The Current Status of the U.S Travel Ban

On June 26, 2017, the U.S Supreme Court delivered its landmark ruling on whether the interim injunction preventing President Trump from implementing his Executive Order on Immigration should be upheld pending a trial of the legality and constitutionality of the Executive Order in October 2017 or discharged.

As readers will recall, Executive Order 13780, entitled Protecting the Nation from Foreign Terrorist Entry into the United States, prohibited citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen without existing U.S visas, lawful permanent resident status, U.S citizenship or dual nationality from entering the US for a period of 90 days, pending the introduction of new “extreme vetting” procedures.

In its majority opinion, the U.S Supreme Court discharged the interim injunction preventing implementation of President Trump’s Executive Order on immigration in part, pending trial of the legality of the Executive Order in the fall. In effect, the Supreme Court allowed President Trump to implement the core provisions of his Executive Order, albeit only in respect of individuals who lack a “bona fide relationship with any person or entity in the United States”.

The U.S Supreme Court noted that such a relationship would exist where a visa applicant was, inter alia, a “close familial relative” of a U.S citizen, the holder of a U.S university place or the holder of a U.S job offer.

At the time of writing, citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen without an existing valid U.S visa, lawful permanent resident status, U.S citizenship or dual-nationality are prohibited from entering the U.S, in the absence of a bona fide relationship with a person or entity in the U.S. Such individuals are ineligible to apply for U.S immigrant and non-immigrant visas.

A trial of the legality of the Executive Order is scheduled to take place in the U.S Supreme Court in October 2017.

The Interpretation of the Judgment of the U.S Supreme Court

Critically, only citizens of the aforementioned countries with “a bona fide relationship with any person or entity in the United States” are eligible to apply for visas to enter the U.S. For immigrant visa applicants seeking entry to the U.S on the basis of U.S family connections, only “close familial relationships” constitute a “bona fide relationship” within the meaning of the U.S Supreme Court’s judgment.

 

Therefore, the eligibility of a citizen of one of the above named countries to gain an immigrant visa to enter the U.S on the basis of U.S family connections hinges solely upon how one interprets the phrase “close familial relationship”. Unfortunately, there has been much debate and confusion regarding the type of relationships that constitute a “close familial relationship” for the purpose of the U.S Supreme Court’s judgment.

Since the U.S Supreme Court issued its opinion on June 26, 2017, the Trump administration has defined the term “close familial relationship” to include only those individuals who already have a parent, spouse, fiancé, son, daughter, son-in-law, daughter-in-law or sibling in the US.

However, on July 13, 2017, a Federal Judge in Hawaii ruled that the term “close familial relationship” included the grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins of people in the US.

District Judge Derrick Watson stated that “Common sense…dictates that close family members be defined to include grandparents. Indeed grandparents are the epitome of close family members”. In his opinion, the Government could not enforce the core provisions of the travel ban against any foreign national who is a grandparent, grandchild, brother-in-law/sister-in-law, aunt/uncle, niece/nephew or cousin of a U.S citizen. District Judge Watson’s interpretation of the U.S Supreme Court ruling dated June 26, 2017 is widely perceived to increase the number of citizens from the named countries who are potentially admissible to the U.S.

A Return to the Supreme Court?

On July 14, 2017, the Acting Solicitor General Ken Wall filed a motion at the U.S Supreme Court on behalf of the U.S Department of Justice, requesting clarification of the scope of the term “bona fide relationship”. In the alternative, the U.S Department of Justice sought a stay of the implementation of District Judge Watson’s ruling, pending an appeal of the judgment.

In its motion, the U.S Department of Justice alleged that District Judge Watson’s interpretation of the term “bona fide relationship” “distorts [the U.S Supreme Court’s] decision and upends the equitable balance [the] Court struck”. The State of Hawaii has until midday on July 18, 2017 to respond to the motion. We will endeavor to provide updates.

Davies Legal

At Davies Legal, we offer advice and representation in relation to all areas of U.S immigration law including, inter alia, applications for immigrant and non-immigrant visas, applications for waivers of inadmissibility and applications to change or adjust status. We offer a diligent, efficient, fully-flexible service, at a transparent fixed fee and undertake to respond to all urgent client communications within four hours. Call now for further information regarding our services and for a free, no obligation price quotation.

NB: This article is provided for information purposes only and should not be construed as advice. If you are unsure of your eligibility to apply for a U.S visa and/or your eligibility to enter the U.S, you should discuss the unique circumstances of your case with a licensed U.S immigration attorney.

Published: 26th July 2017