Thursday June 29, 2017
And what we don’t.
A volunteer attorney and volunteer translator stationed at Los Angeles International Airport in February, when the first version of President Trump’s travel ban was in effect. Kyle Grillot/AFP via Getty
At 10:30 am Eastern Thursday, 72 hours after the Supreme Court gave the Trump administration a rare and significant court victory, the Trump “travel ban” will be legally allowed to go into effect.
What that’s actually going to mean for people seeking to enter the US who are from Iran, Libya, Somalia, Sudan, Syria, or Yemen — or for people seeking to enter as refugees — is still unclear, at best.
A diplomatic cable sent to staff at US embassies and consulates Wednesday night, obtained by the Associated Press, instructs federal employees about when they should deny visas to people from those countries for the next 90 days — and when they should approve them (or, at least, not deny them because of the ban) because the applicant has a “bona fide relationship” with someone or something in the US, as the Supreme Court mandated the Trump administration has to do.
But the cable didn’t settle some of the biggest questions about how the Trump administration will interpret the Supreme Court’s order, and how it will implement the current version of the “travel ban.” The executive order partially allowed to go into effect Thursday (the second version attempted by the Trump administration), has never actually been put into effect before today; the first version, signed in January, was held up in court after being in effect for barely a week.
In particular, the cable doesn’t explain whether a refugee who’s been placed with a resettlement agency in the US has a “bona fide relationship” — something that could make the difference in tens of thousands of refugees coming to, or being barred from, the US in the 120 days that the refugee ban is supposed to be in place.
And it doesn’t clarify how the travel ban will be interpreted at airports around the world, as people attempt to board planes to the US — or in the US, after they land.
Here’s what we know — and what we don’t.
What we know
Starting at 8 pm Eastern on Thursday, US consulates and embassies around the world will no longer approve visas for people traveling on passports from Iran, Libya, Somalia, Sudan, Syria, or Yemen to come to the United States, unless those people can establish a “bona fide relationship” with someone or something in the US.
A “bona fide relationship” can be with a business or university in the US — for example, if the person has a job offer or a conference invitation — or it can be with certain family members.
Only certain family members, however, will count as “bona fide” relationships. According to the AP, visa applicants (or refugees seeking to be admitted to the US) who have a “parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law or sibling” in the US will be approved because that relationship counts as “bona fide.” But other relationships don’t — including grandparents and grandchildren, fiancés, aunts, uncles, nieces, nephews, and cousins.
People traveling for business, meanwhile, are only going to get visas if the US government determines that they’re not just being invited to the US to circumvent the ban.
Some exceptions to this rule may be made, for example, if someone is in need of urgent medical care or doing business with the US government.
Anyone who already has a valid visa as of 8 pm Eastern on Thursday is supposed to be allowed into the US, according to President Trump’s executive order.
What we don’t know
- How and when Customs and Border Protection officials are
going to be implementing the ban at US airports. In theory, because
people who already have valid visas are supposed to be allowed into the
US — and because no one’s allowed to board a US-bound plane without a
valid visa — there shouldn’t be any problems for anyone landing in the
US. However, the overly-aggressive and inconsistent implementation
of the first version of this executive order, back in January, has made
many lawyers and advocates wary of what CBP is (or isn’t) telling its
agents to do — and there’s no public guidance about how it’s instructing
agents to implement this ban. Pro bono lawyers are already stationed at
many international airports around the US, hoping to monitor how people
coming in are being treated.
- What the ban means for refugees
who don’t have “bona fide” family members in the US according to the
categories laid out by the State Department. Many advocates have argued
that the Supreme Court’s ruling should permit nearly all refugees to
enter the US, because refugees have to be placed with a resettlement
agency before entering the country, and that should count as a “bona
fide” relationship. The State Department’s cable — which said that a
relationship with an organization was “bona fide” as long as it was
“formal, documented, and formed in the ordinary course” — seems to back
this up. However, the Supreme Court (and the State Department) didn’t
explicitly spell out whether resettlement agencies count. Some
resettlement groups have been assured that refugees whose travel to the
US has already been arranged, and who are scheduled to come in the next
week or so, will be able to come as planned; but beyond that, refugees
and resettlement groups are still under a cloud of massive uncertainty.
- How generous consular officers are going to be in granting waivers for “undue hardship.
- How transparent consular officers will be in denying visas. The US government can deny a visa for almost any reason,
and it’s near-impossible to challenge a visa denial. People who are
from the 6 affected countries but have a “bona fide relationship” could
still be denied visas for other reasons. If such denials are common, it
might raise the suspicion that the government is using other criteria
for visa denial as a backdoor way to expand the scope of the ban.
- Whether US courts are going to agree with the Trump
administration’s interpretation of “bona fide” family members. US
immigration law has always made distinctions among different types of
family relationships. But the Supreme Court’s ruling didn’t make any
distinctions among degrees of relationship when it set the standard for a
“bona fide” relationship on Monday, and it’s not clear whether the
courts will agree that it’s fair to say a grandmother doesn’t have a
“bona fide” relationship with her grandchild. It is a near-certainty
that, as soon as visas start getting denied under the ban, the US-based
relatives will claim the Trump administration has violated the terms of
the Supreme Court’s order by implementing the ban even when it wasn’t
supposed to, and there will probably be a profusion of lawsuits. The
question is whether federal courts will side with families or with the
government, and whether — with the Supreme Court out for the summer —
various courts around the country will come to different conclusions and
create a patchwork of interpretations of the ban.