protecting the world’s most vulnerable and hold government officials accountable when they fail to do so.