What's Going On? FAQ on Trump's Travel Ban in the Courts

It feels like it has been years since the Trump Administration released their first executive order, or Travel Ban 1.0, on January 27 that brought advocates out to airports in support of immigrants, nonimmigrants, and refugees. Since January, the Trump Administration has authored another executive order, or Travel Ban 2.0, that has been litigated all the way to the Supreme Court. With the frenzy of rulings, it’s not uncommon to be confused on where we stand today with the U.S. Refugee Admissions Program (USRAP). To help clarify these things for our community, Michigan Refugee Assistance Program (MRAP) presents: What is Going On? FAQ on Trump’s Travel Ban in the Courts.

Q: Which of the Trump Administration’s executive orders are we talking about in the courts now?

A: The second. The revised executive order issued on March 6 made a few changes to the first iteration of the January 27 executive order and is the current order under review in the courts.

Q: What was included in the Trump Administration’s revised executive order?

A: Travel Ban 2.0 banned nationals – with the exception of legal permanent residents, dual citizens, and other special visa holders – of six Muslim-majority countries for 90 days. These countries are: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraqi nationals was originally banned, but was removed after negotiations between the two countries. The order also suspended the USRAP for 120 days and slashed the number of refugee admissions from 110,000 to 50,000 for Fiscal Year 2017.  Syrian refugees were no longer indefinitely banned under the new order and religious minorities were no longer given resettlement preference. However, it did set up a process for extreme vetting and waivers for admission only on a “case-by-case” basis.

Q: Travel Ban 2.0 was blocked, though, right?

A: Yes, for a time. Both the 9th and 4th Circuit Appeals Courts blocked the implementation of the revised executive order. The Trump Administration then appealed the case to the Supreme Court.

Q: What happened in the Supreme Court decision on June 26?

A: The Supreme Court decided two things. The first was that they would consolidate the two court cases, the Hawaii and IRAP cases, and hear arguments on whether Travel Ban 2.0 followed U.S. law. The second thing they decided was to issue a partial implementation of the revised executive order until they hear arguments in October 2017.

Q: What exactly did the Supreme Court allow to be implemented in the meantime?

A: The Supreme Court decided that the Trump Administration could not bar nationals of the six-country ban or refugees who had “bona fide relationships” with a U.S. person or entity. They included that this applied to “close familial relationships” as well as relationships with U.S. entities that were “formal, documented, and formed in the ordinary course.”

Q: So, how did this decision affect the 50,000 refugee admissions cap that Travel Ban 2.0 created?

A: The Supreme Court ruling allowed the 50,000 refugee admissions cap to be implemented, except for refugees who have a bona fide relationship with a U.S. person or entity. Since the 50,000 admissions cap was reached on July 12, this means that all refugees who enter the United States must demonstrate a familial or entity relationship until the end of the fiscal year.

Q: What happened after the Supreme Court ruling?

A: The Trump Administration incorrectly implemented the ruling of the Supreme Court. The government narrowed the definition of a close familial relationship to only include parents, spouses, children, adult sons or daughters, sons-in-law, daughters-in-law, or siblings (whole, half, or step) of U.S. residents. This erroneously excluded grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, fiancées, brothers-in-law, sisters-in-law, and other extended family members. They also issued limited guidance on what constituted a relationship with a U.S. entity, but declared that refugee resettlement agencies, as well as many refugees in certain priority processing categories, did not count as a bona fide relationship.

Q: What was the U.S. District Court of Hawaii ruling on following the Supreme Court ruling?


A: The U.S. District Court of Hawaii was ruling on whether the Trump Administration was erroneously implementing the Supreme Court’s definition of a bona fide relationship.

Q: What did the U.S. District Court of Hawaii decide on July 13?

A: Judge Watkins determined that the government’s definition of close family “represents the antithesis of common sense” and he expanded the definition of family to include those that the Trump Administration originally left out. He also ruled that an assurance – or guarantee of services – from a resettlement agency that is given to refugees once they complete the refugee screening process demonstrates a bona fide relationship with a U.S. entity as it is “formal, documented, and formed in the ordinary course.” He included the refugees in the Lautenberg Amendment Program as a categorical exemption to the 120 day ban, but did not extend this to U.S.-affiliated Iraqis in the Direct Access Program or for unaccompanied children in the Central American Minors Program.

Q: Why is a “bona fide relationship” with a refugee resettlement agency a key victory in this decision?

A: There are currently around 26,000 refugees in the pipeline who have been given a promise by a resettlement agency that they will be admitted to the United States and provided with services. These refugees have completed their screening process, which usually takes on average two years to complete. Once their screening process is complete, refugees only have a short two-month window to travel before their clearances, such as a medical check up, expire. This means that they will not be able to enter the United States and may have to begin the long process again.

Q: What did the Trump Administration do following the Hawaii case?

A: The Trump Administration appealed the case directly to the Supreme Court and skipped the appellate level. They requested clarification on the definition of a “bona fide relationship.”

Q: How did the Supreme Court react on July 19?


A:  The Supreme Court once again had a split decision. First, they denied the government’s request on familial relationships, ensuring that the Hawaii Court’s expansion of the definition of family remained. However, they paused the extension of a bona fide relationship to refugee resettlement agencies until the case is appealed to the Court of Appeals for the Ninth Circuit. This means that all refugees in the pipeline who do not have family members are banned from the United States until the appellate level makes a ruling.

Q: What refugees are being admitted in the meantime?


A: Only refugees who have family in the United States are exempt from the 120-day ban. This leaves many refugees in dangerous positions.

 

Do you have other questions about the travel ban, refugee policy, or resettlement issues that you'd like answered? Please leave them in the comments!