In a 5-4 decision, the United States Supreme Court reversed the Ninth Circuit’s grant of a preliminary injunction on President Donald Trump’s September 2017 proclamation – Proclamation No. 9645, more commonly known as the “travel ban.” Proclamation 9645 restricted entry into the United States by citizens of Iran, North Korea, Somalia, Syria, Chad (subsequently removed from the list), Libya, Yemen and Venezuela. The majority held that the authority to suspend the entry of aliens into the United States flows from the clear statutory language of §1182(f) of the Immigration and Naturalization Act, which “enables the President to suspend the entry of all aliens or any class of aliens whenever he finds that their entry would be detrimental to the interests of the United States.” Continue Reading Yesterday’s SCOTUS Ruling on the Travel Ban
In a one page opinion, the United States Supreme Court remanded one of the two “travel ban” cases pending SCOTUS review. The Order remanded Trump v. International Refugee Assistance Project back to the 4th Circuit Court of Appeals because the case is now “moot” – the Court found no controversy because the challenged Executive Order 13780 “expired on its own terms.” The Court provided no opinion on the merits of the case.
In earlier posts, we also covered Trump v. Hawaii, another challenge to President Trump’s “travel bans.” This case remains pending because the challenged provisions of the March 6th Executive Order have not expired, unlike Executive Order 13780. Specifically, the March 6th Executive Order placed restrictions on the refugee program that remain in effect. The expiration date for this Executive Order is October 24th. We expect to see another iteration of the refugee restrictions or other immigration-related restrictions by October 24th.
More recently on September 24, 2017, President Trump also issued a Proclamation limiting entry into the United States from individuals from six countries – Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela. Unlike prior Executive Orders, this Proclamation is relatively more nuanced and does not contain a blanket ban on all travelers from the listed nations.
Shifting gears to the Deferred Action for Childhood Arrivals (DACA) controversy: Attorney General Jeff Sessions’ announcement last month ending DACA was followed by multiple lawsuits against the Administration. Several states including New York, Massachusetts, Washington, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, California, Maine, Maryland, and Minnesota, and D.C all filed suits against the Administration citing Constitutional challenges, among others.
An estimated 800,000 individuals relying on DACA will face uncertainty as a result of DACA’s termination. The deadlines for first time and renewal applications have passed. Therefore, barring Congressional or Executive action on the matter, no individual currently working as a result of DACA may be permitted to legally work in the United States once their work permit expires.
Independent of the legal and political debate, ending DACA is likely to have an enormous economic impact on both DACA-authorized employees and their employers. Employers are called to maintain contingency plans should those working under DACA lose their work permits, and ensure continued compliance with immigration laws.
On July 6th, we covered the United States Supreme Court decision regarding President Trump’s travel ban. That Order limited the entry of foreign nationals and refugees based on an individual’s “bona fide relationship” with an entity or person in the United States and capped the number of refugees that may enter for 2017 at 50,000. Implementation has been one of the major practical concerns in all of the immigration-related Executive Orders – the SCOTUS decision is no different.
In its June ruling, the Supreme Court ordered that individuals with a “bona fide relationship” to the United States are exempt from the Executive Order’s restrictions. Although the Supreme Court offered a general definition of what may qualify as a “bona fide relationship,” many uncertainties remain. The Trump Administration interpreted the Court’s language narrowly, applying the ban to grandparents, aunts, uncles, nieces, nephews, and other family members. Moreover, the State Department defined close family as a “parent, spouse, fiancé, child, adult son/daughter, son/daughter-in law, sibling, including step relationships.”
On Thursday, July 14, 2017, United States District Court Judge Derrick Watson for the District of Hawaii ruled that the travel ban cannot be enforced for individuals with close familial relationships with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nephews, or cousins in the United States. In its ruling, Judge Watson stated the Government’s definition of “close familial relationship…is unduly restrictive” and “represents the antitheses of common sense.” Conversely to the Trump Administration’s implementation of the Supreme Court’s ruling, Judge Watson reasoned that grandparents “are the epitome of close family members.” The District Court also ruled that any refugee who has connections to a resettlement agency in the United States is exempt from the travel ban. The District Court’s ruling could admit approximately 24,000 additional refugees into the United States.
In response to the District Court of Hawaii’s decision, on July 14, 2017, the Trump Administration filed a motion with the Supreme Court to block the District Court’s ruling and overturn the decision and filed a similar request in the Ninth Circuit Court of Appeals. In its response, the state of Hawaii urged the Supreme Court to leave the federal judge’s ruling in place. Moreover, the state of Hawaii asked for the Supreme Court to allow the lower courts to clarify the June 26th decision, whereas in its July 14th motion the Trump Administration emphasized the need for clarity to come solely from the Supreme Court. On July 19th, the U.S. Supreme Court denied the government’s motion seeking clarification of its June 26th Order, but the lower court’s order with respect to refugees was stayed pending the government’s Ninth Circuit appeal.
The take-away from the recent activity is that grandparents are exempt from the Executive Order’s restrictions, but refugees are not. The immigration community is now keeping an eye on the Ninth Circuit’s decision, and the U.S. Supreme Court’s review in October.
In an earlier post, we discussed President Trump’s second Executive Order (E.O.) aimed at restricting entry into the United States of certain foreign nationals. In a 10-3 decision, the Fourth Circuit Court of Appeals blocked President Trump’s E.O. stating that it “drips with intolerance, animus, and discrimination.” Similarly, the Hawaii decision, which ruled against the E.O., was appealed to the Ninth Circuit; that court has not yet made a ruling.
Next stop, the United States Supreme Court (SCOTUS). Although SCOTUS has not granted review of the E.O., the Justice Department has requested the Court for an urgent review. However, before SCOTUS rules on the substantive issues surrounding the E.O., the Court must first grant cert, i.e., at least four of the nine Justices must agree to review the matter. SCOTUS will review the merits of the case only if cert is granted.
Notwithstanding the passionate debate surrounding the E.O., the key legal issue here is the scope of the President’s authority, specifically in the arena of immigration and national security. Stemming from this are a plethora of other issues for the Justices to evaluate, including (1) whether President Trump’s campaign statements may be used as evidence; (2) whether the E.O. violates the Establishment Clause of the First Amendment; and (3) determining what is the appropriate precedential standard for this case.
SCOTUS review of an executive order is not unprecedented. The first of two notable examples: the 1952 case Youngstown Sheet & Tube Co. v. Sawyer, SCOTUS reviewed President Truman’s executive order, and held that the President lacked the authority to seize private steel mills during the Korean War. Second, in the 1981 case Dames & Moore v. Regan, the court ruled in favor of President Reagan’s executive orders, providing deferential review given the national security context of the Iran Hostage Crisis.
Given the confusion surrounding the E.O., litigation in multiple jurisdictions, and the political importance of the matter, SCOTUS is likely to grant review, establishing the appropriate standard and providing clarity nationwide. Haynsworth Sinkler Boyd, P.A.’s immigration team will provide further updates.
On March 15, 2017, the United States District Court for the District of Hawaii issued an Order granting a nationwide Temporary Restraining Order (“TRO”) against President Trump’s Executive Order No. 13,780 which was to be effective March 16, 2017 (the “Executive Order”). This Executive Order replaces the January 27, 2017 Executive Order. Both Executive Orders restrict the entry of foreign nationals from certain countries and refugees on a temporary basis.
The State of Hawaii and Ismail Elshikh, Ph.D. sought a nationwide TRO prohibiting the enforcement of Sections 2 (six country ban) and 6 (suspension of the U.S. Refugee Assistance Program) of the Executive Order. The Court found that the Plaintiffs met their burden by demonstrating a strong likelihood of success on the merits and granted the TRO. Specifically, the Court addressed (i) the Plaintiffs’ Establishment Clause claim, (ii) whether irreparable injury is likely to occur, and (iii) whether the balance of equities favors the Plaintiffs.
The Court addressed the three issues above in turn. First, on the issue of the Establishment Clause, the Court found that the six-country ban showed religious discrimination in violation of the Establishment Clause of the First Amendment. The government sought to demonstrate a lack of religious discrimination by stating that the six countries comprise of only 9% of the world’s Muslim population. However, the Court was not convinced – “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.” State of Hawaii and Ismail Elshikh v. Donald J. Trump, CV. No. 17-00050 DKW-KSC (D. Hawaii March 15, 2017). Second, since the Plaintiffs demonstrated a likelihood of success on the Establishment Clause claim, the Court found that irreparable harm may be presumed. Lastly, the Court considered the balance of equities and the public interest. In analyzing this last issue, the Court weighed the national security concerns against the constitutional injuries and found that the “balance of equities and public interests justify granting the  TRO.” Id.
As of now, individuals from the six countries listed in the Executive Order are subject to the same immigration rules as individuals from any other nation. The U.S. Refugee Assistance Program will remain unaffected. However, other unchallenged portions of the Executive Order such as the suspension of the Visa Interview Waiver Program will take effect as scheduled.
On March 6, 2017, President Trump signed a new immigration-related Executive Order. This anticipated Executive Order comes on the heels of his controversial January 27, 2017 Executive Order which temporarily suspended the refugee program and temporarily banned individuals from seven countries from entering the United States. The earlier Executive Order was halted in part by a Ninth Circuit Court Order, and met with widespread protests nationwide. The March 6th Executive Order repeals the January 27th Order in its entirety, and will take effect starting March 16, 2017.
The March 6th, Executive Order opened with an approximately two-page clarification of the earlier Executive Order. In response to popular outcry against the January Order and judicial disapproval of alleged religious discrimination, this Executive Order addressed the idea of a “Muslim Ban,” explaining that the earlier Order “did not provide for a basis for discrimination for or against members of any particular religion.” It further set forth the Administration’s policy objectives surrounding national security and cited a 2016 Department of State report justifying a temporary ban for individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen on the basis of national security.
With this backdrop, the March 6th Executive Order’s key points are as follows:
- 90-day ban on individuals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraq was left off the list this time. The Administration reasoned that a ban on Iraqis is unnecessary given the “close cooperative relationship between the United States and the . . . Iraqi government . . . .” While Iraq is not subject to the 90-day ban, Section 4 of the Order calls for a “rigorous evaluation” of applications by Iraqi nationals. The remaining countries present an “unacceptably high” threat.
- The Executive Order only applies to foreign nationals of the designated countries who:
(a) are outside the United States on March 16, 2017;
(b) did not have a valid visa at 5:00 P.M., eastern standard time on January 27, 2017; and
(c) do not have a valid visa on March 16, 2017.
- There are several notable carve-outs narrowing the Executive Order’s scope. The Executive Order does not apply to: Green Card holders, dual nationals when traveling on a passport issued by a non-designated country, foreign nationals who have been granted asylum and certain others who hold select visas.
- Immigration officials are permitted to make case-by-case determinations to issue visas or permit the entry of foreign nationals for whom entry is otherwise suspended. The foreign national must demonstrate “undue hardship” and that the foreign national’s presence would not pose a threat to national security. The Order outlines instances in which such a waiver may be appropriate, including when the foreign national:
(a) has been previously admitted for work, study or other long-term activity, and seeks to re-enter the United States to resume this activity;
(b) seeks to enter for significant business or professional obligations;
(c) seeks to visit a close family member who is lawfully in the United States; or
(d) seeks urgent medical care or has a special circumstance.
- The United States Refugee Assistance Program (USRAP) is temporarily suspended for 120 days, and the 2017 refugee numerical cap is set at 50,000 refugees. However, the suspension does not apply to those who have been formally scheduled for transit by the Department of State.
- The Visa Interview Waiver Program is suspended, meaning that in most instances, a non-immigrant visa applicant will have to undergo an in-person interview.
- Several other provisions from the January Executive Order remain in place including the visa reciprocity review and the data collection directives in Section 10 and 11 of the new Order, respectively.
The Executive Order is clear that any immigrant or non-immigrant visa issued before March 16, 2017 shall not be revoked pursuant to the new Order. While this Executive Order is far more specific than the January Order, the implementation by the various agencies will be worth watching to understand its practical impact. Travelers are well-advised to ensure that all immigration-related documentation is in order, account for delays when traveling to and from one of the six listed countries, and maintain a contingency plan in case of unforeseen events in transit.
Haynsworth Sinkler Boyd will continue to monitor further developments in this dynamic immigration climate.