Scotus turns trump’s travel ban into a de facto refugee ban

PRESIDENT DONALD TRUMP has called the Supreme Court's vote to partially lift the injunction on his executive order that bars travel from six predominantly Muslim countries “a clear victory for our national security." He celebrated that it will enable one of his most controversial policies yet to "become largely effective." There’s only one problem with that assessment: It does not, in fact, make the ban largely effective at all.

In its decision, the court exempts from the ban any “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” That, immigration experts say, includes the vast majority of people who were applying to come to the United States from those countries anyway, including family members, students, and employees of American businesses.

The travel ban is back on in theory, but in practice it will block only a small sliver of the people who seek to come to the US from those countries, most of them refugees.

Bona Fide

“The number of individuals who are going to be impacted by this, frankly, is probably pretty small because the system itself already makes it so difficult to get a visa,” says John Sandweg, former acting director of US Immigration and Customs Enforcement and former general counsel of the Department of Homeland Security.

“It’s almost impossible to be a Somali citizen and live in Somalia and walk into the US embassy and get a tourist visa,” he says. “You’re faced with incredible scrutiny and incredibly strong assumptions about ineligibility.”

According to Sandweg, most people who come to the US from the six banned countries—Iran, Sudan, Somalia, Libya, Syria and Yemen—already have to prove these “bona fide” relationships at their embassy interviews. And often, even that's not enough. The majority of them are already traveling on either immigrant visas, sponsored by their family members in the United States, or student and employment visas, all of which are covered under the exemption the Supreme Court’s decision establishes.

“People are always asking for those relationships,” Ali Noorani, executive director of the National Immigration Forum, says of the visa application process. “Particularly if there’s a relationship to a university or place of business, those visas are more likely to be granted.”

In its definition of what constitutes a “bona fide relationship,” the Supreme Court included family members as distant as in-laws, students who have been accepted to universities, people who have been offered jobs in the US, and anyone invited to lecture to an American audience. That will likely come as a relief to the many tech companies and academic institutions who argued that the ban would cause substantial harm to their businesses and communities. That argument factored substantially into lower courts’ repeated decisions to block the ban.

Complications To Come

That’s not to say the court’s decision will make it particularly easy for people hoping to come to the US for work. The Department of Homeland Security will now need to issue guidance on what constitutes a bona fide relationship and what, exactly, people need to do to prove those relationships exist. The documentation businesses already supply the government to secure work visas for their employees ought to be sufficient, Sandweg says, but what happens when those employees try to bring their families to the US?

“What are you going to bring? A letter? A birth certificate? You could see why there needs to be clear guidance established by the DHS,” Sandweg says. “There’s the potential for some chaos.”

That’s particularly true at ports of entry, like airports, where Customs and Border Patrol agents may now feel empowered to bar admission to anyone from those six countries, with no obligation to provide a clear explanation of why.
“You could argue we have a bona fide relationship, and they could argue they have specific intelligence on this individual,” Sandweg says. “It adds a lot of uncertainty to the process.”

De Facto Refugee Ban

Still, the court’s decision offers much broader protections for immigrants and travelers from those countries than the original travel ban did—that is, unless you’re a refugee. The “bona fide” relationship does not apply to non-profits and the refugees they represent. In fact, it stipulates that organizations that represent refugees and immigrants can’t merely add people to their client list to secure their admission to the US. Noorani says that means the decision more or less turns the larger travel ban into a de facto refugee ban.

All of this, of course, is subject to change after the court hears oral arguments in the case in October. But court-watchers say this decision could hint at how the court will eventually rule, suggesting it will uphold at least parts of the ban. The court generally believes that the President has the power to decide who does and doesn't get to come into the country. Whether the court will continue to exempt people with these pre-existing relationships is less clear.
“The court is clearly leaning more conservative,” Noorani says.

The travel ban itself also only extends 90 days; given that the court’s decision technically lifts the injunction on the ban, that 90-day countdown should begin today and end before it hears arguments in the case. That means that while the court's impending decision may have little bearing on the existing executive order, it will set the standard for how far the administration can push similar legislation in the future.



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