United States: US Supreme Court Upholds Travel Ban

Last Updated: July 3 2018
Article by Eric S. Bord and Nicholas Hobson

The Court’s decision affirms President Donald Trump’s authority to ban noncitizens from entry into the United States if he finds it necessary for the country’s protection.

The US Supreme Court on June 26 upheld the president’s most recent presidential proclamation (the Proclamation) of September 24, 2017, which impacted entry into the United States by individuals from eight named countries.1 The Court’s 5-4 decision overturns a preliminary injunction previously issued by the US District Court for the District of Hawaii and remands it to the US Court of Appeals for the Ninth Circuit for further proceedings consistent with its holdings. Chief Justice John Roberts authored the majority opinion, in which he wrote that US immigration law provides the president “broad discretion to suspend” entry into the United States by noncitizens upon a finding that allowing them to enter would be “detrimental to the interests of the United States.”

The current state of the travel ban is described in full below.

Country-Specific Restrictions

The country-specific visa and entry restrictions imposed by the Proclamation are the following:

  • Libya/Yemen—Entry into the United States by nationals of these three countries seeking initial admission as immigrants2 or as nonimmigrants on business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas is suspended
  • Iran—Entry into the United States by nationals of Iran seeking initial admission as immigrants or nonimmigrants is suspended, except that entry by nationals of Iran under valid student (F and M) and exchange visitor (J) visas is not suspended (although such individuals will be subject to enhanced screening and vetting requirements)
  • North Korea/Syria—Entry into the United States by nationals of North Korea and Syria seeking initial admission as immigrants or nonimmigrants is suspended
  • Somalia—Entry into the United States by nationals of Somalia seeking initial admission as immigrants is suspended, and nonimmigrants traveling to the United States will be subject to enhanced screening and vetting requirements “to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.”
  • Venezuela—Entry into the United States by certain Venezuelan government officials and their immediate family members seeking admission as nonimmigrants on business (B-1), tourist (B-2), or business/tourist (B-1/B-2) visas is suspended3

Exceptions

The Proclamation notes that, subject to certain exceptions shown below, the suspensions of and limitations on entry shall apply only to foreign nationals of the designated countries who (1) are outside of the United States on the applicable effective date; (2) do not have a valid visa on the applicable effective date; and (3) do not qualify for a visa or other valid travel document. The US Department of Homeland Security (DHS) previously confirmed following the September 24 order that the Proclamation is expressly limited to individuals who do not have a valid visa on the effective date of the Proclamation.

Notwithstanding the travel limitations described above, the suspension of entry pursuant to the Proclamation will not apply to the following:

  • US permanent residents
  • Foreign nationals admitted to or paroled into the United States on or after the effective date of the Proclamation
  • Foreign nationals who have a document other than a visa (such as an advance parole document) valid on the effective date of the Proclamation or issued on any date thereafter that permits travel to the United States
  • Dual nationals of a designated country, as long as the individual travels on a passport issued by a non-designated country
  • Foreign nationals 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
  • Foreign nationals who have been granted asylum, refugees who have already been admitted to the United States, or individuals who have been granted withholding of removal, advance parole, or protection under the United Nations Convention Against Torture

The Proclamation describes the restrictions imposed upon nationals of the eight affected countries as “conditional” and states that they may be lifted depending upon future cooperation with the US government’s efforts to impose enhanced security practices—such as adopting electronic passports, sharing criminal data, reporting lost/stolen passports, and providing data on known and suspected terrorists.

As we described in our prior alerts, applicants not otherwise subject to the Proclamation may still face additional scrutiny and delay during their visa application processes. Effective May 25, 2017, consular offices implemented the Trump administration’s “extreme vetting” efforts through a three-page supplemental questionnaire that requests, among other information, passport numbers, employment history, and travel history—including the source of funding—over the past 15 years. Affected applicants can also expect to be asked to hand over their phone and other electronic devices, including contact lists and photographs, for close examination.

Footnotes

1 The Trump administration originally included Chad among the eight but removed it in April 2018.

2 The prohibition on the entry of “immigrants” applies only to persons holding immigrant visas and seeking to enter the United States with such visas for the first time. It does not apply, as discussed below, to persons holding permanent resident cards.

3 Those affected are officials of Venezuelan agencies involved in screening and vetting procedures, including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations, as well as their immediate family members.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

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