Travel Ban Back in Effect – With Rules As Stable As Quicksand

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Here’s where we stand for now with the travel ban:

Nationals from six majority Muslim countries are barred for 90 days.  Those countries include Syria, Sudan, Somalia, Yemen, Iran, and Libya.

Refugees from anywhere are barred from entering the US for 120 days, and absent special circumstances, the total number of refugees is capped at 50,000. That number is half of what it was last year, and has already been reached.

There is one exception, however: the ban does not apply to someone who has a “bona fide relationship with a person or entity” in the United States.  Standard immigration rules and procedures apply in that situation.

Things did not always look this way.  The underlying Executive Order issued on January 25 has gone through two White House revisions, multiple agency interpretations, and a constant volley of legal challenges played out in courts across the country.  And we’re still not done.  The Supreme Court addressed the ban twice already, but won’t decide whether it is constitutional until next term.

This uncertainty is holding an untold number of people hostage to the possibility they’ll forever be separated from their families in the US, or denied the new life they were promised, far from the deprivations of a refugee camp or the ravages of a war zone.

Seven months have passed since the original Executive Order went into effect, and a final ruling on its constitutionality might come as late as next May.  In the meantime, background checks will expire. Travel windows will close.  Indeed, many already have.  In the end, many people will have their right to enter the US affirmed, but will have lost the opportunity to do so.

Here’s a quick snapshot of how we got from A to B.

The original Executive Order temporarily barred entry for all refugees, and nationals of seven Muslim countries – the six countries mentioned above, plus Iraq.  It banned refugees from Syria indefinitely.  The ban applied equally to US Permanent Residents, visa holders, and visa applicants. “Religious minorities” were exempt though, which in practice meant that Christians could come in, but Muslims could not.  The ban went into effect immediately, without customary advance notice to consulates abroad or customs and immigration officials at US ports of entry.  Upon receiving word for the Order, the State Department immediately cancelled tens of thousands of visas.

Overnight, US airports became a holding ground for foreign travelers who learned upon landing that the law had changed mid-flight.  Among them were Iraq and Afghan nationals admitted under a special visa program aiding people who worked for the US military during the wars in their home country.  A grandmother from Iran was detained at LAX, even though she held a travel visa to visit her children, who happen to be US citizens.  Two brothers, US permanent residents originally from Yemen, hoped to reunite with their father, a US citizen living in Michigan.  Instead, they were handcuffed at Dulles, and forced to surrender their immigration documents before being put on a plane to Ethiopia.

Lawyers were initially prevented from even speaking to people who needed their help, but eventually secured relief in some of these cases.  The fate of other travelers who were turned back remains unknown.

Those first days were marked by chaos and uncertainty, because who stayed and who went back turned for the most part on where and when the plane landed. Emergency orders in Massachusetts and New York stayed parts of the Executive Order, but only in their respective jurisdictions.  Plus, each case produced different outcomes, depending on exactly what happened and who was involved.  Courts would eventually have to address whether the Constitution’s executive authority allowed the President to target Muslims at the border, but the question until then was simply whether people being detained or turned back experienced an “immediate and irreparable harm.”

On February 3, a judge in Seattle, Washington halted the entire Executive Order nationwide.  US gateways resumed normal operations, and Consulates abroad continued processing visa applications from affected countries.  Refugee agencies authorized by the Department of State to resettle new arrivals reaffirmed their readiness and commitment.  It was an unquestionable victory, yet anyone hoping to enter the US was advised to board a plane and get through the gate fast.  The ruling re-set the status quo, but everyone feared it would be reversed on appeal.

Ultimately, though, that decision was upheld, and nationwide, the number of strikes against the Executive Order piled up.  As doubts about the constitutionality of the ban came into focus, the Trump Administration announced that it would work on a revision instead of appeal to the Supreme Court.  This meant more uncertainty for travelers and family members while they waited for fate to unfold.

The second Executive Order did provide some relief.  Iraq was removed from the list of targeted countries, as were restrictions on Permanent Residents and current visa holders.  But the Administration insisted on barring nationals from the remaining six Muslim countries, despite thin objective support for the “national security” rationale it offered.

Moreover, Syrian refugees wound not be singled out permanently, but would now face the same 120 day ban as refugees from other countries.  But that didn’t answer the question of why refugees were even targeted in the name of national security when they are the most vetted category of travelers in the world.  Finally, the exception for “minority religions” that favored Christians was removed, but that just broadened the scope of an already overly-expansive ban, and looked like a pre-text for answering claims that anti-Muslim bias poisoned the over-arching scheme.

The modified Executive Order was blocked before it even went into effect, but the Supreme Court revived it three months later subject to the “bona fide” US relationship exception the Court itself invented.  A later decision clarified that extended family members (such as grandparents, aunts, uncles and cousins) were exempt, contrary to the Administration’s narrower take, but declined to clarify where Resettlement Agencies fit.  Whether their work on behalf of refugees is enough to establish a “bona fide relationship” is now before a lower court.  In the meantime, however, the answer is no.

This legal back and forth is emotionally devastating to people trying to figure out if they are affected by the ban or not.  One day they’re admissible, the next day they are not.

It’s also difficult for community organizations and lawyers to advocate on their behalf when the rules are constantly changing, or written in a way that is nearly impossible to understand.

Take refugees, for example.  We know from the latest round of judicial decisions that a formal assurance of assistance from an authorized Resettlement Agency does not exempt refugees from the travel ban.  Prior to that, however, here’s how the State Department explained the “bona fide relationship” exception:

A refugee who has a relationship with an entity in the United States that is formal, documented, and formed in the ordinary course will be considered to have a credible claim to a bona fide relationship with that entity upon presentation of sufficient documentation or other verifiable information supporting that claim.  The fact that a resettlement agency in the United States has provided a formal assurance for a refugee seeking admission, however, it not sufficient in and of itself to establish a qualifying relationship for that refugee with an entity in the United States.

By way of background, I am a lawyer, with decades of experience making sense of arcane legal jargon.  I know what certain words and expressions mean in context, and can figure out the law’s reach based on how it evolves over time.  But I was stumped.

What’s the difference, I thought, between a relationship that is “‘formal, documented and formed in the ordinary course,” and one based on a “‘formal assurance?”  Refugees signed plenty of paperwork, so maybe that’s what exempted them from the ban – something they signed for the Resettlement Agency.

But the forms are typically signed well after a refugee enters the US and settles into a new home – sometimes days later, during a process called “orientation.”  But to sidestep the ban, the “bona fide relationship” had to be established before arriving, so straining to figure out exactly when the paperwork was signed after arriving didn’t make sense.  Nothing is signed between the refugee and Resettlement agency before the plane lands.

On the other hand, maybe the regulations meant to distinguish, not the nature of a Resettlement Agency’s relationship to a refugee, but whether some other entity besides the Resettlement Agency was involved – an entity that offered more than “formal assurances,” when the refugee was still being processed abroad.  None of this was clear from a plain reading of the guidance, and if I couldn’t make sense of it as an American lawyer, how could a refugee from another country understand.

As of today, we know that a refugee will not be granted admission to the US based on the assurance of an authorized Refugee Resettlement agency.  But the State Department faces continuing pressure to revise its guidelines, and more litigation is expected until they do.  Nothing is certain until the Supreme Court decides the case next term.  It’s all as stable as quicksand.

-Kathy  Bergin

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Posted on July 24, 2017, in Uncategorized and tagged . Bookmark the permalink. Leave a comment.

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