U.S. Supreme Court Upholds Trump's Travel Ban
On June 26, 2018, the Supreme Court upheld the Trump administration’s Travel Ban (version 3.0) by a 5-4 vote. Formally referred to as the September 24, 2017, Presidential Proclamation, the Travel Ban restricts travel to the United States for nationals of the following seven countries: Iran, Libya, Syria, Yemen, Somalia, Venezuela, and North Korea. For Venezuela, the travel ban is limited to certain government officials and their family members visiting the U.S. on business or tourist visas (B-1/B-2).
The Trump Administration identified these seven countries because of their capacity, ability, and willingness to cooperate with U.S. identity-management and information-sharing policies as well as each country’s risk factors, such as whether it has a significant terrorist presence within its territory. The Travel Ban imposes the most severe restrictions on Syria and North Korea for failure to cooperate with the U.S. in any respect. Chad originally was on the list of countries, but later was removed after it met minimum baseline standards. Similarly, Iraq had been on the first version of the travel ban and later was dropped, although nationals of Iraq will face heightened scrutiny when seeking visas to the United States.
Supreme Court’s Reasoning for Upholding the Travel Ban
In the majority opinion, Chief Justice Roberts found that the President has broad discretion under the immigration statute to suspend the entry of foreign nationals into the U.S. provided the President “find[s]” that the entry of certain aliens to the U.S. “would be detrimental to the interests of the U.S.” Roberts pointed to the administration’s comprehensive evaluation of every country’s compliance with the information and risk assessment baseline, which supported the necessity of the entry restrictions for certain countries.
With regard to the constitutional claim that the Travel Ban violates the Establishment Clause of the First Amendment based on religious animus against Muslims, Chief Justice Roberts acknowledged that the Court could consider the evidence of anti-Muslim statements made by the President, but explained that the Court will uphold the Proclamation “as long as it can be reasonably understood to result from a justification independent of unconstitutional grounds.” The Court was persuaded by the government’s national security justification for the Proclamation. Roberts wrote that “there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility.”
The majority reasoned that the premise of the Proclamation was legitimate: preventing entry of nationals who cannot be adequately vetted and compelling other nations to improve their practice. It also noted that the Proclamation “says nothing about religion.” Furthermore, the majority found it persuasive that entry restrictions were being limited to countries that were previously designated by Congress or prior administrations as posing national security risks. As such, the majority rejected claims that the Travel Ban violates the Constitution.
In light of the Supreme Court’s June 26, 2018, decision, Travel Ban 3.0 is in full effect.
Exemptions
The Travel Ban exempts certain categories of individuals from the travel restrictions. Specifically, the Travel Ban does not apply to nationals of the seven countries who fall into one of the following categories:
· Lawful permanent residents;
· Foreign nationals who are admitted to or paroled into the U.S. on or after the applicable effective date;
· Foreign nationals who have a document other than a visa (e.g., transportation letter, boarding foil, advance parole document) valid on the applicable effective date or issued on any date thereafter;
· Dual nationals of a designated country who are traveling on a passport issued by a non-designated country;
· Foreign nationals traveling on diplomatic visas, NATO visas, C-2/U.N. visas, or G-1, G-2, G-3, or G-4 visa; or
· Foreign nationals who have been granted asylum in the U.S., refugees who have been admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Waivers
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, as a matter of 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.
Between December 8, 2017, and June 15, 2018, only 809 visa applicants have been cleared by the U.S. Department of State for waivers.
Summary Chart
Iran
Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they are subject to enhanced screening.
Libya
Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
North Korea
Suspends the entry of all immigrants and nonimmigrants.
Somalia
Suspends the entry of immigrants, and requires enhanced screening of all nonimmigrants.
Syria
Suspends the entry of all immigrants and nonimmigrants.
Venezuela
Suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2).
Yemen
Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).