U.S. Supreme Court lifts travel ban injunctions, but only for certain foreign nationals

In one of its last actions of this term, the United States Supreme Court ruled on the injunctions imposed by both the Fourth and Ninth Circuits, while also deciding to hear the substance of the lawsuits in the fall term.

The case before the Fourth Circuit, International Refugee Assistance Project v. Trump, centered on whether the president’s revised, March 6, 2017 Executive Order, was motivated by a primarily religious purpose, such that it was a violation of the First Amendment. The appellate court determined that it did have an impermissible religious animus, and granted a nationwide injunction. We described these and other details of the ruling when it came out in late May.

Similarly, in the case State of Hawaii, et al. v. Trump, on June 12, 2017, the Ninth Circuit prevented most of the president’s revised travel ban from taking effect. As we explained at the time, the court found that the President had exceeded his statutory authority to control immigration.

The government appealed both determinations to the high court, which issued its highly anticipated opinion on Monday addressing what is commonly referred to as “§2(c)” in the revised Executive Order. That section calls for the “temporary suspension of entry for nationals of countries of particular concern during review period.” The Court, disagreeing with those below, said that §2(c)’s enforcement, “with respect to foreign nationals who lack any bona fide rela­tionship with a person or entity in the United States,” is permissible: “[d]enying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national.”

But the Court left the injunctions in place for the plaintiffs, and others that are “similarly situated.” Spelling out its intentions, the Court stated the following:

“In practical terms, this means that §2(c) may not be en­forced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States…For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship…The stu­dents from the designated countries who have been admit­ted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American com­pany or a lecturer invited to address an American audi­ence.”

In contrast, someone who enters into a relationship simply to avoid running afoul of §2(c) is not entitled to the court’s protection: “For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

Likewise “refugees who lack any such connection to the United States… the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”

Notably, the Court declared that despite the 50,000 person cap on incoming refugees, an individual seeking entry “who can credibly claim a bona fide relationship with a person or entity in the United States” is entitled to such entry.

As the New York Times pointed out, what constitutes a “bona fide relationship” is still murky despite the Court’s examples. A vacationer with reservations at a hotel in America is just one unclear circumstance.

Justices Thomas, Alito and Gorsuch concurred in part. Justice Thomas, who wrote the partial concurrence, asserted that the it would have been reasonable to keep the injunctions in place only for the parties in the cases, but keeping them also for “an unidentified, unnamed group of foreign nationals abroad” went too far. He contended that it would be unworkable for the government to resolve whether an individual’s connection with the United States was a sufficient “bona fide relationship,” and would not only subject the government to a contempt finding, but “invit[e] a flood of litigation” until the merits are resolved.

Oral arguments for both suits are scheduled for October.

The Court issued several other decisions this week, both within and outside of the immigration context, bringing an end to this term. We will blog about these cases shortly.