US Supreme Court temporarily reinstates President Trump's travel ban for immigrants with no bona fide connection to the United States

Trump v International Refugee Assistance Project, 137 S.Ct 2080 (26 June 2017)

Summary

On 26 June 2017 the Supreme Court of the United States temporarily reinstated President Trump's travel ban pending a final hearing later this year. However, a majority of the Court held that the temporary reinstatement will not apply to people who can show they have a credible claim of a bona fide relationship with a person or organisation already in the United States.

Facts

On 6 March 2017, President Trump issued an Executive Order (EO) which:

• suspended the entry of nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days;
• suspended decisions on applications for refugee status and travel of refugees into the United States for 120 days; and
• restricted the number of refugee entries between 1 October 2016 and 30 September 2017 to 50,000.

Lawful permanent residents, dual citizens traveling under a passport from a non-banned country, asylum seekers, and refugees already admitted to the United States are exempt from the EO. The EO replaced an earlier order which had imposed a more far-reaching travel ban.

A number of American respondents with relationships with foreign nationals excluded by the travel ban filed separate lawsuits challenging the EO on the basis that, among other things, it:

• violated the First Amendment to the Constitution, as its principal purpose was to exclude Muslims from the United States; and
• did not comply with statutory provisions prohibiting nationality-based discrimination and requiring the President to provide reasons for any restriction on the number of refugees entering the United States.

The District Court granted orders temporarily restraining the Government from enforcing the travel restrictions until the case is finally determined. The orders were largely upheld on appeal.

The Government further appealed to the Supreme Court, seeking to have the earlier decisions reviewed and to stay the temporary restraining orders.

Decision

A majority of the Supreme Court held that the earlier decisions should be reviewed but that the temporary restraining orders should remain in place with respect to foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States, namely:

1. a 'close familial relationship' with an individual; or
2. a relationship with an entity (such as a university) which is 'formal, documented, and formed in the ordinary course', rather than for the purpose of evading the EO.

However, the Court temporarily reinstated the EO with respect to all other foreign nationals, reasoning that:

1. the Government's national security interest in preventing the entry of foreign nationals while reviewing the adequacy of information provided by foreign governments was especially strong where those foreign nationals had no connection with the United States; and
2. denying entry to a foreign national with no connection to the United States would not burden any American party, but would appreciably injure the interests of the Government.

In a separate opinion dissenting from the majority, Justice Thomas (with whom Justices Alito and Gorsuch agreed) stated that his Honour would have stayed the  temporary restraining orders in their entirety on the basis that:

1. the Government had made a strong case that the judgments below will be reversed when the case is finally determined by the Supreme Court;
2. the Government had established that failure to stay the injunctions will cause irreparable harm by interfering with its 'compelling need to provide for the Nation’s secu­rity'; and
3. the Government's interest in preserving national security outweighed the hardships caused to the respondents by temporary denials of entry into the country.

Justice Thomas also opined that the majority's orders were unworkable because until the case was finally resolved, executive officials and courts would be burdened with deciding whether individuals seeking entry to the United States have a credible claim to a bona fide relationship with a local person or entity.

Commentary

Whilst the majority decision has generated some further litigation on the meaning of a 'bona fide relationship', it has not yet proved as unworkable as predicted by Justice Thomas. For example, the Trump Administration's attempt to limit the class of close familial relationship to parents, spouses, fiancés, children, in-laws, siblings and step relationships was swiftly struck down by the Federal District Court, which determined that grandparents, grandchildren, aunts, uncles, nephews, nieces, cousins and siblings-in-law are also included. The District Court also held that the Government may not exclude a refugee covered by a formal assurance issued to the Government by a United States refugee resettlement agency. See State of Hawaii v Trump, CV. NO. 17–00050 DKW–KSC (D Haw, 2017) (13 July 2017).

In determining the Government's application, the Supreme Court majority limited its consideration to the possibility of interim harm to each side, rather than expressing a view as to the prospects of success in the ultimate proceedings.  The dissenting opinion indicated that at least three of the nine Supreme Court judges were of the view that the Government would have had a strong case at the final hearing that was set to start on 10 October 2017. However, the Supreme Court cancelled the final hearing after the administration announced a new executive order that expanded the ban to eight countries, including six majority Muslim countries (Somalia, Iran, Libya, Syria, Chad, Yemen), and Venezuela and North Korea.

The inclusion of Venezuela and North Korea, two non-Muslim majority countries in the latest iteration of the ban was seen as an attempt by the administration to avoid accusations that the ban discriminates against people entering the US on religious grounds. This attempt proved to be inadequate in persuading a Federal Court Judge that the ban does not discriminate. In blocking Trump’s latest ban, Judge Derrick Watson stated that the latest executive order “plainly discriminates based on nationality” and that it “suffers from precisely the same maladies as its predecessor”. Following this latest block the US Justice Department has said it would appeal against the ruling.

The full decision can be found here.

Rebecca Collins is a Senior Associate and Lily Hands is a Lawyer at Allens.