Note: U.S. Immigration is constantly evolving, especially now, and the information in this post reflects the time in which it was written. Therefore some information may be outdated.
On January 27, 2017, President Trump issued an Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”), which barred people from seven majority-Muslim countries for 90 days, halted the refugee program for 120 days, and banned Syrian refugees indefinitely. The original EO was far-reaching, vague, and left immigrant advocates, government agencies, travelers, and US airports franticly responding to its chaotic launch.
In the months that followed, Trump’s executive orders (which included a revision of the ban in EO 13780) were sent back and forth through federal courts, who issued injunctions on the ban, and eventually a nation-wide injunction by a Federal Judge in Hawaii, all relying primarily on the ban’s violation of the Establishment Clause in the First Amendment of the US Constitution.
On June 26, 2017, the Supreme Court granted certiorari, but at the same time, allowed a partial form of the ban to be implemented until the Court hears the merits of the case later this year. A few days later, the Department of Homeland Security (DHS) became authorized to ban refugees and travelers from what is now six affected countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) unless the foreign national can show a “credible claim of a bona fide relationship with a person or entity in the United States.”
While I applaud the Court’s grant of certiorari to review the constitutionality of the travel ban, the decision to lift part of the injunction that had prevented the federal government from implementing the travel and refugee ban using its new “bona fide relationship standard,” present serious concerns to me and my fellow immigration attorneys and immigrant advocates.
1. Implementation of the Supreme Court ruling remains either uncertain or unjustly narrow.
The Supreme Court’s attempt to limit burden on US employers, universities, and families did little to provide clarity or reduce harm to these interests. Many advocates fear that the administration will interpret the ban as broadly as it can. Indeed, the Supreme Court ruling does not exclude certain family members from the ban per se, as the Department of State (DOS) has stated, rather the Court simply noted that there must be a close familial relationship exemption and gave illustrative examples specific to the cases— not that these relationship examples were necessarily meant to be exhaustive.
DOS has released a statement that a close familial relationship is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships. All other “extended family” relationships are not considered close familial relationships and affected travelers may therefore be banned from entry.
Categorical exclusions of certain family members ignore the realities of how families are formed and can be torn apart. Particularly to countries that have been subject to war and widespread upheaval, the definition of "close family" laid out by DOS is far too narrow and will result in the division of families. DOS's definition specifically excludes grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and it ignores the quality and importance of relationships while concentrating solely on the blood relationship. It makes no sense that, for example, a grandparent or other family member who raised someone as a surrogate parent would not be considered a “close familial relationship.” These familiar relationships are commonly recognized throughout immigration law. For example, in US asylum law, the courts look beyond immediate family to determine imputed persecution - such as an uncle that was assassinated, a grandparent that was assaulted or threatened, etc.
Furthermore, Department of Homeland Security (DHS), Customs and Border Protection (CBP), and the Department of State (DOS), the agencies tasked with implemented the ban, remain unclear how some portions of the exclusions will be carried out. For example, DOS has now reversed its original interpretation excluding fiancé(e)s as “close familial relationships.”
Furthermore, for travelers and refugees who are unable to formally document a bona fide relationship, a limited number of exemptions and limited waiver opportunities may be available. However, it is still unclear whether CBP and the DOS consular officers will use appropriate discretion in applying them.
2. The definition excludes same-sex and opposite-sex co-habitating domestic partners.
Immigration attorneys and advocates are concerned that domestic partners do not count as close family, for both same-sex and opposite-sex couples. In many countries, same sex couples cannot marry and therefore rely on visa classification as “co-habitating domestic partner” under current immigration law. By eliminating domestic partners from their definition, DOS eliminates a commonly recognized family member within immigration law.
3. DOS’s definition of business relationship is unrealistically narrow and harms employers, universities, and economic activity.
On the business side, the Supreme Court carved out an exception for those entering for employment and to study or lecture at US universities, therefore having a “bona fide relationship with a US entity.”
However, a bona fide relationship would go beyond solely that between an employee and employer. For example, investors who are not employed by a US firm but want to conduct business and execute contracts should be considered bona fide—all of which affects the US economy. The ban is also feared to have a chilling effect on oversea interest in US universities.
4. Potentially too harmful to refugees.
At this time, the entire refugee program is suspended for 120 days unless the refugee can meet the “bona fide relationship” test set forth by the Supreme Court.
The distinction between “bona fide” and “non-bona fide” ties disregards the very fundamentals of the refugee program in offering sanctuary to those fleeing horrific atrocities. It also does nothing to benefit our country’s proud humanitarian traditions and further tarnishes our reputation with our international allies. Refugees are, by definition, the least “connected,” and therefore amongst the most vulnerable. It is a pillar of the international legal system that these people are the most deserving of international protection. Refugees are not seeking to the enter the US solely because they have a family member or a job here, but because it offers safety for them and their families, which for many is a luxury that has not been felt in years.
If a refugee does not have a familial relationship in the US, he or she must demonstrate a relationship with a US entity. Currently, there is little guidance on if resettlement agencies and refugee organizations will be treated as “US entities” with which a refugee can have a bona fide relationship. DOS appears to exclude valid, bona fide relationships between refugee resettlement agencies that have formal and detailed plans to resettle refugees, stating in a (recently deleted) FAQ on its website that this relationship would not be sufficient to meet the Court’s “bona fide relationship” test.
5. The exclusion has too many unforeseen consequences on certain immigrants, such as Diversity Visa applicants.
By allowing for the ban to be implemented in the interim, too many classes of immigrants face unforeseen harm. For example, Diversity Visa applicants from the affected countries who have been randomly selected, vetted, and approved for immigrant visas (green cards) must still demonstrate bona fide relationships. Without one, the applicant must wait out the 90-day suspension, where the earliest possible date their visa application would be reviewed is September 28, 2017. This leaves USCIS only two days to issue the visa before the new fiscal year begins on October 1, 2017 and the applicant is no longer eligible for the immigrant visa. Many of the immigrants who have been awarded these coveted green cards do not have family members in the US nor do they have jobs lined up before they arrive.
6. Visa applicants are already extremely vetted.
The purpose of the Executive Order is to protect America, but ignores the fact that the US has one of the most stringent and sophisticated vetting systems in the world. Immigrants are subject to highly effective background checks, incorporating smart technology, biometric data collection, and other security procedures which are already in place. Refugees especially remain the most stringently vetted group of immigrants.
Further highlighting the Trump administration’s disconnect between policy and procedure, President Trump has proposed dramatically decreasing the budget of DOS, which could jeopardize US national security interests around the world.
7. Trump’s travel ban is contrary to American values and it will not make America safer.
The United States is a nation built by immigrants and founded on the principles of due process and religious liberty. Where I live in New York City, 1 in 3 New Yorkers were born outside of the United States. Our ethnic and religious diversity is as proud a symbol of our city as the Statue of Liberty in our harbor – who has greeted immigrants for more than a 100 years. EO 13780 is merely a thinly veiled version of Trump’s campaign slogan to “keep Muslims out,” which is squarely unconstitutional and contrary to longstanding American principles.
Trump's executive orders, which were hastily drafted and based on unfounded fear, will not make America safer. The Trump administration demonstrated that it gave little thought to its implementation or to immigration laws. President Trump continues to elevate an isolationist and xenophobic campaign slogan over true national security interests, which even national security professionals agree is counterproductive and dangerous. It is a bad policy that will hurt families, research and educational institutions, businesses, and the economy. Lastly, our reputation before a global stage will continue to suffer.
We in the immigrant advocacy community stand together to defend the rights of individuals caught up in this crude and ill-conceived policy, which undermines both our country's foundational commitment to due process and our shared prosperity.
Feel free to contact our office if you have questions about the Travel Ban and the Supreme Court’s recent ruling.
Photo credit: My friend and fellow fighter, Gemma Fleming, taken during the protests at JFK Airport