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The United States Supreme Court Upholds Travel Ban 3.0

Last year, in this space, I blogged about the Trump administration’s Travel Ban 3.0 implemented on September 24, 2017. To recap, Travel Ban 3.0 involved Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. The Travel Ban 3.0 had been partially blocked by two preliminary injunctions issued by the U.S. District Courts in Hawaii and Maryland, but those injunctions were lifted by the Supreme Court on December 4, 2017. The bars on North Korea and Venezuela were not included in either order, and have been continuously in effect. Since December 4, 2017, the government was fully enforcing Travel Ban 3.0 on all 8 countries while The Trump administration appealed the District Court orders.

On April 10, 2018, by presidential proclamation, Chad was removed from the list of countries subject to Travel Ban 3.0, because “Chad has made improvements and now sufficiently meets the baseline. . . ”

The Supreme Court of the United States agreed to review Travel Ban 3.0, and oral arguments before the Court were held on April 25, 2018.

On June 26, 2018, the U.S. Supreme Court in a 5-4 decision has held that President Donald Trump’s “Travel Ban 3.0,” can stand. Chief Justice John Roberts delivered the opinion for the Court, joined by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. Justices Kennedy and Thomas also filed a concurring opinion. Two dissenting opinions were filed: one by Justices Stephen Breyer and Elena Kagan, and one by Justices Sonia Sotomayor and Ruth Bader Ginsburg. This resulted in a final vote of 5-4. The case is remanded to the U.S. Court of Appeals for the Ninth Circuit.

Writing for the majority, Chief Justice Roberts stated that President Trump had ample statutory authority to make national security judgments in the realm of immigration.

In her dissent, Justice Sotomayor argues 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. She praised the court for officially overturning Korematsu in its decision but by upholding the travel ban, Justice Sotomayor said, the court “merely replaces one gravely wrong decision with another.”

As of now, certain individuals from Yemen, Iran, Syria, Libya, North Korea, Somalia, and Venezuela will continue to be subject to the ban. Here are the restrictions that will continue to be upheld:

• Syria and North Korea: Entry as immigrants or nonimmigrants is suspended.

• Iran: Entry as immigrants and nonimmigrants is suspended, except for those in valid student (F and M) or exchange visitor (J) status (although these individuals should be subject to enhanced screening and vetting).

• Libya and Yemen: Entry as immigrants and nonimmigrants in business and tourist status is suspended.

• Somalia: Entry as immigrants is suspended and decisions regarding entry as nonimmigrants will be subject to additional scrutiny.

• Venezuela: Entry in tourist or business visitor status is suspended for officials of certain government agencies involved in screening and vetting practices and their immediate family members. Nationals of Venezuela who hold visas should be subject to additional measures to ensure traveler information remains current.

As of now, the restrictions contained in Travel Ban 3.0 will not be applied to:

• Refugees already admitted to the U.S.
• Individuals granted protection under the Convention Against Torture
• Individuals paroled or admitted to the U.S.
• Current lawful permanent residents (Green Card Holders)
• Current visa holders
• Dual nationals travelling on a passport from an unaffected country
• Those travelling on diplomatic or diplomatic-type visas
• Asylees

If one of the above exemptions does not apply, a Consular Officer should consider whether a waiver might be appropriate. There are no categorical or blanket waivers, but the ban itself provides some examples of when a waiver might be appropriate:

• Applicant is traveling as a U.S. government-sponsored exchange visitor.
• Applicant is traveling at the request of a U.S. governmental department or agency for law enforcement, foreign policy, or national security purposes.
• Applicant has previously been admitted for work, study, or other long-term activity and plans to continue that activity.
• Applicant previously established significant contacts with the U.S. for work, study, or other lawful activity.
• Applicant seeks to enter the U.S. for significant business or professional obligations and denial of entry would impair those obligations.
• Applicant seeks to enter the U.S. to visit or reside with a close family member (e.g., spouse, parent, or child).
• Applicant is an infant, young child, or adoptee, or an individual needing urgent medical care.
• Applicant has been employed by or on behalf of the U.S. government.
• Applicant is traveling for purposes related to an international organization under the International Organization Immunities Act (IOIA), travelling for purposes of conducting meetings or business with the U.S. government, or travelling to conduct business on behalf of an international organization not designated under the IOIA.
• Applicant is a Canadian permanent resident who applies for visa in Canada.

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