Login | March 18, 2019

A look at Trump administration’s travel bans

Legal News Reporter

Published: July 14, 2017

It’s been about three weeks since the U.S. Supreme Court decision that allowed portions of the Trump Administration’s travel and refugee bans to take effect, but some experts say there’s still some confusion over the guidelines.

The June 26 decision took effect on June 29.

The travel ban prevents those in Iran, Libya, Somalia, Sudan, Syria and Yemen from traveling to the United States for 90 days beginning on June 29 unless they can demonstrate “a credible claim of a bona fide relationship with a person or entity in the United States.”

Additionally all refugees, regardless of their country of origin, are banned from entering the U.S. for 120 days, unless they have already been granted refugee status, and/or can qualify for the “bona fide relationship” exception.

The ban caps the overall number of refugees who will be admitted in 2017 at 50,000.

Administration officials said refugees who had been vetted and booked travel would be allowed to enter the U.S. through July 6. However, the Los Angeles Times has reported that the date could be extended by as much as a week since the 50,000-person refugee cap had not been met as of June 30.

Phil Marcin Ph.D., assistant professor of instruction in the political science department at The University of Akron, said the version of the ban that was approved by the high court is much less restrictive than initially envisioned by the Trump administration.

“The first version of the travel ban (known as Executive Order 1), which President Trump signed in late January, included Iraq,” said Marcin. “The 9th Circuit Court of Appeals stopped that ban from taking effect. They also struck down the second version, as did the 4th Circuit.

“While six justices supported the scaled back version of the second ban (EO-2), three justices including the newest addition, Justice Neil Gorsuch, would have allowed the complete ban, providing Trump with much more of a win.”

Cuyahoga Falls immigration attorney Farhad Sethna said the ban would have a minimal impact.

“I don’t think that either the travel or refugee ban will keep that many people out of the United States,” said Sethna.

“First of all anyone who has a valid nonimmigrant visa issued before June 29, the date the administration implemented the Supreme Court order, is not affected,” he said. “If their visas were canceled they can contact a U.S. consulate for issuance of a travel document to be allowed to travel to the U.S.A.”

Sethna said the refugee ban would delay the process for some refugees, but only for 120 days.

“It should be lifted after that time, unless extended by another EO (executive order) or through a law passed by Congress and signed by the president,” he said.

To be exempt from the bans, a person must be able to prove he/she is employed by a U.S. company, “a lecturer invited to address an American audience,” a student admitted by a U.S. university or that he/she has a connection to a “qualifying” family member approved by the State Department.

The high court also noted that any person seeking admission as a refugee who meets the above qualifications couldn’t be excluded “even if the 50,000-person cap has been reached or exceeded.”

Marcin said the main source of confusion pertains to which family members qualify as “credible” connections.

“The Supreme Court left it up to the executive branch to make that determination,” said Marcin, who teaches Supreme Court and Civil Liberties as well as Supreme Court and Constitutional Law.

As of July 7, relatives who qualified included parents, stepparents, children, sons-in-law, daughters-in-law, parents-in-law, siblings as well as half-sisters, half-brothers, spouses and fiancés.

Those not considered close family relationships are grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law.

“The main criticism is that the Trump administration has defined these relationships in an extremely narrow way by focusing on the nuclear family and excluding extended family,” said Marcin. “The criticism is that this does not comply with the spirit of the Supreme Court’s guidance.

“There have already been court challenges to the list of exclusions,” said Marcin. “The fact that grandparents who are blood relatives do not qualify and non-blood relatives do has led to a lot of criticism.

“The list has changed since the ban took effect,” he said. “In the beginning fiancés were not included and now they are. It’s likely to continue to change, which creates confusion and uncertainty.”

Proving a “bona fide relationship” with the U.S. may be particularly difficult for refugees, who do not have jobs and are less likely to have qualifying family members in the U.S.

Refugees seeking entry are placed with U.S. resettlement agencies.

Sethna said most have likely forged a sufficient bond with such an entity to gain entry.

However the Supreme Court decision does not specifically state that resettlement agencies constitute a “bona fide relationship.”

“The Trump administration has indicated that a resettlement agency connection may not be enough on its own for a refugee to gain entry,” said Marcin.

Sethna said while the bans would only amount to a delay in the process, the message sent is likely to leave a dark cloud hanging over the United States.

“This ban affects our standing in the world as a bastion of democracy,” said Sethna. “When someone has been a refugee living in a camp for a few years, they’ve already gone through an extreme vetting process and for the U.S. to say we still don’t have enough information does not make sense.

“It calls into question whether we are a nation of laws and of men or whether Donald Trump will simply be allowed to make up policies to fulfill campaign promises.

“Other countries are keeping a careful watch on U.S. policy. For example, I’ve had calls from clients in Austria, Mexico and India asking how the travel ban will affect business and work visa applications already in process.”

The U.S. Supreme Court is scheduled to hear oral arguments in the case when the justices begin their new term in October.

However, Marcin said there’s no guarantee a decision will be issued.

“By the time they hear oral arguments in October, the 90-day travel ban will presumably expire and the refugee ban will be coming to an end,” Marcin said. “So many of the issues may be moot.”

The travel and refugee bans aside, Sethna said other U.S. policies, including caps on nonimmigrant visas, are likely to continue under the Trump administration.

“The caps are already deterring many U.S. companies from seeking visas for skilled foreign workers,” Sethna said. “Instead, when it’s feasible, these businesses set up development centers in the country instead of trying to secure scarce H-1B Visas.

“As an example, Microsoft is one major U.S. company that has set up operations in India. It saves the companies the expensive filing and legal fees, makes planning easier since there’s no guarantee that your application for a U.S. visa will be granted, and it translates into happier workers because they don’t have to leave family and friends.”

Sethna said he too has clients that are following in Microsoft’s footsteps.

“What those arguing against skilled immigration may not understand is that for every foreign national who stays home, the U.S. loses payroll taxes and any dollars the person might have spent while here,” said Sethna. “Many of these skilled workers do buy homes, and with that, durable goods, cars, and pay taxes on their income and their purchases.

“If these restrictive policies continue, more companies may go the way of Microsoft and the U.S. economy could suffer.”