June 27, 2018
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.”
According to the Court, §1182(f) “exudes deference to the President in every clause” and “entrusts to the President the decisions whether and when to suspend entry . . . whose entry to suspend . . . for how long . . . and on what conditions.” The sole requirement set forth in this section is that the President find that the entry would be detrimental to the interests of the United States, a requirement that the President fulfilled by ordering the Department of Homeland Security and other agencies to conduct a comprehensive evaluation of every country’s compliance with the information and risk assessment baseline. Using this information, Proclamation 9645 was issued setting forth findings that describe how deficiencies in the practices of certain foreign governments deprive the United States of sufficient information to assess the risks those countries’ nationals pose to the United States. Proclamation 9645 then set forth country-specific restrictions that would “encourage cooperation given each country’s distinct circumstances” and would be reviewed every 180 days and removed upon full compliance with information-sharing practices.
While the majority stated the text of the statute was clear and further analysis was not necessary, it did note that the “travel ban” was similar to those enacted by previous presidents to retaliate for conduct by governments that conflicted with United States foreign policy interests, including: Executive Order No. 13662 by President Obama, suspending entry of Russian nationals after Russia’s annexation of Crimea; Proclamation No. 6958 by President Clinton, suspending entry of Sudanese nationals after the country’s refusal to comply with U.N. resolutions; and Proclamation No. 5517 by President Reagan, suspending entry of Cuban nationals to apply pressure on the Cuban government.
The Court held that the “ban” did not violate the Establishment Clause of the First Amendment – which prohibits Congress, in part, from making any law “respecting an establishment of religion or prohibiting the free exercise thereof”– because the statute was “expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Additionally, while five of the seven nations in the Proclamation do have Muslim-majority populations, the Court noted that the policy covers just 8% of the world’s Muslim population and is limited to countries previously designated by Congress and the Obama administration as posing national security risks.
The opinion expressly stated that the Court makes no view on the soundness of the policy, but because there is not a likelihood of success on the merits of the constitutional claim, the grant of preliminary injunction is reversed and the case is remanded to the lower courts for further proceedings.
In practice, what does this mean for individuals from the listed countries?
- Iran: suspends entry for immigrants and non-immigrants, with exceptions for certain visa types – students and exchange visitors.
- Libya: suspends entry for immigrants and non-immigrants who seek entry on business, tourist and business/tourist visas.
- North Korea: suspends entry for all immigrants and non-immigrants.
- Somalia: suspends entry of individuals as immigrants, but non-immigrant visas, while not suspended are subject to increased scrutiny.
- Syria: suspends entry for all immigrants and non-immigrants.
- Venezuela: suspends entry for certain government officials only.
- Yemen: suspends entry for immigrants and non-immigrants who seeking entry on business, tourist and business/tourist visas.
Proclamation 9645 enumerates waivers available on a case-by-case basis and based on undue hardship, that entry would not pose a national security threat and that entry would be in the national interest.