The Supreme Court ruling on travel ban – Part 2

Posted on August 16, 2017   // 0 Comments  

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Image Courtesy of CNN.com

Recently, the U.S. Supreme Court (SC) issued a supplemental ruling on its June 26, 2017 preliminary order in Trump v IRAP (page 8, 582 U.S. 2017, Nos. 16-1436, 16A1190 and 16-1540, 16A1191) that allows the enforcement, in a limited sense, of President Trump’s travel ban against nationals of six countries.

The preliminary order has specific instruction that those with “bona fide relationships,” such as familial relationships as well as employment contracts with U.S. employers and student visas, would be allowed entry if the exclusion causes them undue hardship.

On July 19, 2017, the SC further ordered that grandparents and cousins of U.S. citizens or lawful permanent residents originating from the six countries — namely, Iran, Yemen, Syria, Libya, Somalia and Sudan — should be excluded from the travel ban.  The supplemental order just expanded the definition of “bona-fide familial relationships.”

Consistently, regard for “family unity” as one of the bedrocks of U.S. immigration stays an important consideration in the judicial system.  But should this policy take precedence over the government’s promise to protect its land from national security risks?

Family member or not, one who has ties with international terrorist groups remains connected thereof.  It is easy to maneuver facts and easy to change circumstances to conform to the goals.

So far, terrorist attacks are acts believed to be perpetrated by homegrown terrorists.  Will entry of terrorists during the time that the travel ban is in place really matter?

In the fall of this year, the Supreme Court is expected to make a decision on the merits of the petition for certiorari filed by the government.  Opposition to the travel ban asserts that the travel ban is an affront to the constitutionally protected establishment clause of the First Amendment (no law shall be passed abridging the freedom of religion) because it is motivated by prejudice against Moslems or those who worship Islam and not by reasons of national security.

The government’s stand is that the President possesses the power to “suspend the entry of all aliens or any class of alien)s” whenever he determines that their entry would be “detrimental to the interests of the United States.” 

But let’s stop and ponder for a while as to what is the bottom line of Trump’s executive orders?  Peeling through the executive orders, the answer is simple: The administration wants only to suspend the entry of nationals from the six countries  for 90 days while the Executive Department “is working to establish adequate standards … to prevent infiltration by foreign terrorists.”

The suspension of entry of these people will further “temporarily reduce investigative burdens on agencies [Trump v IRAP , supra, page 3).”

The second executive order merely asks for 90 days to do the following:

(A)  for Secretary of Department of Homeland Security (DHS) to make a global review on how these 6 countries are giving information about their nationals; (b) for DHS to turn over review results to the President; and (c)  for countries found to be deficient to be given 50 days to alter their practices.

As for the refugees,  the adjudication process of their applications is suspended for 120 days while the Secretary of State reviews the adequacy of the refugee application and adjudication procedures …” (Ibid).

These are temporary measures in line with the objective of keeping the country safe. At the most, these are administrative procedures that the Executive Department is tasked to do.

The Supreme Court is fair and contrite in keeping the balance of opposing interests at bar.  But we will wait and see what will be its decision on the merits of the certiorari petition.


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Maria Rita Reyes-Stuby is a licensed attorney in Michigan. She is a graduate of the University of the Philippines College of Law. She specializes in immigration and practices in Las Vegas, Michigan, California and other states... Bernadette Bretana, a graduate of the Ateneo Law School and Ms. Stuby are licensed attorneys in the Philippines. Please call @702-403-4704 or email her at stubylaw@aol.com for any questions on this article.