The Supreme Court Just Partially Revived Trump's Travel Ban. Here's What Immigration Lawyers Think It Could Mean.
The Supreme Court on Monday agreed to hear a case challenging injunctions to President Trump's travel ban on people from six Muslim-majority countries.
In the wake of the Supreme Court’s decision Monday to partially lift injunctions against President Trump’s travel ban, immigrant lawyers and refugee resettlement agencies are working to decipher how the partial ban will affect their clients.
The Supreme Court agreed to hear the case after the Justice Department appealed injunctions against the ban, which were handed down from lower courts in Hawaii and Maryland.
In the interim, the Supreme Court ruled that the ban should be reinstated for people who can’t prove "a bona fide relationship with a person or entity in the United States."
In doing so, the justices argued that the lower court decisions did not prove that temporarily banning people without a "bona fide relationship" in the US would "impose any legally relevant hardship."
Immigration lawyers say the partially reinstated travel ban on citizens of six majority-Muslim countries shouldn’t affect people with visas or who are coming to the US for business, to visit family, or attend school.
“The bottom line is that not that many people are actually banned," Justin Cox, an attorney with the National Immigration Law Center (NILC), who worked on getting the first stay against Trump’s travel ban issued, told BuzzFeed News. "We’re talking about people from these six countries — anyone who is applying for an employment visa, or a student visa or a immigration visa through a family relationship the ban would not apply to them."
But what the requirement means for refugees — who were banned from entering the US under the March executive order — is less clear, especially because the Department of Homeland Security has yet to issue any guidance on how Customs and Border Protection agents should interpret and implement the “bona fide relationship” requirement.
Cox said NILC is still working with refugee resettlement partners to clarify whether clients who have already filed applications for refugee status will be affected, but he thinks refugees' relationship with US-based resettlement agencies should protect them from the re-instated ban.
The order specifically states that the plaintiffs in the challenges to the ban should not be subject to the new requirement.
“All of our plaintiffs, and all the plaintiffs who have put forward a challenge, will be able to be admitted to the United States,” Cecillia Wang, director of the ACLU’s Center for Democracy and the nonprofit's deputy legal director.
But refugee resettlement agencies expressed concern that clients who are in the process of applying for refugee status in the US could be affected by the decision.
“Too much time already has been spent litigating this misguided order,” David Miliband, president and CEO of the International Rescue Committee, said in a statement. “The approach of the administration is bad policy. That is not changed by the legal arguments. The court’s decision threatens damage to vulnerable people waiting to come to the US: people with urgent medical conditions blocked, innocent people left adrift, all of whom have been extensively vetted.”
The IRC did not immediately respond to a request for more details on which of their clients will be affected.
"While the Supreme Court reviews this case, we will continue to act on our moral obligation to highlight the rights and needs of refugees around the world and emphasize the dramatic impact the Court’s decision will have on those vulnerable populations," Eric Schwartz, president of Refugees International, said in a statement.
Another refugee resettlement agency, the International Refugee Assistance Project, which worked with NILC to get the stay on the first executive order, said the refugees they already represent should not be impacted by the reinstatement. They said they, too, are still working to clarify how the decision will be implemented.
IRAP represents close to 2,000 people at various stages of the refugee application process.
The agency’s policy director, Betsy Fisher, told BuzzFeed News she would also argue that any refugees who submit new applications with IRAP should be protected from the ban.
"I don’t read this decision to say that that would not count [as a bona fide relationship]. I think it’s the intent of the matter that seems to be the operative issue,” she said.
The executive order, which Trump issued on March 6 after his initial travel ban from January was stayed by several court challenges, banned people from six predominantly Muslim nations from entering the US for a period of 90 days, and banned all refugee resettlement for 120 days.
"In light of the conditions in these six countries, until the assessment of current screening and vetting procedures required by Section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high," the order stated.
The order faced dozens of court challenges around the country, with the injunction in Hawaii dealing an early blow to its implementation.
The re-instated ban is to take effect 72 hours after the Supreme Court decision on Monday morning. The ACLU and NILC say they’ll be keeping close watch on airports around the US when it does take effect.
“We will be looking out for any activity on the part of the federal government at airports or other ports of entry because the government has said in the course of this litigation that this ban is only going to apply to people who do not have an approved visas,” said Wang. “No one wants to see the chaos that erupted at the airports after the first executive order.”