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Update on Supreme Court Decision on Refugee Executive Order 13780

 

What happened with the Supreme Court decision?

 On June 26, 2017, the U.S. Supreme Court decided it will hear two cases, Donald J. Trump, President of the United States, et al v International Refugee Assistance Project, et el (Trump v IRAP) and Donald J. Trump, President of the United States v Hawaii, et el (Trump v Hawaii). These cases concern Sections 2 and 6 of Executive Order 13780 (EO 13780), that is, the 90-day ban that denies entry to the United States for certain nationals from six Muslim-majority countries, the 120-day ban that denies entry for refugees, and the reduction in refugee admissions for FY 2017 to 50,000. The Supreme Court consolidated the cases together and will hear them in October 2017.

Meanwhile, what happens with the travel ban and the refugee ban of EO 13780?

  •   The Supreme Court has so far decided that between now and when these cases are heard in October 2017 that EO 13780 will continue to be halted in part.1 Immigrants and non- immigrants from the six Muslim-majority countries, and refugees will continue to be able to come to the United States as long as they have “any bona fide” relationship with a person or entity in the United States. However, someone without any such relationship would be at least temporarily banned from entering the United States according to the terms of Sections 2 and 6 of EO 13780. The Administration announced that it will begin executing its partial ban on Thursday, June 29, 2017.

  •   If the number of refugees with such bona fide relationships leads the annual refugee admission number to exceed 50,000 refugees for FY 2017, the Supreme Court ordered that such additional refugees shall still be allowed to enter.

What are bona fide relationships?

  •   Bona fide relationship includes “people or entities in the United States who have relationships with foreign nationals [e.g., a refugee] abroad, and whose rights might be affected if those foreign nationals [e.g., refugees] were excluded.”2

  •   For example, a refugee has a bona fide relationship with an individual, if the individual is in “a close familial relationship” with the refugee.3 For a refugee to have a bona fide relationship with an entity, “the [refugee’s] relationship [with the entity] must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2 [EO 13780].4

How will this Supreme Court order impact refugees’ ability to access the U.S. resettlement system in the short-term?

 

  •   Refugees with bona fide relationships with U.S. people or entities as described above will be able to continue to arrive to the United States.
  •   Beyond the immediate description, currently, we are seeking clarity about how the “bona fide relationship” definition is to interpreted on the ground.

  •   We are hopeful and will advocate that, among others, this would allow admission of all refugees who are assured with resettlement agencies as of June 29; people who are eligible through the Preference 3 refugee category, through Preference 2 categories that are based on family relationship; through the Preference 1 category where the refugees have proven family relationships, and through family unity cases such as I-130 and I-730 that relate to Visa 92/ 93 cases.

  •   Note also that even if Section 6 of EO 13780 is fully implemented, there is allowance for admission for refugees “who, before the effective date of the order, have been formally scheduled for transit by the Department of State” and also admission of refugees who have been selected after a case-by-case determination for certain refugees for whom denial of entry would cause “undue hardship.” This will hopefully include unaccompanied refugee minors and others with immediate protection concerns.

  •   We have received guidance from the Department of Justice and Department of State, that “refugees who are scheduled to travel through July 6 may procede with travel to the United States.”

  •   The Department of State is awaiting guidance on cases that are booked to arrive after that date. We will continue to advocate for all refugees already booked for travel after this date.

  •   The number of refugees able to receive protection between now and the Supreme Court ruling in October 2017 will depend on how broadly and generously the scheduled-for- travel, bona fide relationships, and humanitarian waiver provisions are interpreted and applied. We are advocating and will continue to advocate for a broad and generous interpretation of all these provisions.


What are the possible outcomes of the Supreme Court case in October 2017?

  •  The Supreme Court may make a decision that ends the case in whole or part or may make a decision that refers the case to a lower court for further action. The long-term impact of these cases on immigrant, nonimmigrant, and refugee admissions and vetting remains to be seen.

What should we do in the meanwhile with our resettlement programs?

  •   Please continue to follow up with us for updates as we monitor the situation and engage with PRM, DHS, and ORR on the next steps.

  •   Please contact us if you have individuals who need immediate case or travel assistance at This email address is being protected from spambots. You need JavaScript enabled to view it.. If you are aware of refugees having trouble at an airport contact This email address is being protected from spambots. You need JavaScript enabled to view it..



    1 The Supreme Court asked the parties in this case to submit arguments regarding whether the travel ban part of the case is moot, that is, whether it is still an unresolved conflict, if the 90-day suspension runs out before the Supreme Court hearing occurs..
    2 Order on Application for Stay and Writ of Certiorari, Trump v. IRAP and Trump v. Hawaii, 582 U.S.___ 11-12 (June 26, 2017). 3 The Supreme Court provides “close familial” relationship as an example on page 12 in the context of Section 2(c) for applying the definition of the bona fide relationship to a person. It says that a similar application is appropriate in the refugee context of Section 6, but it does not explicitly limit it to familial relationships. In other words, it arguably leaves open the possibility that a relationship with a friend could constitute a bona fide relationship, particularly since the placement of refugees in the U.S. is often significantly based on such ties. Ibid.
    4 Ibid.

Update on Supreme Court Decision on Refugee Executive Order 13780 4 pm, 6 27 2017

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