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Jun 27, 2018

UPDATE: Trump’s Executive Order Travel Ban Upheld by Supreme Court in 5-4 decision

Jonathan A. Grode

On Tuesday, June 26, 2018, in a 5-4 decision in Hawaii v. Trump, the Supreme Court of the United States upheld President Donald Trump's 2017 travel ban directed at several mostly Muslim countries. The Majority opinion, written by Chief Justice John Roberts, rejects the challenge that the ban exceeded the President’s authority. This decision means that travel restrictions will continue to be in effect for the seven countries that remain on the list.

In the majority opinion, Chief Roberts argued that the policy has "a legitimate grounding in national security concerns," although the Court included "we express no view on the soundness of the policy."  The national security argument has been infamously used in the 1944 case of Korematsu v. United States, in which 23-year-old Fred Korematsu sought to fight his and other Japanese citizen’s placement into internment camps after the bombing of Pearl Harbor. However, Chief Justice Roberts states that “Korematsu was wrong the day it was decided.” In dissent, Justice Sonia Sotomayor stated, "a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus," and added "history will not look kindly on the court's misguided decision today, nor should it."  Justice Sotomayor goes on to draw stark parallels between this decision and that of Korematsu and further denouncing the decision as “merely replacing one gravely wrong decision with another” as this decision is based a similar animosity toward a specific group of people.

Executive Order 13769, or “Protecting the Nation from Foreign Terrorist Entry into the United States” was issued by President Donald Trump and in effect from January 27, 2017, until March 16, 2017. Also referred to generally as the “travel ban,” this order imposed a number of immigration restrictions, including lowering the number of refugees to be admitted into the United States in 2017 to 50,000, suspending the U.S. Refugee Admissions Program (USRAP) for 120 days, suspending the entry of Syrian refugees indefinitely, and directing some cabinet secretaries to suspend entry of those whose countries do not meet adjudication standards under U.S. immigration law for 90 days. Homeland Security listed these affected countries as Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. As a result of this order, over 700 travelers were detained, and up to 60,000 visas were "provisionally revoked".

The ban has since changed shape. Executive Order 13769 was later was superseded by Executive Order 13780, which placed limits on travel to the U.S. from certain countries and by all refugees who do not possess either a visa or valid travel documents. On September 24, 2017, President Trump signed Presidential Proclamation 9645, further defining the travel ban. This revision ultimately restricts travel from five countries with mostly Muslim populations: Iran, Libya, Somalia, Syria, and Yemen. It also affects travelers from two non-Muslim countries: North Korea and some Venezuelan government officials and their families. A sixth majority Muslim country, Chad, was removed from the list after the administration noted it improved "its identity-management and information sharing practices." In his proclamation, Trump used the removal of Chad as an example to show that these restrictions are premised only on national security concerns. On December 4, 2017, the Supreme Court allowed the ban to go into full effect, pending resolution of the case.

Green and Spiegel will be closely monitoring developments on this issue. Contact us today for more information relating to changing administrative priorities and ensuring your immigration-related obligations are met. 

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