Supreme Court Hands Border Agents Potentially Confusing Task In Partially Lifting Freeze On Travel Ban

The Supreme Court announced yesterday that it would hear the appeal of the government regarding Executive Order 13780, the second of the alleged ‘Muslim travel ban’ executive orders.  In the interim, it significantly cut down the injunctions that lower courts had imposed on the executive order.  Three of the conservative court judges (Alito, Gorsuch, Thomas) wanted the ban upheld in its entirety until the case could be heard in October, saying the compromise decision reached yesterday by the court was unworkable, because it will overly burden the Department of Homeland Security and Immigration and Customs Enforcement (ICE). However, their position was not adopted by the full court.

The court, including all of the justices considered moderate and liberal, did not want this travel ban circumvented by people with no connection to the U.S.  They specifically made the point that coming into the U.S. if you’re not a citizen or green card holder is not a right.  The ability to enter the U.S. only becomes a consideration if denying it would in some way harm a U.S. interest, either of a U.S. citizen, permanent resident or organization.  Otherwise, “the balance tips in favor of the Government’s compelling need to pro­vide for the Nation’s security.”

Thus the court decision written by the majority of the Justices struck down most of the injunction blocking the travel ban, leaving it in place to prevent immigration officials from stopping those people with some connection to the U.S. from entering the country. The court order did this not only for people wishing to travel to the U.S., but also for refugees.  While section 3(c) of the second executive order contained some exceptions to the ban on regular travel for people with connections to the U.S., the order contained no such provisions for refugees that might have a connection to the U.S.  However, with this injunction, the majority extended that same requirement for U.S. Customs and Border Protection officers to make case by case decisions for refugees making it possible for them to enter the United States if they have a connection to the country, such as a close family member, as they will for people otherwise wanting to travel to the U.S. from the “Muslim ban” targeted countries.

More specifically, border officials will have to determine whether an applicant has a bona-fide connection to the U.S, such as, for example, a family member, and allow entry to those with such connections “on peril of contempt.”  Justices Alito, Gorsuch and Thomas would have preferred that the entirety of the Executive Order be allowed to operate until the Supreme Court hearing because of the various exceptions that the decision imposes on border officials. They feared an outpouring of litigation resulting from this process of determining if exceptions to the order exist at the port of entry.

This is not a complete victory for Donald Trump. However, this is a win for him, because the second executive order will accomplish most of what it was designed to do. It is important to note that the majority of the court also laid out what they would consider to be an inappropriate connection to the U.S., that in reality would only be an attempt to circumvent the ban.  “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.”

One thing that is important to note about the decision is how the timing will now proceed. The travel ban itself will last for 90 days.  As this is still June, that means that by the time 90 days has passed, it will be September.  Thus the travel ban will expire before the Supreme court even hears the case.  Moreover, the refugee ban, which lasts 120 days, will expire in October.  By the time this case is heard in full before the Supreme Court, therefore, the entire Executive Order may be a moot point.

Nonetheless, this decision is an indication of how the Supreme Court will consider the matter in October if the case is heard then. It appears the Court is more sympathetic to Trump’s order than were the lower courts. Meanwhile, most immigration attorneys expect that the court’s decision will create a lot more confusion and delays at ports of entry as immigration officials decide who qualifies and who does not under the new court-ordered arrangements.

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