On June 26, 2018, the Supreme Court rendered a decision in Trump v. Hawaii, upholding Travel Ban 3.0 by a vote of 5 to 4, allowing the travel ban to remain in effect. Writing for the majority, Chief Justice John G. Roberts Jr. said that Mr. Trump had ample statutory authority to make national security judgments in the realm of immigration and rejected a constitutional challenge to the provisions of Travel Ban 3.0.
Chief Justice Roberts acknowledged that President Trump had made many statements concerning his desire to impose a “Muslim ban.” However, he stated that the President’s comments must be balanced against the powers of the President to conduct the national security affairs of the nation, relying on the provisions of the INA, which vest the President with the authority to restrict the entry of aliens whenever he finds that their entry “would be detrimental to the interests of the United States.” 8 U.S.C. §1182(f). Chief Justice Roberts noted that these provisions exude deference to the President and observed that the Supreme Court previously ruled that §1182(f) vests the President with “ample power” to impose entry restrictions. According to the majority opinion, Travel Ban 3.0 is “expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” The majority opinion concluded that the presidential proclamation (Travel Ban 3.0) was neutral, justified by national security concerns, and as such, constituted a lawful exercise of the President’s broad discretion granted to him under §1182(f) of the INA.
The court’s liberals denounced the decision. In a dissent from the bench, Justice Sonia Sotomayor stated that the decision was no better than Korematsu v. United States, the 1944 decision that endorsed the detention of Japanese-Americans during World War II, which was officially overruled by Trump v. Hawaii. By upholding the travel ban, Justice Sotomayor said, the court “merely replaces one gravely wrong decision with another.”
Background
The “travel ban” refers to a series of three executive actions (the first two taking the form of executive orders, and the third issued as a presidential proclamation) which restrict the entry of specified categories of non-U.S. nationals (aliens) into the United States.
On September 24, 2017, President Trump issued a proclamation, also known as the third travel ban (Travel Ban 3.0), titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats.” Previously, the Department of Homeland Security (DHS) conducted a worldwide review using a set of criteria to evaluate each foreign countries’ information-sharing practice and policies, as well as each governments’ stability and capabilities. At the end of this review, the Trump administration blacklisted eight countries whose information sharing practices were deemed “inadequate” or were raising “special concerns” – Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen – six of them predominantly Muslim. Chad was later removed from the list.
Like with two earlier versions of the travel ban, Travel Ban 3.0 was challenged in federal courts. In Hawaii v. Trump, No. 17-15589 (9th Cir. 2017), the Ninth Circuit affirmed the district court’s decision which granted a nationwide injunction barring enforcement of the restrictions under Travel Ban 3.0, finding that the ban was inconsistent with certain nondiscrimination provisions of the Immigration and Nationality Act (INA). The court limited the injunction to those “with a credible bona fide relationship with the United States” and then stayed its own decision pending a decision by the Supreme Court – the nation’s highest court.
In December 2017, the Supreme Court allowed the ban to go into effect while legal challenges moved forward. In January 2018, the Supreme Court agreed to hear a challenge to Travel Ban 3.0. The hearing began on April 25, 2018.
Entry / Travel Restrictions under Travel Ban 3.0
In its latest version, Travel Ban 3.0 which remains in full effect bars entry indefinitely to the following groups of aliens (subject to certain waivers and exceptions described in the proclamation) seeking entry as immigrants or nonimmigrants:
- Nationals of Yemen and Libya: all immigrants and nonimmigrants seeking entry on B-1 and/or B-2 temporary visitor visas;
- Nationals of Syria and North Korea: all immigrants and nonimmigrants;
- Nationals of Somalia: all immigrants; additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny;
- Nationals of Iran: all immigrants and nonimmigrants, except nonimmigrants seeking entry on valid student (F and M) or exchange (J) visas; and
- Nationals of Venezuela: officials of certain government agencies, and the immediate family members of such officials, seeking entry on B-1 and/or B-2 temporary visitor visas.
Nationals of Chad were initially subject to Travel Ban 3.0, but the President issued a new proclamation on April 10, 2018 terminating the travel restrictions imposed on nationals of Chad effective April 13, 2018.
Impact of Travel Ban 3.0 on Visa Issuance
Under Travel Ban 3.0, U.S. embassies and consulates will deny the designated visas to the categories of nationals from the seven designated countries (with few exceptions). From these countries, any individual who may be able to obtain a visa will still have to face extensive screening and vetting process to enter the United States.
Exceptions
The travel restrictions under Travel Ban 3.0 do not apply to the following individuals:
- Any lawful permanent resident of the United States (green card holder);
- Any foreign national who is admitted to or paroled into the United States on or after the applicable effective date of Travel Ban 3.0 (which is currently in effect);
- Any foreign national who has a document other than a visa — such as a transportation letter, an appropriate boarding foil, or an advance parole document — valid on the applicable effective date of Travel Ban 3.0 or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission;
- Any dual national of one of the seven designated countries when the individual is traveling on a passport issued by a non-designated country; e.g. a foreign national born in Iran with a Canadian passport who uses the Canadian passport on entry;
- Any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; and
- Any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Visas That Are Already Issued
In addition, the travel restrictions under Travel Ban 3.0 do not apply to foreign nationals who were already issued a visa before its effective date. Travel Ban 3.0 expressly states that visas issued before its effective date will not be revoked. Therefore, foreign nationals from the restricted countries who already obtained a visa but have yet to enter the United States are not subject to the travel restrictions, provided their visa has not expired.
Waivers
The entry restrictions of Travel Ban 3.0 may be waived on a case-by-case basis for individuals impacted by the ban if a consular officer or U.S. Customs and Border Protection (CBP) official determines, in their discretion, that the applicant meets each of the following three criteria: (1) denying entry would cause the foreign national undue hardship; (2) entry would not pose a threat to the national security or public safety of the U.S.; and (3) entry would be in the national interest.
The waiver process set forth under the Travel Ban currently remains elusive for many visa applicants, with only 809 visa applicants having been cleared by the U.S. Department of State for waivers between December 8, 2017 and June 15, 2018.
Some of the situations where a waiver may be appropriate include:
- The foreign national has previously been admitted to the U.S. for a continuous period of work, study, or other long-term activity, is outside the U.S., seeks to reenter the U.S. to resume that activity, and the denial of reentry would impair that activity;
- The foreign national has previously established significant contacts with the U.S. but is outside the U.S. for work, study, or other lawful activity;
- The foreign national seeks to enter the U.S. for significant business or professional obligations and the denial of entry would impair those obligations;
- The foreign national seeks to enter the U.S. to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a U.S. citizen, LPR or lawful nonimmigrant, and the denial of entry would cause undue hardship;
- The foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by special circumstances;
- The foreign national can document that he or she has provided faithful and valuable service to the U.S. Government;
- The foreign national is a Canadian permanent resident who applies for a visa at a location within Canada; etc.
