Travel Ban 3.0 Supreme Court Decision: What Does it Mean?
On June 26, the United States Supreme Court released its decision in the Trump v. Hawaii, upholding the legality of President Trump’s Muslim Ban. In a 5-4 decision, the Supreme Court found that President Trump’s third effort to block the nationals of severely predominantly Muslim countries from entering the United States did not violate either the Immigration and Nationality Act (INA) or the Constitution of the United States. The Court held that Congress, through the INA, has provided the President with a broad grant of authority to suspend the entry of any class of non-citizens. The Court also rejected the argument that Muslim Ban 3.0 does in fact violate the Constitution’s Establishment clause because it is motivated by anti-Muslim animus.
History of Travel Ban 3.0
On September 24, 2017, President Donald Trump issued a Presidential Proclamation that indefinitely banned travel to the United States of America for six Muslim-majority countries which consisted of Chad, Iran, Libya, Somalia, Syria, and Yemen—and North Korea. It also banned certain government officials from entering as well as their family members from Venezuela. The proclamation is President Trump’s third attempt to implement his campaign-promise to ban the entry of Muslims in the United States.
On October 17, 2017, the federal district court in Hawaii issued a nationwide injunction blocking enforcement suspensions under Section 2, except those pertaining to North Korea and Venezuela. On December 22, 2017, the Ninth Circuit Court of Appeals upheld the district court’s decision, finding that the ban was inconsistent with INA § 202(a)(1)(A), the nondiscrimination clause, which says “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” The court limited the injunction to those “with a credible bona fide relationship with the United States” and then stayed its own decision pending a decision by the Supreme Court.
A second court case blocking the Proclamation was issued by a federal district court in Maryland, and upheld in a Fourth Circuit decision dated February 15, 2018. The Fourth Circuit focused on the constitutional arguments. The court held that the Proclamation likely violates the Establishment Clause of the Constitution. It found that the Proclamation is “unconstitutionally tainted with animus toward Islam.” The appellate court further found that “an objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation—to exclude Muslims from the United States. In fact, it is hard to imagine how an objective observer could come to any other conclusion when the President’s own deputy press secretary made this connection express.” The court similarly limited the injunction to “foreign nationals with a bona fide relationship with an individual or entity in the United States,” and also stayed its own decision pending the Supreme Court’s decision. Despite the robust activity in the district and appellate courts the Supreme Court issued twin orders on December 4, 2017 to reinstate the full version Travel Ban 3.0. This meant that the Proclamation remained in effect while the Supreme Court decision was pending. On April 10, 2018, the White House announced that Chad will be removed from the travel ban after finding that the country met “baseline” security standards.
The Supreme Court’s June 26, 2018 grants the President power under Section 1182 (f) of the INA, under specific circumstances, to suspend the entry of certain classes of noncitizens. The Court held that the Muslim Ban falls within the President’s powers under that provision of the INA because the language of the statute “grants the President broad discretion.” According to the Court, the Muslim ban was a lawful exercise of that discretion because President Trump has determined that the entry of noncitizens from predominantly Muslim countries “would be detrimental to the national interest.” The INA also has a provision (Section 1152 (a) (1) (A)), that prohibits the government from discrimination against individuals based on nationality when issuing immigrant visas. On the other hand, the Court found that this non-discrimination provision is limited to the visa issuance process and does not apply to the determinations of whether a noncitizen is admissible. Therefore, because the Muslim Ban applies to admissibility determinations (and not visa issuance), the non-discrimination provision does not apply.
The Majority Opinion and Issues before the Supreme Court
The Majority Opinion by Chief Justice Roberts addressed first that the plaintiff’s statutory claims, the Chief Justice said, “The Proclamation is squarely within the scope of the Presidential authority under the INA.” He described 8 U.S.C. §1182(f) as a “comprehensive delegation” which “exudes deference to the President in every clause.” Within the statute he found authority for the President to determine whether, when, who, and on what conditions to exclude foreign nationals. The Chief Justice dismissed arguments made by plaintiffs and the dissent that Proclamation is inconsistent with the INA. He found, for example, that § 1152(a)(1)(A), which prohibits discrimination based on race, sex, or nationality in the issuance of immigrant visas, did not conflict with the Proclamation because the INA clearly distinguishes “admissibility determinations and visa issuance. The Court primarily decided two important questions: 1) whether this travel ban order falls within the President of the United States’ authority over immigration, which allows the President to suspend entry of immigrants for a period of time; and 2) whether the Proclamation violates the Constitution’s Establishment Clause, which bars the government from favoring one religion over another.
What does this mean?
The Supreme Court of the United States’ ruling means that the full version of the Muslim Ban is likely going to be in effect nationwide across the country. Although the case is now going back to the lower courts for additional litigation, the Supreme Court has reversed the Ninth Circuit’s holding and therefore, the nationwide injunction will likely be dissolved in the coming days. If you are subject to the ban, you may be able to enter the country through the waiver process. According to Section 3 of the Proclamation, a waiver may be granted if denying entry would cause the foreign national undue hardship, entry would not pose a threat to national security or public safety, and entry would be in the national interest. Waives may be granted on a case-by-case basis depending on the individual’s circumstances. Please feel free to contact us if you have any questions.
Frequently Asked Questions:
Q: If I am already in the U.S., can I travel outside the country and then return?
A: Nationals from the banned countries should consult with an immigration attorney before making travel plans. By its terms, the ban exempts some nationals, such as legal permanent residents or those with a valid visa issued before October 18, 2017. Other nationals may be able to apply for a waiver, as detailed in Section 2 of the Proclamation. However, in practice, these waivers may be extremely difficult to obtain.
Q: Am I eligible for a waiver?
A: To obtain a waiver, an applicant must demonstrate she would suffer undue hardship if she were denied, that her entry would not pose a threat to national security, and that her entry is in the national interest. This is a very difficult standard to meet. Although more than 8,400 people have applied for a waiver, the Department of State has indicated that as of May 31, 2018, only 768 waivers were cleared. Of these 768, it is not known how many applicants received a visa.
Q: How do I apply for a waiver?
A: Waiver requests should be given to the Consular officer during a consular interview. They may also be mailed or emailed to a Consular post if a case is stuck in administrative processing. For detailed instructions on how to prepare a waiver request packet, or for assistance, please consult with an immigration attorney.
Where Can I Find More Resources?
For information about your rights see this fact sheet from the American Civil Liberties Union (ACLU). More information and resources are available through Muslims Advocates, the American-Arab Anti-Discrimination Committee (ADC), and the American Immigration Lawyers Association (AILA).
- AILA Practice Alert
- Practice Pointers on applying for a waiver for individuals impacted by the Travel Ban
What Does the Travel Ban Mean for Employers?
Employers should caution their workers from the applicable countries about any unnecessary travel outside the United States. Under the travel ban, immigrant visas have been suspended entirely for Iran, Libya, North Korea, Syria, Yemen and Somalia. Some government officials from Venezuela will also be prohibited from obtaining immigrant visas.
Foreign nationals may be cleared if they can prove that they have a relationship with a person or entity in the United States. Job candidates with offers from U.S. businesses and students with admissions offers from U.S. school might be cleared.
Based on the uncertainty caused by the travel ban, some recruiters have said that companies are outsourcing more work abroad or sending employees to other countries. Wolfsdorf Rosenthal’s Global Immigration Section is able to assist if your company would like to discuss options to send employees overseas.
It is important for employers to note that the travel ban allows people from some restricted nations to continue to enter the United States if they already have a valid visa or permanent residency in the country, but they may be subject to additional screening.
Note: This post does NOT constitute legal advice.