Supreme Court leaves travel ban injunction in place for those with ‘bona fide’ U.S. ties

26 Jun 17

UNITED STATES

The Supreme Court on Monday ruled that parts of President Donald Trump’s revised travel ban may take effect, but carved out an important exemption for anyone with “a credible claim of a bona fide relationship” to a U.S. person or entity. The Court will hear arguments on the case in October.

Key points:

  • Trump signed an Executive Order March 6, banning nationals of six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – from traveling to the U.S. for a 90-day period. Implementation of the travel ban was subsequently blocked by federal courts in Hawaii and Maryland, and the blocks were upheld by appeals courts in the Fourth and Ninth Circuits.
  • The Supreme Court’s ruling means that the travel ban may be implemented, but not as it relates to anyone with bona fide ties to the United States. The Court listed several examples of those who would be exempt based on their relationship with a U.S. person or entity, including people coming to the U.S. to (1) live with or visit a family member; (2) study at a U.S. university; (3) work for a U.S. company; or (4) deliver a speech to an American audience. The Court said the travel ban may be applied to “refugees who lack any (bona fide) connection” to the U.S., as well as those who develop ties to the U.S. for the express purpose of maneuvering around the president’s Order (e.g., by developing a relationship with an immigrant rights organization).
  • The Court also asked the parties to address whether the case has become moot, given that the 90-day entry ban would have already expired had it gone into effect on March 16, as the president’s Order directed.

Background: The March 6 Order was signed after a broader Executive Order, issued in late January, stalled in federal court. The revised version included exemptions for green card holders, visa holders and dual nationals. It also did not cover Iraqi nationals, who were included in the initial Executive Order. The second Executive Order has also been held up in the courts, however, and the Trump administration appealed to the Supreme Court earlier this month. The Court has now agreed to consider this case, but will not hear arguments until October, noting that the government did not ask for an expedited schedule. The order the Court issued Monday was unsigned. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented, saying they would have lifted the injunctions entirely until the Supreme Court decides the case, and that they believed the government was likely to succeed on the merits of the case.

BAL Analysis: While it is not entirely clear how the Court’s ruling will be implemented, the exemption the Court provided for those with “bona fide” relationships with U.S. people or entities, as well as the list of examples the Court gave on who would be permitted continued entry to the U.S., suggests that those with legitimate travel needs for work or business will not be kept from traveling, pending a final ruling. Employers with personnel who would be subject to travel restrictions should continue to advise their employees to exercise caution when planning travel because the litigation is ongoing. BAL is carefully monitoring the situation and will continue to provide updates on important developments.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@balglobal.com.

Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.