President Trump’s Second Executive Order acted to limit the entry of foreign nationals and refugees into the United States.
Thereafter, the Fourth and Ninth Circuits granted preliminary injunctions barring the enforcement of the Executive Order specifically as related to Section 2(c), 6(a), and 6(b). On June 26, 2017, the United States Supreme Court in Trump v. International Refugee Assistance Project granted cert to the Government regarding the injunctions. The Court issued a unanimous opinion granting in part the Government’s applications to stay the lower courts’ injunctions.
Section 2(c) suspends the entry of nationals from Iran, Libya, Somalia, Sudan and Yemen for 90 days from the effective date of the Order. The Supreme Court stayed the injunctions where foreign nationals lack “any bona fide relationship with a person or entity in the United States.” However, where individuals have a credible claim of such a relationship Section 2(c) may not be enforced against them. A “bona fide relationship” may consist of: (1) close familial relationships; (2) formal and documented entity relationships formed in the ordinary course of business; (3) students admitted to American universities; (4) employment with an American company; or (5) a lecturer invited to address an American audience.
The Court reasoned that individuals from one of the six listed countries who lack a bona fide relationship in the United States may be denied entry based on the Second Executive Order. The Justices found that the Government has a compelling interest in preserving national security, and that the Executive’s authority to enforce the suspension is at its peak when there is no tie between the individual and the United States.
Section 6(a) suspends decisions on applications for refugee status and travel for refugees into the United States under the USRAP for 120 days following its effective date. The Supreme Court left the injunctions in place as to refugees that have credible bona fide relationships with American individuals or entities. On the other hand, due to the Government’s compelling interest in national security, if the refugee does not have such a connection, then Section 6(a) stands.
Section 6(b) suspends any entry of refugees in excess of 50,000 in 2017. The Court ruled where a refugee has a credible relationship with a person or entity in the United States, they may not be excluded even if the 50,000 person refugee cap has already been reached or exceeded.
While the United States Supreme Court provided some clarity through this decision, many unanswered questions remain. Most notably, immigration attorneys now seek to understand the contours of what constitutes a “bona fide relationship” for immigration purposes. The Court provided some examples of a “bona fide relationship,” however, not every relationship, for example, is likely to fall neatly into one of the examples provided. Further, as with the prior immigration Executive Orders, implementation remains a major concern. In the days following the Court’s decision, Department of Homeland Security is likely to issue guidelines which seek implements the changed guidelines.
Looking forward, the Government’s case will be heard on the merits in the Supreme Court’s first session of October 2017. Moreover, the parties have been directed to address whether the challenges to 2(c) have become moot on June 14, 2017 as this was its effective date before President Trump issued a memoranda to the Executive Branch extending the effective date until the “injunctions are lifted or stayed.”