The Supreme Court announced June 26, 2017, that it will hear arguments during its upcoming term on the “travel ban” litigation, and in the meantime, it will allow part of the President’s executive order temporarily banning the entry into the United States of nationals of six Muslim-majority nations (Iran, Libya, Somalia, Sudan, Syria and Yemen) and refugees to go into effect. The “travel ban” litigation refers to lawsuits filed in several jurisdictions challenging the legality of the President’s executive order. The government had sought review with the Supreme Court after the 4th and 9th U.S. Circuit Courts of Appeals upheld preliminary injunctions blocking parts of the executive order, including the sections banning entry of people from the six countries as well as refugees.
The Supreme Court effectively limited the scope of the lower courts’ preliminary injunctions, allowing the government to go forward with parts of the travel ban. The Court, however, retained the preliminary injunction for people from the six countries and refugees “who have a credible claim of a bona fide relationship with a person or entity in the United States.” This means that the executive order’s prohibition on entry into the United States may not be applied to people with “bona fide” connections to the United States. Refugees who can establish such ties are not subject to the entry ban even if the total number of refugees exceeds the 50,000 annual limit that the executive order had imposed. However, all others from the six listed countries and refugees who do not have such connections to the United States are subject to the temporary travel ban.
The Supreme Court provided a brief description of the meaning of “bona fide relationship with a person or entity.” It ruled that “[f]or individuals, a close familial relationship is required” and gave as an example a person desiring to enter to visit or reside with a family member. It said: “for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading” the executive order. It gave examples of a student admitted to a U.S. university, a worker who had accepted an employment offer from an American business, or a lecturer invited to speak to an American audience. Similarly, for refugees seeking admission to the United States who are connected to a U.S.-based voluntary agency, proof of such connection would appear to meet the “bona fide” relationship standard. The Court warned that a person who entered a relationship “simply to avoid” the executive order’s reach would not meet this standard, noting that “[f]or 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.”
It remains to be seen how the Court’s new order will be implemented. The Court’s case-by-case standard may result in confusion, further litigation to protect the rights of people who are affected by the ban, and disparate treatment of similarly-situated individuals seeking entry, as individual officers interpret and enforce the “bona fide relationship” test. The Court’s order appears to contemplate that the “bona fide relationship” inquiry will be made in each case by individual decision-makers, which could in practice include consular officers abroad, U.S. Customs and Border Protection agents at ports of entry, and even airline personnel, as people seek to board flights to the United States.
For those who may be affected by the Court’s ruling (including those seeking entry, or whose family member is seeking entry, as refugees or from one of the six countries), several steps should be taken. The affected individual should gather documentation of his or her ties to the United States. This might include, for example, proof of relationship with a person residing in the United States, or proof of a connection to a U.S.-based entity, such as a university or employer. Any problems should be reported immediately and assistance sought from attorneys or nonprofit legal services organizations. Depending on the individual’s circumstances, it may be possible to seek relief in federal court if the government acts in violation of the Supreme Court’s order.
The Supreme Court is positioned to take up the merits of the “travel ban” case during its October Term. However, the Court made note of the possibility that the challenge could be moot by that time, and has asked the parties to brief the issue. By the executive order’s own terms, the six-country ban was only to last 90 days, and the refugee ban 120 days, during which time the government would conduct internal reviews. It is possible that by the time arguments would be heard by the Supreme Court, the ban would have expired. However, the government could amend or re-issue the ban at any time.
 Resources include: Airport Lawyer (https://www.airportlawyer.org/); CLINIC’s web form for residents of Maryland (https://cliniclegal.org/defending-vulnerable-populations/MoCoProject); and International Refugee Assistance Project (email@example.com).