US agencies grapple with court order
DEPARTMENTS TRY TO FIGURE OUT WHAT IT MEANS TO HAVE BONA FIDE TIES TO US RESIDENTS, ENTITIES
A day after the US Supreme Court reinstated partially President Donald Trump’s travel ban, federal agencies were wrestling with how to interpret and implement the justices’ will.
The court’s decision allows the government to deny entry to people from six Muslim majority countries who do not have existing ties to the US — language that requires the government to figure out what it means to have a “bona fide” relationship with American residents or entities. The term is not defined in US immigration law.
The early indications are that the administration will use the decision to take a tough line on travellers from the six countries: Syria, Sudan, Iran, Yemen, Libya and Somalia. A senior US official said the Trump administration has plans in place to relaunch the stalled ban and tourists will be among those kept out.
Under these plans, largely orchestrated by White House adviser Stephen Miller, tourists from those countries and any academics, lecturers or others invited to speak or make presentations in the US will be barred. Those groups are regarded as unable to show a substantial and pre-existing tie to a person or institution in the US.
After the court acted, the Department of Homeland Security (DHS) initially referred questions to the Department of Justice, which referred questions back to DHS. State Department officials were frustrated trying to figure out how to interpret the ruling, according to three officials familiar with the discussions.
“You have to take an order that at the end of the day is pretty vague and translate it into something that real people can implement, in real time,” said Leon Rodriguez, a former director of Citizenship and Immigration Services told Bloomberg.
The State Department said that it will “begin implementation” of the ban 72 hours after the Supreme Court decision.
Early indications are that tourists from six targeted countries and any academics, lecturers or others invited to speak or make presentations in the US will be barred
President Donald Trump’s travel ban has been partially revived by the Supreme Court, but his celebratory tweet about the decision belied his government’s confusion about how to turn the ruling into official policy.
Hours after the court acted on Monday – and after Trump tweeted he was “very grateful” – federal agencies were wrestling with how to interpret and implement the justices’ will.
The court’s decision allows the government to deny entry to people from six predominantly Muslim countries who don’t have existing ties to the US – language that requires the government to figure out what it means to have a “bona fide” relationship with American residents or entities. The term isn’t defined in US immigration law.
After the court acted, the Department of Homeland Security initially referred questions to the Department of Justice, which referred questions back to DHS. State Department officials were frustrated trying to figure out how to interpret the ruling, according to three current and former officials familiar with the discussions.
“You have to take an order that at the end of the day is pretty vague and translate it into something that real people can implement, in real time,” said Leon Rodriguez, a former director of Citizenship and Immigration Services during the Obama administration who’s now a partner at Seyfarth Shaw LLP. “I can just picture the kinds of meetings that are going on.”
The State Department put out a statement on Monday evening saying that it will “begin implementation” of the ban 72 hours after the Supreme Court decision.
“We will keep those travelling to the United States and partners in the travel industry informed as we implement the order in a professional, organised, and timely way,” spokeswoman Heather Nauert said.
The State Department statement didn’t provide details on how broadly the government would interpret the ruling or who would determine whether aspiring travellers have legitimate connections to the US. In addition to those seeking to travel to the US from Iran, Libya, Yemen, Somalia, Sudan and Syria, the “bona fide” relationship test must also be met by those covered under Trump’s temporary ban on refugees.
Seth Stodder, a former assistant secretary for border, immigration and trade policy at Homeland Security, said the department is better prepared than in January. White House spokesman Sean Spicer said the Justice Department was reviewing the decision, but declined to answer questions about the government’s next steps.
The Supreme Court agreed to consider the merits of the case in October, meaning the 90-day travel ban will expire before the high court hears arguments. The fresh uncertainty may force lower-court judges to again weigh in on the immigration fight just as hopeful visitors, immigrants and refugees believed the dispute was winding its way towards a conclusion.
Trump’s original January 27 order was announced with no advance warning. The delays and protests that erupted at airports may explain assurances issued by administration officials after the Supreme Court ruling.
Airlines most at risk of being affected by the ban continued their service as usual yesterday, with an immediate reaction stymied by the lack of clarity and the region’s Eid Al Fitr holiday.
The Department of Homeland Security could issue a definition of a “bona fide” relationship, and say precisely how the travel ban will be enforced when travellers apply for visas at American embassies and consulates and arrive at US airports.
In its 13-page order temporarily allowing a portion of the travel ban to go into effect tomorrow, the justices detailed some examples of a bona fide relationship. They include a foreign national who wishes to live with or visit a family member, a student who has been admitted by a university or a worker with an offer of employment from a US business.
But as Justice Clarence Thomas warned in arguing the entire ban should have taken effect immediately, even this temporary order may prove unworkable and lead to a “flood of litigation”.
Courts “will struggle to determine what exactly constitutes a ‘bona fide relationship,’ who precisely has a ‘credible claim’ to that relationship,” Thomas said.