On June 26, 2017, the United States Supreme Court, in a per curiam opinion (opinion by the whole court), granted President Donald J. Trump’s petitions for certiorari to review two Court of Appeals orders that had struck down Executive Order No. 13780 (the so-called “travel ban”) which had suspended the entry of nationals from six designated countries for 90 days. Donald J. Trump v. International Refugee Assistance Project, et al.; Donald J. Trump v. Hawaii, et al. https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf
The Court also granted in part Trump’s applications to stay the injunctions issued by the two Courts of Appeals which had prevented the enforcement of his Executive Orders 13769 and 13780. The Court said “all foreign nationals are subject” to the provisions of Executive Order 13780, except “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. For entities, the relationship must be formal, documented, and formed in the ordinary course. Students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too is a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.
Groups seeking to evade Executive Order 13780 will not be allowed to do so. 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.
An individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States will not be barred by Executive Order 13780.
On January 27, 2017, President Donald J. Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States (EO-1). EO-1 suspended entry of foreign nationals from seven countries identified as presenting heightened terrorism risks—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days. Executive officials were instructed to review the adequacy of current practices relating to visa adjudications during this 90-day period. On March 6, 2017, President Trump issued Executive Order No. 13780 (EO-2) modifying EO-1. EO–2 directed that entry of nationals from six of the seven countries designated in EO–1—Iran, Libya, Somalia, Sudan, Syria, and Yemen—be “suspended for 90 days from the effective date” of the order.
Section 212(f) of the Immigration and Nationality Act [8 USC § 1182(f)] authorizes the President whenever he finds that the entry of any aliens or of any class of aliens into the United States “would be detrimental to the interests of the United States,” to suspend the entry of all aliens or any class of aliens
or impose on the entry of aliens any restrictions he may deem to be appropriate
In International Refugee Assistance Project v. Trump, a U.S. District Court in Maryland - relying on the Establishment Clause—enjoined nationwide enforcement of all of §§ 2 and 6 of EO-2. John Doe # 1, a co-petitioner, had an Iranian wife who was seeking entry into the United States. The injunction was affirmed by the Court of Appeals for the Fourth Circuit on May 25, 2017, holding that the primary purpose of the ban was religious, in violation of the First Amendment. The government argued that the Executive Order had a “facially legitimate and bona fide” justification of protecting national security.
In Hawaii v. Trump, a U.S. District Court in Hawaii also enjoined the enforcement of EO-2. Ismail Elshik, whose Syrian mother in law was seeking entry into the United States, was a co-petitioner. On June 12, 2017, the injunction was affirmed by the Court of Appeals for the Ninth Circuit on the ground that EO-2 exceeded the President’s authority because there was no sufficient finding “that the entry of the excluded classes would be detrimental to the interests of the United States.”
The Government argued that a 90-day pause on entry is necessary to prevent potentially dangerous individuals from entering the United States while the Executive reviews the adequacy of information provided by foreign governments in connection with visa adjudications.
APPEALS COURT JUDGMENTS WILL BE REVERSED SAYS JUSTICE THOMAS
In a concurring and dissenting opinion by Justice Thomas which was joined by Justices Gorsuch and Alito, he said that the preliminary injunctions issued by the Courts of Appeals should be stayed in full because the government meets the two most critical factors in granting a stay (1) the applicant has made a strong showing that it is likely to succeed on the merits, and (2) the applicant will be irreparably injured absent a stay. He said “I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits – that is, that the judgments below will be reversed.”
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