On June 26, 2017, the United States Supreme Court granted the Government’s petitions for certiorari and granted, in part, the government’s applications to stay the preliminary injunctions entered by two lower courts that barred the government from suspending, for 90 days, the entry of nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen. The court also granted, in part, the government’s application to stay the additional preliminary injunctions of one of the lower courts that barred the government from suspending, for 120 days, decisions on applications for refugee status and travel of refugees into the United States under the USRAP and that barred the government’s suspension of any refugee entries into the United States in excess of 50,000 for fiscal year 2017.
The court partially granted the government’s applications to stay the above preliminary injunctions to the degree that the injunctions prevent the enforcement of the suspensions with regard to foreign nationals who lack “any bona fide relationship with a person or entity in the United States.”
The court’s ruling includes examples of relationships that remain subject to the injunctions:
For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course rather than for the purpose of evading [Executive Order 13780]. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): 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.
In addition to bona fide relationships, the Executive Order contains exceptions and authorization to grant waivers on a case-by-case basis with a non-exhaustive list of circumstances where such a waiver might be found to be appropriate.
The partial stays took effect on Thursday, June 29, 2017 and arguments for the merits of the executive order will be heard during the first session of October term 2017.
There have not been any government press releases with regard to the implementation of Executive Order 13780 in consonance with the Supreme Court’s decision. However, Reuters and several other news sources have published a document identified as a Department of State cable providing guidance to Diplomatic and Consular Posts with regard to such implementation. View Reuter’s release of the cable.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.